The supreme court case Schenck v. United States said at the time that speech discouraging people from being drafted was prohibited.
Chaplinsky v. New Hampshire is another one.
Just astoundingly awful
I am astounded you'd bother to qualify that "with respect to the First Amendment." They've made stacks of awful rulings, period. Some of their greatest hits: Dred Scott v. Sanford; Plessy v. Ferguson; Hammer v. Dagenhart; Bush v. Gore; Kelo v. City of New London; DC v. Heller; Dobbs v. Jackson.
The Supreme Court is supposed to be above politics but time and again proves it's a vehicle of partisan politics, and one megalomanic sociopath can slant the Court for decades.
The Supreme Court is just that, 'Supreme'. So personally I'd expect supremely capable judges at such a complex and important post.
The fact that that is considered 'quaint', is a testament to the current state of American democracy, and the self confidence of the Americans in it. I hope it's just a phase, and that you guys can work it out.
Huh? The purpose of SCOTUS is very much partisan politics and always has been. It's actually the nature of the job.
Wickard v. Filburn deserves a mention too.
If you are a gun control fanatic, I could see where that one would rub you the wrong way, but it was a fantastic piece of legal scholarship.
Those gun control regulations?
If there are actual gun control regulations from the post-revolutionary period, I'm sure that they'll be used to defend NY's and CA's modern regulations soon.
But we could also talk about the exceedingly common laws against public carry if you want: https://www.yalelawjournal.org/forum/firearm-regionalism-and...
I'm afraid not, and not by a mile. He based his decision on his unfounded and unsupportable belief that most Americans believed that self-defense was inclusive to the 2nd, based on nothing but what he thought, and he was wrong, because most Americans are not idiots, but even if he was right (which he definitely was not), the Supreme Court is not and not supposed to be a democratic institution swayed by the whims of alleged popular opinion.
In considering the 2nd Amendment, the Framers debated self-defense and intentionally left it out of the Amendment. Scalia knew this, being a strict Constitutionalist, probably personally reviewed the minutes of the Constitutional Congresses where it is very clear the Framers did not want self-defense inclusive to the 2nd. They did not want an armed citizenry. The 2nd only concerns militia and tyranny. The proper exercise of the 2nd looks exactly like Black Panthers surrounding the Alameda County Courthouse in Oakland, California in 1968. It does not look anything like Florida (and elsewhere) Stand Your Ground nonsense, nor Texans shooting kids in the back.
What Scalia did was criminal, bastardizing the 2nd, changing it from a selfless right to stand against tyranny into a selfish right to protect self and property. Self-defense is far more fundamental than the Bill of Rights and is superfluous there. If the right of self-defense comes from any document, it would be one far, far older than the Constitution. But it's really a natural right, older than writing, older than language. Self-defense transcends our species and is a right of all living things. The Bill of Rights does not give us rights we already have and have had since long before we even evolved into humans.
And self-defense was completely skew and unrelated to the issues of DC v. Heller. That portion of DC v. Heller will be struck down, eventually, as soon as its challenged under a balanced court, because Scalia stepped way, way beyond the bounds of the mandate of the Supreme Court to interpret the Constitution, instead literally adding meaning that was never there before, sidestepping the legal methods of amending the Constitution aka 2/3rds majority of both houses of Congress or state legislatures.
Scalia vandalized, gutted and diluted the 2nd Amendment. Prior to 2008, the 2nd was noble and great. After DC v Heller, it is worthless. DC v. Heller is just another assault on the Constitution, just like the suspensions of habeas and the 5th Amendment.
Gun owners don't need the 2nd Amendment. Hunters never did. The 10th Amendment was always where (nearly all) gun owners' gun rights derived and still do, through legislation by the States, as the Framers intended, abiding by the first 3 words of the 2nd Amendment, put right up front to underscore their importance, and that every gun owner loves to ignore or lie about their clear and literal meaning. The 2nd limits itself and allows the 10th to legally cement what has become a dirty word: regulation. "Shall not be infringed" was placed last, making it less important than and subject to regulation. And commas are important, and it is easier to understand the 2nd removing the clauses between them:
A well-regulated Militia shall not be infringed.
What is worse is the Court ignoring the fact that at least one of its members is illegitimate and Merrick Garland should have been seated. Barrett is not the only untrustworthy Justice that claimed to support women's rights to choose in order to be confirmed and then apparently couldn't break her word fast enough (we had such high hopes, but it turns out she's as ineffective and as big a fruitcake as Thomas). Alito and Roberts are the surprise. Just what are they thinking? I'd like to know how they think history is going to remember them for making such an impotent and (expectedly) short lived ruling.
The Court also ignores the current state of the country for the last 20 years at least that conservatives are distinctly in the minority and likely will remain so indefinitely. They should not make decisions that are so painfully obviously unlikely to stand. Row v. Wade stood for very nearly half a century. Dobbs v. Jackson will be lucky to make it a decade and a half before it is either overturned or made irrelevant by Congress, either by law or a new Amendment.
Ignoring details, abortion is clearly wrong, but there are some things the government can not do, and saying anything about what a woman can or can't do with their body is one of them. The government is prohibited from doing so by the Constitution as it stood in 1789. Roe v. Wade should not have been necessary, but we have too many intellectually dishonest tyrants that must be put into submission through case law.
It is ironic that there are individuals refusing COVID vaccination, claiming the government has gone too far and has no right to mandate vaccination, crying their rights are being violated, yet by and large these are the same individuals that would have their government tell women they have no choice. It is ironic, but it is also absurd that a vaccination mandate is an intolerable infringement on privacy and the 4th Amendment while at the same time insisting on killing children for the sake of unborn fetuses.
Pro Life and Pro Gun movements go together, and they are each internally logically inconsistent, each reveal cognitive dissonance, and when both ideologies are held by the same individual that individual is necessarily a hypocrite, a twice cognitively dissonant hypocrite as well as a bully and a coward. The Pro Life control freak bullies say: we tell you what you can or can't do; The scared Pro Gun cowards say: don't tell us what we can or can't do. Ridiculously, their sworn political enemies are those that are tolerant of others, including them.
My point is that if your arguments and positions about matters or law always just so happen to align along partisan lines, why should anyone even pay any attention to the arguments long comments you write, when the conclusion is preordained anyway? Why should anyone even bother to answer to the Gish gallop of wrongheaded arguments, if no arguments would ever get to change your position?
Of course, you can prove me wrong, by pointing to any opinion of Court, written by Justice Scalia, that you think is correct, but most Democrat voters would prefer to have been decided differently. Can you?
You're asking for a contradiction. If he had written any decisions correctly, no one would disagree with him. Scalia consistently wrote horrible decisions, but one stands out that is correct, Crawford v. Washington, 2004.
Prove me wrong and relent on moving goal posts.
This is absurd, and only a complete partisan could write something like this. There is absolutely no point in discussing anything with you, because you literally are unable to concede that your side can ever be wrong. This attitude is extremely corrosive to peaceful coexistence: when more people understand that for you, the only “correct” court decisions are the ones that go according to your preferences, why would they want continue to participate in the rule of law? The whole point here is to solve disagreements by appeal to shared rules and procedures. If you are unable to concede that rules and procedures can ever result in an outcome that is against your preferences, you’re effectively telling people that you do not care one damn about these. Why should then anyone else? This will cause the judiciary to devolve into pure partisanship, with some latin words sprinkled on top.
Rules and procedures are merely for civility. Not sure where you get your pejoratives, but partisanship is a very good thing. Things only get better when individuals disagree. Without adversity nothing would ever change, nothing would ever improve, and there would be no such thing as technology. Sometimes disagreements can only be solved by democracy where the majority rules, not like the current State where the constantly shrinking conservative minority has somehow turned that on its head.
• Citizens United v. FEC • Speechnow.org v. FEC • McCutcheon v. FEC
Corporate personhood with rights afforded to actual citizens but separate from actual citizens laid the groundwork for a whole mosaic of wrongheaded schools of thought.
"Amoral, effectively immortal fictional entities can be created at will with the rights and privileges of ordinary citizens. What could go wrong?"
>"Amoral, effectively immortal fictional entities can be created at will with the rights and privileges of ordinary citizens. What could go wrong?"
You realize that the "immortal fictional entities" you speak of are just groups of "ordinary citizens", right? That's the logic behind the Citizens United ruling, ie. that ordinary citizens don't lose their free speech rights when they band together (either as a corporation or a labor union).
(I'm not sure that changes the overall argument, but it speaks to a common fear - influence coming from people who don't have the nation's best interests at heart)
"In 1969, Schenck was largely overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot)."
So we can tell other people to avoid the draft now, even in a dry bureaucratic sense. In real life of course the draft is slavery and immoral, as Ayn Rand and many others have pointed out.
I agree with this, but I also think this is such a “peace time” opinion.
If, for example, the nazis were at risk of invading the American homeland, would you want to wait until they are here and volunteers start coming in?
Again, I agree the draft is immoral, but so is war.
EDIT: for an even better example you should look up what the Japanese did to most civilians in WWII and really ask yourself if a draft to avoid that at home is bad.
I think the response to the 9/11 attacks shows that when something major happens, lots of people feel motivated to get up and do something. Volunteers flooded the different branches and even gov't services. My point being that I'm not sure a draft would be needed in your proposed situation.
It is, and the two examples below aren't comparable, you want a real-life recent example?
Look at Hong Kong and Taiwan: since at least the early 2000s after the hand over to the CCP in 97 many in HK knew the writing was on the wall of what Life would be like (look at films like 10 years for the most stark and sobering use of foreshadowing I have ever seen since maybe the works about East Germany). In the case of HK you have an affluent, highly educated population focused on what you think most modern developed nations seek: careers, status, salary, etc...
Their fight was a valiant one, starting in earnest in 2014 with the Umbrella Revolution, but the sad truth is HK was never in a capacity to thwart a real attack from the CCP in any real capacity since it's population didn't have any combat training or knowledge beyond the ad-hoc problems solving they were left with, coupled that with being unarmed and then seeing how Russia has invaded Ukraine and you can see why a similarly affluent and well educated country like Taiwan has had a massive up-tick in civilian combat and weapons training.
I'd hate to even contemplate what it would take to require the civilian mobilization in the US as even a thought exercise because f the obvious realities, but at that level I think we saw enough evidence from COVID how polarized people are in Society that I doubt how effective that even would be, and that is not even mentioning how unfit people are to be of any use in such situations given how prevalent obesity is in the Country.
> Again, I agree the draft is immoral, but so is war.
This is the conclusion any sane person comes to, and you'd think during/after COVID we would have come out with a better understanding of just fragile our World really is and how quickly it can turn to utter chaos because of unnecessary fragmentation that you'd think we would collectively regard War as the scourge of Mankind and yet some how it persists. It wasn't long into 2021 that Israel and Palestine were starting to kill each other again.
The REAL question is how to render War moot in modern Society, and my only conclusion is to elevate all of Humanity's standard of living such that they have a greater vested interest in stability and diplomacy as the sole form of conflict resolution rather than default to our basic instincts of tribalism that always leads to the perpetual senseless destruction of people and property at the behest of a political class and a few multi-national weapons dealers who profit from it.
If War is indeed immoral, than one has to also realize that War is the health of the State [0].
So, if the government decides to go to war, this opinion becomes irrelevant then?
And if the US can't convince people to enlist when they're under threat of invasion, I guess people just don't support the regime as much. I'm sure North Koreans are telling people "But what if the Americans invade? We must have the draft".
But I think it's fair to say that the US really did need to enter WWII. What if the US military needed more recruits, but no one wanted to enlist?
At least, I think that's what the argument is. I'm still not sure I buy it though, because, still, it's up to government leaders to convince people that there's actually a huge threat to the country, that war is necessary, and that people should put their lives on the line. If they can't do that, then maybe they don't deserve to be able to go to war. And if that does end up being disastrous for the country (or even the world) and its people, maybe that's just how things have to go down.
So they may have claimed. In reality it would have been pretty fine for the USA, Nazi Germany was fundamentally unstable and would be struggling with suppressing dissent in its conquered population for at least a century if it didn't collapse outright.
Sure it needed to enter the war - it wanted to put down Japan and take control of the pacific. Plus, the war allowed it to gain massive influence over Europe and better containment of the USSR.
But that doesn't mean the people of the world needed the US to enter the war. Just like they didn't need the other imperial states to engage in their world wars.
Yes, yes, a thousand times yes!
If you cannot get enough volunteers to fight in your war then tour population early doesn't care that much about winning it.
Even if there might be some hypothetical war where for some aliens-with-mind-control type reason the populace doesn't want to fight but losing the war would be even worse, having a draft as an allowed policy is still net bad because of all the times it will be used when there isnt some existential threat!
In almost every case the draft has been used, losing the war would be far better for the people than being drafted into the war.
But seriously - you don't get to tell me to die because you are afraid. If you want someone to be sacrificed to your fears, start with yourself - you want someone to die, it better be you.
Now, get out there and suffer. I wish all the "glory"[1] of war to you - go die because (and i can't stress this enough) Iran MIGHT BE BAD.
[1] glories like: having your limbs torn off, permanent disfigurement, intense pain for the rest of your life, TBI and all of the difficulties they cause, PTSD, and mystery diseases! These glories assume you survive of course... but listen if you do good they will give you a shiny bauble to pin on your uniform.