I won't address what you think your needs are, but I've told you more than once that I don't know what she said and don't care enough to look. I'm not sure how I can be clearer than that, so, yes, that was a mistake on your part.
No, it isn't. It's about whether the native-born children of undocumented visitors are. And whatever else one can say about that, an executive order has about the same legal effect as a tweet.
You still haven't told me what she said and what the ABA said and where they differ if they do. Off past form, I know better than to rely on whatever account you give and I'm not interested enough to take a homework assignment a review them for myself.
That said, it doesn't take an expert to "pick" between them if they actually disagree. But so what? I can "pick" the best soccer team without being an expert, and I might accidentally be right in the end, but nobody would take my "pick" seriously, and they'd be right not to.
Why don't you tell me what she said? You might even get it right, though your reference to not amending the Constitution by tweet doesn't inspire confidence.
Ms. Slogan, the Archivist, has the base in
knowledge and experience that her views on the subject, whatever they may be, are entitled to the respectful attention of anyone interested in the topic -- an expert, if the notion doesn't offend you.
If and when I have the time and motivation to do the kind of deep dive necessary to develop an opinion worth airing on the subject, I will certainly look into what she has to say. Until then, I will accept your implicit answer to my last question.
Why should I argue for or against the 28th Amendment? I'm not obliged to have a hot take on a difficult legal issue just because someone wants one. Are you really puzzled that someone prefers not to talk about something until he has something to say? I guess that's the difference between experts and barstool blowhards.
1. Ok then.
2. Is your point that that isn't the dynamic and, therefore, there is someone who "decides" who gets laughed at, or that that is the dynamic and that some folks aspire to the non-existent office of Master of the Revels (or Comedy Central)? Either way, people laugh at what they laugh at, which -- surprise-- changes over time, catches the Bobby Bittmans of the world unaware, and leaves them blaming the audience when the old jokes don't land.
1. Yes, because it's true.
2. Nobody "decides" who gets laughed at. They just laugh, and the laughter lands or it doesn't. If you "fear" being laughed at, that's on you.
1. Well, yes. If the experts say that X isn't an expert, X isn't. Of course experts are sometimes wrong and some random non-expert isn't, if only by accident. But random non-experts aren't the way to bet.
2. Most of us leave things we don't understand to experts and we're right to. And we don't even think it's an issue. Sometimes, usually for bad reasons, we think differently. When we do, we get laughed at. As we should. And that's usually it. That's how it works.
If that's what you wanted to know, you could have asked. So here's what I think on that. I don't know how much homework the ABA put into this, but they usually do a good job. Right or wrong, their view likely is much better founded than that of barstool blowhards. But it's one of those issues that actual experts disagree about, so barstool blowhards, or anyone else, can think what they want. Doesn't mean they're not barstool blowhards or that what they think is worth considering. At least if you're concerned with what's so.
Why would you think a silly thing like that? I haven't seen their position on the 28th Amendment and am not greatly interested in it. I haven't done the work necessary to develop one for myself and no client has a dog in that fight, so I don't have to. David TC does a good job laying out the complexities. It's one of those procedural issues about which it's far more important to have some definite answer than any particular answer, so if, ultimately, the ABA and I come to different answers, no big deal. It's not as though they endorsed Jim Crow laws.
That's an excellent question. The prevailing jargon is that there are three, or maybe three and a half "levels of scrutiny" when assessing the constitutionality of legislation, usually applied in first amendment or equal protection cases.
First, there is "strict scrutiny," which applies to explicitly content-based or viewpoint-based (there are subtle differences between the two that aren't worth getting into) restrictions on speech or explicitly race-based classifications. Strict scrutiny requires that a restriction advance a "compelling government interest" (which can't, in free speech cases, be based on the desire that people not come to accept the viewpoint being suppressed -- so preventing people from coming to believe in communism doesn't count) and that it be the "least restrictive means" of advancing that interest. (This is a big issue in the porn age verification case; is there another way to keep porn away from the kiddies without making it too hard for adults to get it?) If you apply strict scrutiny, you usually overturn things. The cliche is that "scrutiny is strict in theory but fatal in fact."
Second is "rational basis" scrutiny, which applies to almost every other legislative classification (and all legislation classifies). This is a very forgiving standard. All you need is a "legitimate state interest", and if a rational legislator could have thought the measure would advance that interest (even if no actual legislator actually relied on the rationale offered in court), then it stands. So a ban on truck loudspeakers survives a first amendment challenge because cutting down on noise is a legitimate interest and banning people from blaring out messages (of any type--if it banned only things like "Vote for Smith" you'd have a harder question) is a rational measure even if there are better ones available. This doesn't sound like much, and it isn't, but that's not a bug, it's a feature. If we applied anything stronger than rational basis scrutiny to most government action, nothing would ever get done and lawyers would be the richest people around until the economy crashed. When I said there were possibly three and a half levels of scrutiny, there is a rarely-applied test called "rational basis with teeth," where the court looks a little harder at the offered justification. Courts seem to apply it when there is some lurking issue of whether the legislation is an ordinary mistake that the government is entitled to make or whether it might be the product of some improper animus. (It was applied in a case involving locations of group homes because the court thought it wasn't merely zoning, but something to do with the mentally ill.)
That brings us to the third (or third and a half) level, "intermediate scrutiny." That requires an "important state interest" and the means chosen to advance it must be "substantially related," not merely rationally related, to advancing that interest. (It must also be, or at least seem, to be the actual purpose for the choice, not merely a purpose the legislature could rationally have been supposed to have.) It first showed up, if I recall correctly, in sex discrimination cases. Where it applies, you can't second-guess the government. You have to give it some slack. But you can hold its feet to the fire more than you do under strict scrutiny.
So what is "intermediate scrutiny"? Hard to say beyond "I know it when I see it." That's likely why Justice Stevens thought the whole "levels of scrutiny" framework was just a clumsy attempt to formalize what was in actual practice, pretty sensible, if poorly articulated. (Justice Marshall advocated a "sliding scale" of scrutiny, a clumsy compromise between the the unduly formal three-ish tier test and "I know it when I see it.")
I think this is a correct answer to your question. I don't claim that it is satisfying. Or that it should be.
One could, of course, find far-right weirdos who would inevitably say something that leftier sorts could nutpick and charge the mainstream Republican party with. If experience is any guide, it either wouldn't stick or it would stick and jazz up the base. And nobody would be calling for a Republican Sister Souljah moment.
On “Open Mic for the week of 1/20/2025”
With whom would I make such a trade, if I were so inclined?
On “President Biden Affirms the Passage of the ERA”
I won't address what you think your needs are, but I've told you more than once that I don't know what she said and don't care enough to look. I'm not sure how I can be clearer than that, so, yes, that was a mistake on your part.
On “Open Mic for the week of 1/20/2025”
No, it isn't. It's about whether the native-born children of undocumented visitors are. And whatever else one can say about that, an executive order has about the same legal effect as a tweet.
On “President Biden Affirms the Passage of the ERA”
You still haven't told me what she said and what the ABA said and where they differ if they do. Off past form, I know better than to rely on whatever account you give and I'm not interested enough to take a homework assignment a review them for myself.
That said, it doesn't take an expert to "pick" between them if they actually disagree. But so what? I can "pick" the best soccer team without being an expert, and I might accidentally be right in the end, but nobody would take my "pick" seriously, and they'd be right not to.
"
Why don't you tell me what she said? You might even get it right, though your reference to not amending the Constitution by tweet doesn't inspire confidence.
Ms. Slogan, the Archivist, has the base in
knowledge and experience that her views on the subject, whatever they may be, are entitled to the respectful attention of anyone interested in the topic -- an expert, if the notion doesn't offend you.
If and when I have the time and motivation to do the kind of deep dive necessary to develop an opinion worth airing on the subject, I will certainly look into what she has to say. Until then, I will accept your implicit answer to my last question.
"
It may not seem so to you. but people who don't know things often think they're easier than they are.
"
Why should I argue for or against the 28th Amendment? I'm not obliged to have a hot take on a difficult legal issue just because someone wants one. Are you really puzzled that someone prefers not to talk about something until he has something to say? I guess that's the difference between experts and barstool blowhards.
"
So we agree. Good to know.
"
1. Ok then.
2. Is your point that that isn't the dynamic and, therefore, there is someone who "decides" who gets laughed at, or that that is the dynamic and that some folks aspire to the non-existent office of Master of the Revels (or Comedy Central)? Either way, people laugh at what they laugh at, which -- surprise-- changes over time, catches the Bobby Bittmans of the world unaware, and leaves them blaming the audience when the old jokes don't land.
"
1. Yes, because it's true.
2. Nobody "decides" who gets laughed at. They just laugh, and the laughter lands or it doesn't. If you "fear" being laughed at, that's on you.
"
1. Well, yes. If the experts say that X isn't an expert, X isn't. Of course experts are sometimes wrong and some random non-expert isn't, if only by accident. But random non-experts aren't the way to bet.
2. Most of us leave things we don't understand to experts and we're right to. And we don't even think it's an issue. Sometimes, usually for bad reasons, we think differently. When we do, we get laughed at. As we should. And that's usually it. That's how it works.
"
1. That's what experts are for.
2. Who said people should not be able to hold whatever opinions they damn please, no matter how silly or ill-founded?
"
If that's what you wanted to know, you could have asked. So here's what I think on that. I don't know how much homework the ABA put into this, but they usually do a good job. Right or wrong, their view likely is much better founded than that of barstool blowhards. But it's one of those issues that actual experts disagree about, so barstool blowhards, or anyone else, can think what they want. Doesn't mean they're not barstool blowhards or that what they think is worth considering. At least if you're concerned with what's so.
"
Why would you think a silly thing like that? I haven't seen their position on the 28th Amendment and am not greatly interested in it. I haven't done the work necessary to develop one for myself and no client has a dog in that fight, so I don't have to. David TC does a good job laying out the complexities. It's one of those procedural issues about which it's far more important to have some definite answer than any particular answer, so if, ultimately, the ABA and I come to different answers, no big deal. It's not as though they endorsed Jim Crow laws.
"
Yes, I am. I belong to most of the relevant trade associations. Lots of useful services and CLE. Some good parties too.
"
Vance has always been an internet troll disguised as a responsible public official.
On “SCOTUS Upholds TikTok Ban: Read It For Yourself”
Now I'm hungry.
"
That's an excellent question. The prevailing jargon is that there are three, or maybe three and a half "levels of scrutiny" when assessing the constitutionality of legislation, usually applied in first amendment or equal protection cases.
First, there is "strict scrutiny," which applies to explicitly content-based or viewpoint-based (there are subtle differences between the two that aren't worth getting into) restrictions on speech or explicitly race-based classifications. Strict scrutiny requires that a restriction advance a "compelling government interest" (which can't, in free speech cases, be based on the desire that people not come to accept the viewpoint being suppressed -- so preventing people from coming to believe in communism doesn't count) and that it be the "least restrictive means" of advancing that interest. (This is a big issue in the porn age verification case; is there another way to keep porn away from the kiddies without making it too hard for adults to get it?) If you apply strict scrutiny, you usually overturn things. The cliche is that "scrutiny is strict in theory but fatal in fact."
Second is "rational basis" scrutiny, which applies to almost every other legislative classification (and all legislation classifies). This is a very forgiving standard. All you need is a "legitimate state interest", and if a rational legislator could have thought the measure would advance that interest (even if no actual legislator actually relied on the rationale offered in court), then it stands. So a ban on truck loudspeakers survives a first amendment challenge because cutting down on noise is a legitimate interest and banning people from blaring out messages (of any type--if it banned only things like "Vote for Smith" you'd have a harder question) is a rational measure even if there are better ones available. This doesn't sound like much, and it isn't, but that's not a bug, it's a feature. If we applied anything stronger than rational basis scrutiny to most government action, nothing would ever get done and lawyers would be the richest people around until the economy crashed. When I said there were possibly three and a half levels of scrutiny, there is a rarely-applied test called "rational basis with teeth," where the court looks a little harder at the offered justification. Courts seem to apply it when there is some lurking issue of whether the legislation is an ordinary mistake that the government is entitled to make or whether it might be the product of some improper animus. (It was applied in a case involving locations of group homes because the court thought it wasn't merely zoning, but something to do with the mentally ill.)
That brings us to the third (or third and a half) level, "intermediate scrutiny." That requires an "important state interest" and the means chosen to advance it must be "substantially related," not merely rationally related, to advancing that interest. (It must also be, or at least seem, to be the actual purpose for the choice, not merely a purpose the legislature could rationally have been supposed to have.) It first showed up, if I recall correctly, in sex discrimination cases. Where it applies, you can't second-guess the government. You have to give it some slack. But you can hold its feet to the fire more than you do under strict scrutiny.
So what is "intermediate scrutiny"? Hard to say beyond "I know it when I see it." That's likely why Justice Stevens thought the whole "levels of scrutiny" framework was just a clumsy attempt to formalize what was in actual practice, pretty sensible, if poorly articulated. (Justice Marshall advocated a "sliding scale" of scrutiny, a clumsy compromise between the the unduly formal three-ish tier test and "I know it when I see it.")
I think this is a correct answer to your question. I don't claim that it is satisfying. Or that it should be.
On “Trump’s Ace in the Hole”
It doesn't have to be "everyone," just a critical mass, to make calling out wackos a losing proposition.
"
When you get the job done, let us know.
"
Beats looking at the current freak show and what people will lap up.
"
That was a long time ago, in a political world far, far away. Are you so sure he wouldn't be perfectly acceptable now?
"
One could, of course, find far-right weirdos who would inevitably say something that leftier sorts could nutpick and charge the mainstream Republican party with. If experience is any guide, it either wouldn't stick or it would stick and jazz up the base. And nobody would be calling for a Republican Sister Souljah moment.
"
So, no.
"
You have information the rest of us don't on who did it and why?
Why do I bother asking?
*Comment archive for non-registered commenters assembled by email address as provided.