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Supreme Court Justice Stephen Breyer

U.S. Supreme Court Justice Stephen Breyer joins us. We’ll talk democracy, Citizens United, and life on the high court.

Justice Stephen Breyer, who has served on the Supreme Court since 1994. (AP)

Justice Stephen Breyer, who has served on the Supreme Court since 1994. (AP)

The first Monday in October, the Supreme Court goes back into session. There’s plenty swirling, on and off the docket. Some Tea Partiers want to rewrite the constitution with a balanced budget requirement.

Rick Perry says Social Security itself is unconstitutional. Just yesterday, the high court issued its third stay of execution to a man in Texas. In the thick of it all, Supreme Court Justice Stephen Breyer is thinking about what keeps the whole system working. What keeps confidence in the court. In our democracy.
This hour On Point: A conversation with Justice Stephen Breyer of the United States Supreme Court.

-Tom Ashbrook

Guests

Stephen Breyer, Supreme Court Justice and author of “Making Our Democracy Work: A Judge’s View.”

Highlights

Supreme Court Justice Stephen Breyer weighed on last year’s Citizens United decision on the eve of the election season, insisting that it is important for Americans to respect the legitimacy and good faith of the high court, even when they believe its decisions are wrong. “. I think the majority is unpopular and wrong,” Breyer said of the Citizens case. “But still, I think it is important for the country to support the institution.”

Justice Stephen Breyer at WBUR. (Jesse Costa/WBUR)

Justice Stephen Breyer at WBUR. (Jesse Costa/WBUR)

Breyer also warned that the country itself was at risk if the population grows too cynical of the role and functioning of the government. “The Constitution itself depends on people participating, in good faith, in governmental processes,” he said.

The Justice also said he though that the court’s decision in Bush v. Gore was “completely wrong,” but noted that it was admirable that the nation accepted the ruling without unrest in the streets.

Here are some exchanges from the show:

Ashbrook: Why did you write this [book]? What are you worried about?

Breyer: There’s a great deal of cynicism about our government and the younger the people, the more cynical they are. A little cynicism may be justified. But if there’s too much, the government won’t work. Because the Constitution itself depends on people participating, in good faith, in governmental processes: in elections, in their local communities, on their school boards, on library commissions. They have to have a public part. I think the best thing that people in public life, and a lots of us think this, can do, is explain to people the best we can, how our institutions work.

Ashbrook: There have been [court] decisions that many Americans have found very challenging. [In the year] 2000, of course, we saw the decision of the Bush-Gore elections in the Supreme Court. Highly controversial. Much more recently and under this president, we saw Citizens United, where the court said that corporations, unions, had the same rights as citizens to free speech.

Now, we’re headed into an election season for the president of the United States. This is a big deal. And this is going to be a time when that ruling is in place and the money is already rolling. And a lot of people are really upset about it. The people you are counting on to support the legitimacy, the clout, the power of the Supreme Court. What do you say to them when they look at Citizens United, which seems to so empower people who may be seen as citizens, but they are not human beings?

Breyer: I say three things: First, remember, we, in a sense, on the court patrol the boundaries. The Constitutions sets very broad boundaries. Life on the frontier, on those boundaries, is not always pleasant…Is abortion inside or outside the constitution? What about school prayer? What about Bush versus Gore? What about the cases you’ve mentioned? They are always pretty difficult cases and there something to be said on both sides.

I’d like people to remember that even when they disagree– and I disagreed in the cases you mentioned, I was in the dissent. I disagreed very strongly. But even in those cases where the Supreme Court has done something unpopular and where it might be wrong after all, we’re human. We are human beings. I mean people don’t always understand that, it’s certainly true. And if you’re a human being, you can make mistakes.

And therefore the job that I have right now is even tougher than you’ve suggested. Because I’m trying to say to the average man and woman in America, please read a little of this or learn a little of it, and you’ll see perhaps why this institution can help you. Even though you will disagree with it. And you may be right. And you may be wrong.

Ashbrook: But your book title is “Making Democracy Work,” and this is fundamental to democracy, this comes to even electing the president of the United States, this comes to electing everybody. And you’ve got a whole lot of people saying: Wait a minute. How does this work? There is great fear of money buying influence that subverts democracy, and Citizens United seems to empower that trend. So, I know it’s a tough decision, personal feelings come into play, maybe politics too, we’ll talk about that. But here are Americans that you say the court depends on their support to maintain its legitimacy and here’s a decision that to some makes it appear to make it more difficult to exercise honest democracy.

Breyer
: If I risk paraphrasing: There’s been a view of the First Amendment that protects the freedom of speech. And that view says don’t get into the business of trying to censor some people’s speech in order to give some others people more speech. It’s too risky. And in a campaign, money does – it’s not equal to a speech but it is necessary.

The opposite view says that it is possible in the constitution, to limit the amount of money some people give, so that other people will have an opportunity to speak themselves.

Those two views have always been at war. There is something to be said for both. I favor the second, and that is why I joined a long, long dissent. Trying to explain why they were right. I think the majority is unpopular and wrong. But still, I think it is important for the country to support the institution.

Photos

Justice Stephen Breyer in the On Point studio. (Jesse Costa/WBUR)

Justice Stephen Breyer in the On Point studio. (Jesse Costa/WBUR)

From Tom’s Reading List

The New York Times “People who hate Citizens United, last year’s blockbuster campaign finance decision by the Supreme Court, tend to blame it for allowing secret money from corporations and unions to flood the political landscape. But the critique is wrong on at least one point — the bit about secrecy. ”

Slate “Supreme Court justices live in a no-man’s-land between public and private, political and legal. So it’s always great fun when they attempt to explain why they don’t need to abide by the rules of any of those worlds.”

ABC News “That’s what Justice Stephen Breyer told me when I asked if he, like Chief Justice Roberts, is rethinking future attendance at the State of the Union in light of President Obama’s criticism in his 2010 address of one of the court’s rulings.”

Excerpt

Introduction

Day after day I see Americans—of every race, religion, nationality, and point of view—trying to resolve their differences in the courtroom. It has not always been so. In earlier times, both here and abroad, individuals and communities settled their differences not in courtrooms under law but on the streets with violence. We Americans treasure the customs and institutions that have helped us find the better way. And we not only hope but also believe that in the future we will continue to resolve disputes under law, just as surely as we will continue to hold elections for president and Congress. Our beliefs reflect the strength of our Constitution and the institutions it has created.

The Constitution’s form and language have helped it endure. The document is short—seven articles and twenty- seven amendments. It focuses primarily on our government’s structure. Its provisions form a simple coherent whole, permitting readers without technical knowledge to understand the document and the government it creates. And it traces the government’s authority directly to a single source of legitimizing power—“We the People.”

Words on paper, however, no matter how wise, are not sufficient to preserve a nation. Benjamin Franklin made this point when, in 1787, he told a Philadelphia questioner that the Constitutional Convention had created “a republic, Madam, if you can keep it.” The separate institutions that the Constitution fashioned—Congress, the executive, the judiciary—were intended to bring about a form of government that would guarantee that democracy and liberty are not empty promises. But what would enable the Constitution to work not only in theory but also in practice? How could the nation make sure that the Constitution’s limits are respected, that our citizens enjoy its important protections, that our legal system resolves disputes fairly and impartially, and that our courts dispense justice?

Alexander Hamilton, along with many of the other constitutional framers, thought that a Supreme Court would provide part of the
answer. The Court would interpret the law, thereby enforcing the Constitution’s limits. It would help ensure a democratic political system, and it would safeguard individual constitutional rights and liberties. Indeed, as the historian Gordon Wood has pointed out, “by protecting the rights of minorities of all sorts against popular majorities,” the Court would “become a major instrument for both curbing [American] democracy and maintaining it.”

In the framers’ eyes, then, the Court would help to maintain the workable democracy that the Constitution sought to create. I have previously written about the Court and democracy, explaining the ways in which that constitutional concept critically affects judicial interpretation of much of the Constitution’s language and also how the Constitution’s democratic objective assumes a public that actively participates in the nation’s political life. The present book focuses on the Supreme Court’s role in maintaining a workable constitutional system of government. It discusses how the public and the Court can help make the Constitution work well in practice. And it shows why the Constitution necessarily assumes that the typical American learns something of our nation’s history and understands how our government works.

In particular, this book considers two sets of questions. The first concerns the public’s willingness to accept the Court’s decisions as
legitimate. When the Court interprets the law, will the other branches of government follow those interpretations? Will the public do so? Will they implement even those Court decisions that they believe are wrong and that are highly unpopular? Many of us take for granted that the answer to these questions is yes, but this was not always the case. Part I uses examples from our nation’s history to show how, after fragile beginnings, the Court’s authority has grown. It describes how the Court was given the power to interpret the Constitution authoritatively, striking down congressional statutes that it finds in conflict with the Constitution. And it goes on to describe several instances where Supreme Court decisions were ignored or disobeyed, where the president’s or the public’s acceptance of Court decisions was seriously in doubt. These examples of the Court’s infirmity—perhaps startling today—demonstrate that public acceptance is not automatic and cannot be taken for granted. The Court itself must help maintain the public’s trust in the Court, the public’s confidence in the Constitution, and the public’s commitment to the rule of law.

Part II considers how the Court can carry out this constitutional responsibility. The key lies in the Court’s ability to apply the Constitution’s enduring values to changing circumstances. In carrying out this basic interpretive task, the Court must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law. It must understand that its actions have real-world consequences. And it must recognize and respect the roles of other governmental institutions. By taking account of its own experience and expertise as well as those of other institutions, the Court can help make the law work more effectively and thereby better achieve the Constitution’s basic objective of creating a workable democratic government. My argument in Part II takes the formof examples drawn fromhistory and from the present day, illustrating the Court’s relationships with Congress, the executive branch, the states, other courts, and earlier courts. Part of my aim is to show how the Court can build the necessary productive working relationships with other institutions—without abdicating its own role as constitutional guardian.

The Court’s role in protecting individual liberties presents special challenges to these relationships, some of which are discussed in Part III. I describe how this protection often involves a search for permanent values underlying particular constitutional phrases. I describe a method (proportionality) useful in applying those values to complex contemporary circumstances. And I discuss the Japanese internment during World War II as well as the recent Guantánamo cases to illustrate the difficulty of finding a proper balance between liberty and security when a president acts in time of war or special security need.

Throughout, I argue that the Court should interpret written words, whether in the Constitution or a statute, using traditional legal tools, such as text, history, tradition, precedent, and, particularly, purposes and related consequences, to help make the law effective. In this way, the Court can help maintain the public’s confidence in the legitimacy of its interpretive role.

The various approaches that I discuss in Parts II and III fit together. They constitute a set of pragmatic approaches to interpreting the law. They provide a general perspective of how a pragmatically oriented judge might go about deciding the kinds of cases that make up the work of the Supreme Court. I do not argue that judges should decide all legal cases pragmatically. But I also suggest that by understanding that its actions have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively. It can thereby better achieve the Constitution’s basic objective of creating a workable democratic government. In this way the Court can help maintain the public’s confidence in the legitimacy of its interpretive role. This point, which returns full circle to Part I, is critical. At the end of the day, the public’s confidence is what permits the Court to ensure a Constitution that is more than words on paper. It is what enables the Court to ensure that the Constitution functions democratically, that it protects individual liberty, and that it works in practice for the benefit of all Americans. This book explores ways in which I believe the Court can maintain that confidence and thereby carry out its responsibility to help ensure a Constitution that endures.

From the Hardcover edition.

Excerpted from Making Our Democracy Work by Stephen Breyer Copyright © 2010 by Stephen Breyer. Excerpted by permission of Vintage, a division of Random House, Inc. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.

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  • Terry Tree Tree

    I can’t call in.  Will the five Supreme Court ‘Justices’, that voted that corporations are citizens, please immediately provide VALID Birth Certificates for each and every one of these corporations, with the data provided on ALL Birth Certificates, including blood type, or Recind this farce, and RESIGN, as they are too SENILE, OR CORRUPT, to judge anything!!!

    Terry, in Brewstertown, Tenn.

    • Anonymous

      Corporate citizenship wasn’t brought to us by the Roberts’ court, just the obscene expansion of their free speech rights. 

  • Terry Tree Tree

    I cannot call this in.  How can a foreign corporation, founded outside the United States, owned by foreign citizens, that has NEVER filed an INS request for U.S. Citizenship, not fulfilled ALL  the requirements for Naturalization Citizenship, NOT waited the required time, and not been a model citizen during ALL that , be granted citizenship ahead of those that HAVE? 
        Are those five ‘Justices’, SENILE, or just CORRUPT?

  • Terry Tree Tree

    If corporations are citizens, so are junked cars, trees, insects and cespools!

  • Terry Tree Tree

    Who call it justice, when the decisions favor the rich, or those with the most political power, over half of the time?

    • Zing

      La Jolla is beautiful this time of year…you should go.

  • ulTRAX

    Please ask Justice Breyer how We The People are to believe in the moral legitimacy of our government when our founding principle is that government derives its JUST powers from the CONSENT of the governed, yet the Constitution allows for anti-democratic government where a candidate REJECTED by the  people can be imposed on the nation by an antidemocratic star chamber called the Electoral College… leading to rule by the MINORITY.  We know what conventional wisdom Justice Breyer might parrot… that we’re a dual suffrage system… and the states have a voice. But as we all know… and voting rights case like Sims v Reynolds points out, representatives should represent PEOPLE not interests. In the end, though we may pretend otherwise, there are no “states” voting… only the PEOPLE in those states… making the Constitution nothing but a immoral vote weighting/dilution scheme that is at odds with that founding principle.

    • http://gregorycamp.wordpress.com/ Greg Camp

      The Supreme Court ought to have followed the Constitution.  In a doubtful election, the U.S. House of Representatives makes the decision.  We weren’t in a state of emergency, and there was no need for a precipitous choice.

      • ulTRAX

        You position sounds reasonable but it’s just more Constitutional apologetics.

        First what if Bush won Florida with 50,000 votes instead of the alleged 500, but was still behind Gore by 500,000 vote nationally? In this case your position would be to let the antidemocratic EC prevail.

        Second, given anti-democratic Gerrymandering and the artificially narrow political spectrum in our two party system, does the House even represent the People as it pretends to?

        The ONLY solution to insure moral legitimacy in  electing a president is for a popular vote with some instant runoff provision so the winner will ALWAYS get more that 50% + 1 approval.
         

        • http://gregorycamp.wordpress.com/ Greg Camp

          The Electoral College exists for good reasons from our history and isn’t contrary to our republican form of government–note, miniscule “r” there.  It exists to assure a diversity of opinion in an election, rather than having everything determined in Virginia and New York, or in California, today.

          • Anonymous

            @gregcamp:disqus  The Electoral College was designed to give small STATES the power to get their concerns addressed by the president (and by the Senate). But in practice it gives something like 15% of the population a veto over important legislation. Talk about pork and ear marks that typically “greased” the skids for that important national legislation.

        • Anonymous

          @984d6c3560932f1bf695184396762ca4:disqus @gregcamp:disqus  The movement to have a state’s electoral votes go to the winner of the popular vote if enough states pass a law making that its state law, is about one or so states short of a group of states that command enough electoral votes to guarantee that the popular vote winner would always win the Electoral College vote. This approach will not require an amendment to the Constitution, as most other ways to achieve a popular vote selection of the president.

          But this means that a close election could require a recount in EVERY state, which would make the Florida recount seem like a busman’s holiday. That is also why Congress’s delay on ensuring accurate electronic voting machines (with voter-viewed and accepted paper backup) a big tragedy. Note which party is MOST responsible for that (hint: the name starts with “R”).

          • Mill

            Don_B1,

            Which means that in 2004 Presidential elections, MA electoral votes would have gone to Bush even though Kerry carried the state by a healthy majority. Brilliant!!

          • Anonymous

            @a0bd0e9fa9d17a9ca218cc12d7a7cf1b:disqus  And what difference would that have made? GWB won the election in both the Electoral College and total popular count. So a “bigger margin” in the EC would make a difference? I did point out the potential problems with this approach, mainly in the lack of transparency in the voting process.

      • Anonymous

        @gregcamp:disqus @984d6c3560932f1bf695184396762ca4:disqus  The 2000 election was unlikely to reach the House of Representatives; the Florida Legislature (Republican controlled,) was set to preclude its normal process with the appointment of its own slate of electors; a 30 November committee meeting recommended a special session for that purpose. Their appointees as electors would have guaranteed that George W. Bush would be the 43rd president of the United States. The ONLY way Albert Gore could have had a chance night have followed from an early decision to request a recount of ALL counties immediately as then the “time is running out” argument would have had less force; but even that would not have been dispositive.

        Whether Justice Scalia and/or Thomas or other Republican-appoointed justices decided that they did not want to deal with the legality of that action or they just wanted to get the issue resolved with the result they wanted is currently known only to them.

  • Winston Smith

    My comment has nothing to do about the subject of this hour’s discussion.  But I am wondering, in light of report on government misspending on the news last night:  Were the $16 muffins, $8.40 cups of coffee, and $32 candy bars that were served at various government functions last year part of the stimulus package?  And liberals still wonder why conservatives are against more government spending?  Duh.  P.s.  I’m sure that all of these refreshments must have been very tasty! 

    • Cory

      Private enterprises are full of corruption and innefficiencies as well.  The difference is you can change the government with your vote.  Heck, in Wisconsin we elected a governor who in one fell swoop took away collective bargaining rights from public employees and almost 20% od their compensation to boot!  So quit yer bitchin’ and vote!  The government IS us, or at least that is what the constitution says.  With a private business your vote is your dollar, which is eminently less powerful, and certainly not a right. 

      • Winston Smith

        Such an angry young man.  I guess I must have hit a nerve BY bringing up the sore subject of wasteful government spending, which the liberals can always find a way to rationalize.  And this, despite the “fact” that Bill (“I didn’t have sex with that woman, Ms. Lewinsky”) Clinton and Al (“pay no attention to my 20,000 square foot energy-devouring houses…just reduce YOUR carbon footprint”) Gore “fixed” the government…”Mission Accomplished”.  er rather, Nothing Accomplished!

        • Cory

          I’m not angry, and you didn’t address my challenge to your silly, anti-governmental stance at all.  Clinton and Gore are private citizens who don’t even hold office.  You can only vote against them with your dollars.  Don’t buy their books, see their movies, or attend their paid speeches.  Not very empowering, ey?

          • Winston Smith

            The Republicans and their support of the military/oil industry/etc. are just as bad as the Democrats in terms of supporting their pet wasteful spending priorities.  So it doesn’t matter who you vote for…as long as their is government spending, there will be waste/fraud/abuse on a MASSIVE scale…the only solution is to starve the beast after carefully defining what government’s role should be based on doing only what government can do (excluding wasting money better than any other entity, of course).  And the more limited the role, and thus opportunities for more mis-spending, the better

          • Anonymous

            @92335a75f7072bb4d4f8aadb348ff179:disqus @e533c71f78b04b5363a41d402415bf87:disqus  I would dispute your use of “MASSIVE” in your comment. As a percentage of GDP it is probably a lot LESS than in a typical large business. More important, I suspect that a lot of what you would consider waste (from your comment: “their pet wasteful spending priorities”) and what more fair-minded objective observers would.
            I do not benefit DIRECTLY from spending on the poor or even some of the middle class benefits; but I do benefit greatly from the better society when more of the people have common experiences and have less grievances with the various injustices, non-intended and intended, that accompany poverty, most of which is undeserved and a result of fate.

            How often have you blessed the fact that you had the parents, guardians, or other people of good influence in your life? The poor have a lot fewer of this type of people and a lot more people who are bad influences. And until you have matured it is not easy to learn (without good influences) how to pick good friends. And sometimes, even when you learn that reasonably early, it is already too late.

    • Yar

      Winston, I would like to hear your opinion on the trail of tears case presented in the excerpt.  Do you think justice was served? If so why, and if not, what should have been done?  Should the land be returned to the original owners today?  What do you believe about the rule of law?

  • http://banicki.biz steve banicki

    Campaign contributions by these oligopolies and large multinational companies are preventing congress and the president from investigating the destructiveness of these industries and companies. In our current political climate the only way to correct the problem is to amend the constitution to not allow contributions from unions and corporations. Given the amount of political bribes handed out by these entities, change will not happen any other way. More:  http://bit.ly/qMFozb

  • Gregg

    I love the debates with Scalia.

  • nj

    Question for the Justice: In his estimation, what is the worst decision the Court has ever made and why?

  • john in danvers

    It seems The Constitution is no longer what it says but what we do.  

    There’s a class of actors that are by definition constitutional in what they do.  The rest of us?  Too bad for you, bud.  

  • Cory

    Could the justice please address the absurd notion that judicial nominees and candidates not have a political affiliation?  We all know who is who, and who has an “R” or a “D” by their name.  If justices are apolitical, why do we say that conservatives hold a majority on the high court?  All this charade accomplishes is to allow candidates/nominees to avoid answering questions while seeking their judgeships.

  • Cory

    There really is nothing to discuss with the citizens united decision.  Any thinking creature can see what is wrong with this decision and how it is destructive to democracy.

    I’m quite sure that proponents of the decision can provide oodles of legalistic justifications…  Any system that can pass legislation that results in its own suicide is a system not meant to thrive or survive.

    • Zing

      Like abortion, it’s the law…get over it

  • Cory

    Little Scotty Brown, you are SOOOO done!!!

  • Charles A. Bowsher

      The Citizens United Debacle is the most important decision the Supreme Court has made in my lifetime (55 years). Question is, how do we, as lowly citizens get them to re-visit it and overturn it? There can be no question or argument made that will convince me it was properly decided. I challenge Justice Breyer to answer for his colleagues refusal to recognize the simple fact that corporations are already, and always have been represented in our political process and system. “They” are represented by their owners, their shareholders and their customers. That ought to be enough representation for anyone!

    Besides, how will “they” ever be able to fit in a non-electronic voting booth?

  • Yar

    What is justice Breyer’s view on a balanced budget amendment?  What would it do to the constitution and to the Court?  I fear such an amendment would undermine the separation of powers and weaken our constitution.

    Pulaski County Kentucky my hometown, just borrowed 233,000 dollars to pay legal fees over placing the Ten Commandments on our Court House wall.  Many residents are upset over losing this case.  The majority still don’t understand equal protection under the law. How does injecting “We are a christian nation” into the national politic affect the credibility of constitutional interpretation?  

    • Anonymous

      Yar, I’m glad to see you don’t capitalize the word “christian.”  Christian with the cap is troubling, too close to Capitalism for my taste.  In a country with a system such as ours, the two should be kept at the same level as the average citizen — no capital letters in sight!

      • http://gregorycamp.wordpress.com/ Greg Camp

        Capitalism isn’t capitalized, while Christianity, as a proper noun, is.  The rules of English aren’t a matter of taste.

        • Ellen Dibble

          Greg, I think bible has gone from Bible to bible.  A lot of our capitalization still reflects 18th century clinging to Germanic roots with capitals on nouns of all sorts and their related adjectives.  Try to untrain someone from THAT.  English changes.  Oh, I transcribe English as it is spoken for the courts, which is a different approach from that of the English instructor.  If EVERYONE says it “wrong,” it begins to be right.  Yo-man, you know what I mean?  I mean? God-be-with-you; good-bye; be-with-you; bye. Things change.

          • http://gregorycamp.wordpress.com/ Greg Camp

            Bible is capitalized, as it’s the title of a book.  Do you start titles
            of other books in miniscule letters?  When the rules are tossed out at
            will, language no longer exists.

          • Anonymous

            Exactly, Ellen.  Certainly famous writers have also changed the language over years.  At this point in our history, some Republicans have been inordinately successful in “framing” issues through their use of language.  One silly example or their language choices is their use of “Democrat” to replace “Democratic,” a word they are said to fear.  But they only come across as people who know a lot of words but little grammar!

            Oh, and then there’s the history of the word “normalcy”!

             

          • Brett

            Shouldn’t that be, “yo, man, know what I mean”? I could see someone with the maiden name of Yo marrying a person with the last name of Man using both with a hyphenation, but that would be “Yo-Man” and something different altogether; otherwise, a comma would have worked better than a hyphen (or presumably what you considered a dash)…Oh, and, hey, as far as street cred. goes, don’t be perpetratin’! Something seems to get lost when that particular vernacular gets written down! (joking, joking…) With all this talk about language evolution vs. pedantic monitoring, I couldn’t resist. Sorry! I must check my pocket Strunk and White’s (a kind of bible on grammar and usage) on this…no clear guidance on these matters in The Bible, though…   

          • Brett

            Oops! Correction: the Bible (“the” is not capitalized)

        • Anonymous

          You missed my point, Greg. 

  • Anonymous

    The Citizens United ruling is one of the worst in the courts modern history. Shame on them for leading this nation to ruin by giving in the greed and corporation of the corporate sector.

  • Anonymous

    I am a Corporation. Hath
    not a Corporation eyes? hath not a corporation hands, organs,
    dimensions, senses, affections, passions? fed with
    the same food, hurt with the same weapons, subject
    to the same diseases, healed by the same means,
    warmed and cooled by the same winter and summer, as
    a person is? If you prick us, do we not bleed?
    if you tickle us, do we not laugh? if you poison
    us, do we not die? 
    Uh, wait.
    No, I guess we don’t.

    • Ellen Dibble

      And does it have a birth certificate, a Social Security number, and parents to look after?  Most especially, does it have a vote?
      “A” vote…

      • LPGrasso

        Careful Ellen, irony and sarcasm are dead.  Giving corporations a vote is next on the agenda advancing the cause of this “suffering” minority.

      • steve

        It has far more than just one vote

      • Anonymous

        @ellendibble:disqus  A corporation does have an incorporation number and a tax number, both of which are equivalent to the first two items, respectively. Many corporations are spin-offs from other corporations and others are private companies with owners who went public. If there are corporations that were formed without a structure of some sort already in place, they are few and far between. But they don’t need a vote.

  • Anonymous

    Judge Richard Posner of the 7th circuit said recently (in an NYRB interview):

    If you compare today’s constitutional law with the Constitution of 1787 everything has changed, but it has taken 224 years, so the change has not been abrupt. The Senate started off with twenty-six members who were indirectly elected and were expected to be members of the political and social elite of the country. It was a genuine deliberative body. So you could say that the Supreme Court today is taking the place of what the framers expected the Senate to be.

  • Ellen Dibble

    I woke in the middle of the night with a terrible flash cold (it’s gone now) and a conviction that we are in the middle of a massive shift in which the humans of the planet either turn toward coordination and unforeseeable progress, or we turn toward capitalist competition, which in a deteriorating environment will lead to challenges no justice system, global or national, can adequately meet.
        How hard it is to look at the moment from a putative future, but if we are at an inflection point, I’d like to know (a) what a Supreme Court justice who knows some of the issues from the legal bones has to say in this regard and (b) what our president would like to share with the United Nations of our hopes and vision and possibilities.
        Good morning.  Both are being presented at 10:00 AM.  Fortunately I have two ears, one on either side of my head.

  • http://www.facebook.com/people/Joseph-Rice/100000693874282 Joseph Rice

    On the positive side, with the Citizens United case, Kelo v. City of New London (eminent domain for private developers, 2005) is no longer the worst decision in recent Supreme Court history.

    Congratulations all!

  • Charles A. Bowsher

    Justice Breyer,

    Please ask your colleagues to recognize the simple fact that corporations are already, and always have been represented in our political process and system. “They” are represented by their owners, their shareholders and their customers. That ought to be enough representation for anyone!

    Besides, how will “they” ever be able to fit in a non-electronic voting booth?

    • steve

      How will “they ever be able to fit in an electric chair?

  • Charlie mc

    I wish to report a crime. The crime was that of the theft of billions of dollars of investments of the working middle and lower income class through deceptive corporate and banking actions which fanned the expansion of the bubble which has ultimately burst and brought the entire world to the abyss of a devastating depression.  Economic advisors who ridiculed the efforts of early whistle-blowers Brooksley Born, John Bogle and others motivated by virtues more noble than the vice of greed and the self interest which profited corporate officers, entrepreneurs, investors, bankers, financiers and money managers, those advisors have continued to advise President Obama in a tailspin which is ongoing throughout the whole world.
           My question, Justice Breyer, is whether or not there will ever be justice given to those thieves?   

  • Anonymous

    I was alarmed by Justice Breyer’s comments that he thought that a Koran burning might not be protected under the first amendment and he compared it to yelling fire in a crowded theater as it could cause riots “”Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”  However, the first amendment should protect even the most offensive speech.  Unless the speaker is arousing a crowd to commit immediate violence, speech should not be censored.  The reaction of the offended person shouldn’t be the deciding factor.  Should the American flag receive less protection than the Koran because the people offended by its burning behave in a more civilized manner to express their outrage? 

    • Anonymous

      What a moronic comment.

  • Tom

    If corporations are people, where are their birth certificates and social security numbers. If they are people, then they are illegal aliens with no birth certificate or social security number, etc., so they should be deported out of the country. 

  • Tom

    If corporations are people, where are their birth certificates and social security numbers. If they are people, then they are illegal aliens with no birth certificate or social security number, etc., so they should be deported out of the country.
    Tom Barlow, Burlington, Vermont

    • nj

      “I refuse to believe that corporations are people until Texas executes one.”

      —alleged bumper sticker making rounds on the Interwebs 

  • Sara

    I spent this morning contacting my children’s school and the ACLU about a teacher announcing,on the morning broadcast to the student body,  a See You at the Pole event and encouraging students to attend .

    A high school personal finance class also recently used a worksheet requiring students to rate how highly they value “having a strong religious faith” and to place a monetary value on “salvation.”

    Why is this still happening? Hasn’t the Court been very clear about public schools not endorsing religion?

    • http://gregorycamp.wordpress.com/ Greg Camp

      See You at the Pole is allowed because clubs of all kinds are allowed.  Now, if the school bans Pagans at the Green, or the like, then we have a problem.  The survey questions sound like neutral questions–questions that are not advocating anything.  That’s allowed as well.

  • http://gregorycamp.wordpress.com/ Greg Camp

    Bible is capitalized, as it’s the title of a book.  Do you start titles of other books in miniscule letters?  When the rules are tossed out at will, language no longer exists.

    • Ellen Dibble

      Bible means library, something like that, bibliotheque, from Latin, and stood for a collection of manuscripts.  This was before “publishing,” so a manuscript might have a title, but it wasn’t necessarily capitalized.  And I think you’ve got Holy Bible, meaning the bible that got published with that name.  Then you have the Revised Standard Version, which gets capitalized to clarify.  That sort of thing.  My style manuals started to say no cap on biblical or bible, depending on which one you consulted — about 20 years ago.

    • Anonymous

      Just for you, Greg, I hauled down the A-B volume of the OED, heavy and covered with Texas dust!!  It confirms that bible means book.  A bible is a book, a scripture.  If you’re a christian (I’m not) you are a Christian and bible means The Bible to you, the Scriptures. But there are no rules here.  As Ellen Dibble pointed out, language changes all the time.  It may not seem to have changed that much in your time on earth (Earth?).  If not, haul down a volume of the OED, pick a word, and see how much spellings and meanings have changed for that word over time. They are simply expressions of current meanings at any given point in time. Annoying?  Offensive? Yes — and to me as much as to you, probably.  It depends on what we believe should be unchanging. As you surely know, christianity itself has changed multiple times in multiple ways from its earliest days.

      ee cummings, a wonderful poet, was a lower-case author, and is particularly familiar to Boston listeners:

      my father moved through dooms of love
      through sames of am through haves of give,
      singing each morning out of each night
      my father moved through depths of height

      this motionless forgetful where
      turned at his glance to shining here;
      that if (so timid air is firm)
      under his eyes would stir and squirm …

      (Disqus doesn’t know what to do with short lines…)

      • http://gregorycamp.wordpress.com/ Greg Camp

        1.  The O.E.D. describes how the language is used, not how it ought to be used.  We English teachers teach the latter.

        2.  I am not a Christian.

      • http://gregorycamp.wordpress.com/ Greg Camp

        Cummings didn’t prefer the lower case letters for his name.  He generally capitalized his name in the conventional style.

        • Anonymous

          Both.  He used the Greek e in his lower case signature followed by a squiggle for cummings or Cummings.

          Greg, you and I are both pedants at heart when it comes to language.  But I’m in the process of switching, the result of having been a long-time blogger who finds the colloquial much clearer and more expressive in what is really an ongoing, online conversation. Clarity — from the point of view of the person you’re communicating with — is more important than anything.

  • http://gregorycamp.wordpress.com/ Greg Camp

    I am curious to hear why Justice Breyer believes that “people” in the First Amendment refers to individuals, while “people” in the Second Amendment is used in a collective sense.

  • Charles A. Bowsher

     Question is, how do we, as lowly citizens get them to re-visit it and overturn the Citizens United Mess?

    • Cory

      Elect democratic presidents and hope conservative justices retire or die.  That is the lesson we learn from electing W.  He got to pick 2.

      • http://gregorycamp.wordpress.com/ Greg Camp

        Sometimes, the conservative justices get decisions right, and they often tend to drift toward the left as they age.

        • Anonymous

          @gregcamp:disqus  That was one of the main objectives of the Federalist Society: groom and get selected as judges persons who would NOT grow in office.

        • Cory

          I wonder why the shift is so often to the left with justices?

          • Zing

            Easy. They get soft headed.

          • nj

            ^ Maintains perfect record; to date, nothing worth reading. Can i sue for lost time reading this drivel?

    • Anonymous

      @438604461a7e0b28d311a5b22839dbeb:disqus @e533c71f78b04b5363a41d402415bf87:disqus  The path the Republicans have put us on leads those wishing to get off it to a choice between one of two paths:

      1) Enable public financing legislatively: my feeling is the best approach is one proposed by Professor Bruce Ackerman of Yale Law School, where each voter in the previous election would receive a bank account (nominally $50) which could ONLY be used to electronically contribute to a candidate/candidates in the current election. The nominal amount would be determined so that the total across all voters would say double the amount spent by individuals (and now corporations) in the previous election. At least eventually it would sink in to the big contributors that they could not effectively outspend the publicly financed contributors.

      2) Work to amend the Constitution to strip corporations (and big donations) from the electoral process. This would almost certainly be harder as the corporations would try/succeed in keeping the Congress from passing the first step in this process, which has a two-thirds majority requirement for each house, higher than the filibuster closing super-majority in the Senate for “normal” legislation.

      Either way, it will be difficult, but nothing gets done without trying; the citizens of this country are discouraged with Congress; if they could be educated that this is a necessary first step in getting the country back on track, they might vote in legislators that would take one of these corrective approaches. It might be possible to implement the first in a single state as a trial to show it works. But it would have to be a rich state (New York?) because money from out-of-state opposition would flood in, unless somehow that could be prohibited (Supreme Court?).

      I would like to think someone could propose a better way, but …

  • http://twitter.com/PersnicketyRph Jonathan Lloyd

    A corporation is not a person. That is what is wrong, fundamentally, in the Citizens United case.

    • Cory

      Although I agree with your sentiment, what does the legalese say?

      • Alitza Blough

        The constitution doesn’t talk about a government and corporations, it’s about Government and its People. Corporations are not people, for one, they can exist forever; a big enough problem for the copyright law.

    • Zing

      Sorry you are in the minority, Justice Lloyd.

  • http://gregorycamp.wordpress.com/ Greg Camp

    As I asked below, why didn’t the Supreme Court send the 2000 election to the House of Representatives, as specified by the Constitution?

    • Anonymous

      @gregcamp:disqus  Because they found a way to prevent the Florida Supreme Court from enforcing the proper counting of the cast ballots. This brought the election process to a quicker conclusion, which the Republican appointed Justices probably thought beneficial.

  • Gilbertysullivan

    Justice Breyer,

    Who is and who is not subject to the U.S. Constitution. Citizens only?
    What happens to those in U.S. detention facilities that, until now, have
    not enjoyed “habeas corpus” rights?

  • BHA in Vermont

    Thank you Justice Breyer for dissenting on the judgement that corporations are equivalent to voters with respect to campaign donation.

    Freedom of speech doesn’t mean buying elections.

    • Alitza Blough

      Corporations are not equivalent to voters in any respect…

  • Mia

    An amendment to the constitution for a balanced budget would be a silly idea as surely deficit spending is sometimes necessary.

    As well that decision Citizen’s vs United made free speech a commodity.  Some people now have more free speech than others because they have more money which seems to me undermines the idea of equality. 

  • Nancy Zelman

    Why did the USSC intervene to stay the Texas executions of Duane Buck and Cleve Foster but not in the case of Troy Davis?

  • http://gregorycamp.wordpress.com/ Greg Camp

    Changes to language happen for three reasons:  need, creativity, and laziness.  There’s no excuse for laziness.  Creativity really only belongs to creators who are acting out of genius, not out of boredom.

    • Ellen Dibble

      Greg, there is a genius that bubbles up from dunderheads, depending on the light in which you view them.  It ferments to them and from them.  The Village Idiots include the philosopher kings in my town.

    • Anonymous

      I think all creativity is the result of bored geniuses.

    • Cory

      Are not all contractions the result of laziness.  Is it not so?

  • john in danvers

    Re Citizens United:

    If we make our elections expensive, only the rich will be able to buy them.
    ;)

    We should make them cheap enough that EVERYONE can buy one, and therefore no one will be able to.  

    • Caleb

      Ya why do they fund elections the way they do, as opposed to requiring everyone to use the same amount of money?  This is by no means my area of expertise, (that is if I even have one.)  Whats the logic behind this policy??

    • Guest-22

      Oh, let’s just outsource them to China. Or India. Standing by to take your vote. Phone now. Press “1″ for “shoot me now.” Press “2″ for “take my money and run.” This will cut out a lot of TV commercials so we can watch more ads for erectile dysfunction pills and cell phones. Whoopee.

  • Kate

    It appears that Justices Scalia and Thomas attend retreats presented by the Koch Brothers. If this court is for the “people” how do I gain access to these justices?
    It appears that this court has no connection to the “little” people…

    • Anonymous

      Justice Thomas’s wife now lobbyist

      Thomas’s role as a de facto tea party lobbyist and — until recently — as head of a tea party group that worked to defeat Democrats last November “show a new level of arrogance of just not caring that the court is being politicized and how that undermines the historic image of the Supreme Court as being above the political fray,” said Arn Pearson, a lawyer for Common Cause, the left-leaning government watchdog group.

      “It raises additional questions about whether Justice Thomas can be unbiased and appear to be unbiased in cases dealing with the repeal of the health care reform law or corporate political spending when his wife is working to elect members of the tea party and also advocating for their policies.”

      But the Thomases came under particular scrutiny after POLITICO revealed that, while the Supreme Court was deliberating over the Citizens United case, Liberty Central had received a $550,000 anonymous contribution.

      Common Cause, in a letter to the Justice Department, suggested that Thomas should haverecused himself from the case and charged that “the complete lack of transparency of Liberty Central’s finances makes it difficult to assess the full scope of the ethics issues raised by Ms. Thomas’s role in founding and leading the group.”In addition, in a letter to the Judicial Conference, Common Cause pointed out that Justice Thomas had failed to report on his disclosure filings his wife’s income over the past decade, prompting the judge to amend 13 years of reports to indicate sources — though not amounts — of his wife’s income.

      http://dyn.politico.com/printstory.cfm?uuid=EDCEB005-CDAC-A5BB-73007D76BE8BEEFE

  • Anonymous

    Earl Warren was a good politician.  He knew that a decision of a united Court in Brown would be more effective in shaping public opinion and worked to get nine votes.  Perhaps a problem with the current court is that it lacks politicians. 

  • http://gregorycamp.wordpress.com/ Greg Camp

    I don’t mean “genius” in psychological terms, but in it’s original meaning–filled by the god.

  • Alitza Blough

    I wish I could listen in… I’m at work at this hour. I’ll listen later. My question is, what will it take to remove Justice Clarence Thomas. He’s a flagrant corporate shill… not a Judge or Justice at all. He’s a disgrace to the whole court.

  • Ed Siefker

    When the Supreme Court makes an incorrect decision, it damages not just the legitimacy of the court, but the legitimacy of our entire government.  The Constitution is the only thing that makes our system legitimate, and when the court rules in a way that is inconsistent with it, we lose that legitimacy.

    After decades of blatanly incorrect, overreaching rulings, going at least as far back to Wickard v. Filburn (1941), there is nothing left of our Constitution.  Every limitation inherent in that document has been breached. 

    As a result, our government is wholly illegitimate.  Politicians, whether Democrat or Republican rule not because they adhere to a social contract.  They rule only because they have the guns.  Obama, Bush, Boener, even Breyer here are nothing but thugs. 

    • Anonymous

      @7f57f3a71069fee06d29e22254b84707:disqus  Most of the people who are of your opinion are radical-right members of the Republican Party or its fringe groups such as the John Birch Society. They seem to be dominionists (wanting ALL elected office holders to be deeply religious in the evangelical life), libertarians (no regulation of anything they want to do and no responsibility for being their brother’s keeper) and are willing to impose a kind of fascism to force their will on all other citizens.

      In “normal” times, a pdf from the Center for American Progress would justly be regarded as outrageous hyperbole; but all one has to do is look at the way Republicans are marching to the beat of ALEC (American Legislative Exchange Council), a Republican-funded (think Koch brothers, Mellon-Scaife, etc.) group that concocts “model legislation” that Republican legislatures can implement to impede Democratic Party from winning elections and reward Republican business (oil, big pharma, health insurance, investment banks).

      http://www.americanprogress.org/issues/2011/09/pdf/tea_party_constitution.pdf

      The states where this is most visible are Wisconsin, Ohio, Florida, Michigan and Maine. Note how Florida Governor Rick Scott has persisted in pushing destructive (to the Florida economy) bills and voter registration, etc. bills which he hopes will entrench Republican power by preventing Democrats from voting, even as his popularity has dropped to 29%.

      • Baba Louie

        Yeah. and don’t forget the rigged voting machines, bought from their buddies, which conveniently miscounted lots and lots of Ohio votes. Etc., etc., etc.

  • http://gregorycamp.wordpress.com/ Greg Camp

    On that, I agree.  A party has the right to choose its own name and adjectival reference.

  • Sam, Buffalo, NY

    Hello,

    I do not believe that corporations should be granted the same rights as people.
    Can you please ask your honorable guest about that decision.

    Thank you

    • Zing

      Sam, your beliefs are irrelevant until you become a Supreme Court Justice.  All we ask is that you comply with the law.

      • Sam, Buffalo, NY

        Zing,

        Until you become a guest speaker on onpoint, and commenters ask for your very relevant opinion, your comments are just that – …

        I phrased my question/comment in a nice way, unlike you, who know have no manners and respect.

        Thank you

  • Tanya

    This is a bit patronizing. We the People have to “understand” the loftiness of the great robes of the Supreme Court while they make rulings based on who gives to their library? Listen, Corporations will put in the next congress and they will change the constitution. It’ll read the masses shall work for the company, be taxed by the government who will give the money back to the company. The end. Put a fork in us. We’re cooked. And it has nothing to do with little ol’ us not understanding the robes. And mistakes is not the same as immoral. This court is immoral. 

    • Cory

      I like your straightforwardness.

  • Charles A. Bowsher

    You applaud our reaction to the Bush v. Gore? I deplore it! You say at least we weren’t clashing in the streets…! What price the crushed spirit? What price the lost dreams? What price our dead soldiers in Iraq, the dead Iraqi Citizens? You are right, no one died here as a result of Bush v. Gore, but they certainly died elsewhere.

    You should have resigned in protest! 

    • Anonymous

      @438604461a7e0b28d311a5b22839dbeb:disqus  And let his replacement be picked by the presidential “winner,” George W. Bush? He needs to be a strong outspoken voice for what he believes should be the law of the land, and strong dissents often win out in the end. But just imagine the harm that could be done by THREE GWB appointees from the Federalist Society?

  • thegreengrass

    If Citizens United is really going to be the law of the land for a century, then democracy has truly failed. You only have to look at the histories of monarchies in Europe to understand how wealth translated into power, which in turn translated into the silencing of the concerns of the common citizen. If this is how it’s going to be, we might as well go back to serfdom.

    • Ed Siefker

       Our democracy failed a long time ago.  For the most part we are already serfs.  Notice how Obama is still going after legal medical marijuana users in California, and prosecuting more whistle blowers than any other administration in history. 

      But for the bankers who stole trillions of our dollars and crashed the entire economy?  Not one of them is going to jail.  This was the greatest hope we had in a generation.  All it’s really proven is how broken our democracy is.  We live in a banana republic (but the bananas are banks).

      • thegreengrass

        I agree, and honestly I don’t know how people in my generation (mid-20s) are ever going to believe in a political campaign again, given how this is going. And it’s not even the partisanship, it’s the small things that set the tone of it all, like what you said, going after whistle blowers (who he said he would give greater protection) while telling the justice department not to go after bankers. Apparently there was more punishment in the Savings & Loan scandal decades ago, and that didn’t even bring down the world economy.

      • Alitza Blough

        I don’t know if our democracy failed a long time ago or more recently, but I do remember that it was a wonderous thing… and believe it to be worth fighting for. The only good thing about when things get this bad is that a fight/struggle is necessary and the general direction is also pretty easy to choose. I understand “thegreengrass” for my generation we saw our most charismatic leaders assassinated… maybe you can understand why so many of us gave up. We depend on your generation… we need your help and you will need ours. Yeah, this guy is far from perfect and the truth may be much worse than that… we are are all looking at the fight of/for our lives… time to start kicking and screaming; we lay down and I’m here to say it didn’t work… let’s not go into that dark night quietly.

  • Charles A. Bowsher

    We are impotent thanks to the Citizens United Mess!

    • http://gregorycamp.wordpress.com/ Greg Camp

      Tell me how money changes the way that you vote.  I refuse to be influenced by ads.  It is true that getting on the ballot in the first place requires money, but not a lot.  In today’s Internet Age, we can start or learn about a campaign with only limited funds.  It’s the job of voters to educate themselves, not take what they’re told to believe.

      • Anonymous

         “It’s the job of voters to educate themselves, not take what they’re told to believe”

        Despite available resources to do so, I truly do not see this happening.  The fact is that the significant majority of our populace get their information through disseminators of propaganda, and have no ability to separate truth from lies.  The comments to this siote are clear evidence of that.

    • Diane

      My concern is what happens when civics is no longer taught in the schools? It often isn’t, with budget cuts, even though it’s been required by law. With so many groups working to destroy the public education system and replace it with privateering charter schools, don’t we risk undermining knowledge of civics, when corporately owned schools can teach whatever they please, however they please?

  • Anonymous

    Money |= free speech.

    Money = Action.

    Neil

  • Bridget

    Justice Breyer should do a nighttime radio talk show because his voice is so monotone it just puts me right to sleep.  Not too good for 10:36am at work :/

  • http://gregorycamp.wordpress.com/ Greg Camp

    Citizens United was indeed a bad decision, as bad as the Dred Scott decision.  Let’s hope that we don’t have to go through the same method to resolve the situation.

    One answer is for voters to ignore money and pick the candidates that they want to vote for.

    • Cory

      Candidates you want to vote for may never see the light of day thanks to money.

    • Ellen Dibble

      I believe if we were steadily informed of what our elected officials were doing, day by day, the way the White House website keeps us informed of Obama’s doings and that of his offices, then we could vote on the basis of what those people actually do, not the bits of their records the TV-ad-makers foist upon us.
          These are our employees, serving our most vital interests, and there are months, months, with only an occasional ribbon cutting, or very circumscribed public announcement.  Where is the media when we need them?  I have to assume that our representatives and senators do not WANT their doings to be known that precisely.  They PREFER the distortions of the money-fed campaigns.
          I blame the media for not INSISTING on the electorate being minutely informed.  The media apparently prefers the Citizens United corporate approach to elections.

      • Ed Siefker

        The mass media is corporate run, so you will always get a pro-corporate agenda from them. 

        • Ellen Dibble

          I’m talking about public services, radio and television.  Even open access local TV channels.  Nobody can unearth the goings-on about our actually elected people.  Then we complain when things erupt as fait-accomplis, as something that was worked out behind closed doors.  And we have big discussions about “process,” and openness and participation.  At a state and national level, you don’t have the maddened crowd turning up quite so easily.  There is distance to consider.

  • Caleb

    Speaking of the importance of an informed, involved population, does anyone see the potential consequences of the power given to major corporations through the media to shape our views/opinions and knowledge–positive feedback loop?

  • Charles A. Bowsher

    I have already read his book.

    Read that document? It starts with,

    “We the People” not “We the Corporations”

  • http://gregorycamp.wordpress.com/ Greg Camp

    In Ancient Greek, “idiot” referred to a person who was not eligible to particpate in public life.

    • Ellen Dibble

      I believe the way it is locally used, it could be a slight nod to the wisdom that is only accrued by years served in prison or jail, in short, persons not eligible to participate (to vote, right?).

      • http://gregorycamp.wordpress.com/ Greg Camp

        Wisdom accrued in prison?  I hope that we haven’t come to that.

        • Ellen Dibble

          I’m standing up for the persistent humanity of those convicted as well as the rest of us, especially in a nation that finds a way to lock up pretty much everybody who can’t find a legal way to make a go of it.  Big exaggeration there, but once you define someone as an idiot, as someone outside the mainstream, as if they spent time supposedly free to rethink your ways and purpose in a trance — then you define a large part of the population into a corner.  

          • http://gregorycamp.wordpress.com/ Greg Camp

            I was adding information to Breyer’s quotation of Pericles.  In modern terms, there are many idiots, but in common civility, we let them gibber, as is their right, and move on–I hope.

  • Fjg47jr

    If Justice Breyer believes that the Supreme Court could have made Barack Obama president absent riots in the streets, he’s been too long in the ivory tower. As to Justice Thomas, if the nature of the Court’s support is as ephemeral as public confidence, is not the mere appearance of conflict of interest enough to poison the well?

  • Dan

    Tom, are you listening to Justice Breyer? Get over your fixation on Citizens United. Lots of us didn’t like Roe v. Wade, but most of us are willing to let it be because our Supreme Court looked at all the facts (of the time) and made a decision based on the Constitution. If we can’t trust our Supreme Court justices to be above politics, and strictly rule by the Constitution, then we are all doomed to a life and society that I don’t want to be a part of.

    • Ed Siefker

      That’s the thing, we ARE doomed to that life and society that no one wants to be a part of.  Our government has been well off the rails for decades.   Plugging your ears won’t change anything.   Wake up to the fact that the Democracy we were sold as schoolchildren is a lie, and maybe we can make it better.

  • Elaine

    Ask Justice Breyer about Kelo v. New London and eminent domain.  How can people believe in the Supreme Court when the Supreme Court rules for private use over homeowner right to property.  New London, ceded eminent domain rights to New London Development Corp. 

    The Fort Trumbull site – property at the heart of the case – was used as a dump during Hurricane Irene of 2011. 

    Good decision, Justice Breyer?

    • Elaine

      i.e. homeowner’s rights to property…

    • Anonymous

      @5a71047ebf587972f6f7f658c24a7410:disqus  That someone later abused the intent of the SC decision is not the fault or responsibility of the Court.

  • Webb Nichols

    It is hard to excuse mistakes as obvious as Citizens United as human error in this day and age. The Supreme Court Judges do not, cannot live in isolation.

    This is like MacNamara justifying his position on the Vietnam War years after history had proven his thinking faulty and self-serving.

  • Yar

    How can the people really be silenced with social media?  Ideas have the possibility of countering money in politics.  A group of candidates could agree not to take any money while in office and if elected in a majority could limit contributions.  Citizens United can empower us to act.  We have the power, we only have to use it.

    • Ed Siefker

       They can be silenced among the crowd.  It doesn’t really matter if a million peons twitter from their bedroom as long as they control the mass media.  Look at how Ron Paul (not a fan) is being treated.  Huge support in the Iowa Straw Poll, not a bit of national coverage for it. 

      American politics is a lot like a magician’s stage act.  Sure, it looks like you’re given a free choice as to what card you pick.  But no matter what you do, the magician is in control.

      • http://gregorycamp.wordpress.com/ Greg Camp

        The magician is only in control if his audience follow his direction.  Educate yourself, and follow your own mind.

  • thegreengrass

    Justice Breyer, it’s hard to participate in civic life when you have views outside of either Democrat or Republican views. How do you suggest somebody get involved if they have values that more closely mirror that of a third party, who often have no chance to win in elections?

    • ulTRAX

      Out two-party system is an accidental by-product of the primitive manner in which we hold elections. Elections SHOULD be the tool to measure “the consent of the governed” upon which morally legitimate government depends. Instead our system has its roots in 1787 where if only states sent delegates, then all that was represented in the Constitutional Convention were state interests. Dividing legislators by their states and districts seemed the natural approach.

      But this method can’t measure minority opinion that is spread out over an entire state and forever deprives some citizens of representation for their beliefs. It forces citizens out of third parties where they can forever vote their conscience but NEVER get representation to vote for lesser of the evils in one of the two remaining parties… otherwise a minority candidate can prevail in a plurality system. This not only creates an artificially narrow political spectrum that I’d argue is functionally braindead, it creates disincentives for citizens to even bother voting with the result now that only about half of the voting age population votes in the best of years. Reagan’s “landslide”? It represented approval of only about 28% of the voting age population. Newt’s “Republican Revolution” only about 17%. The US is about 160th in the level of participation of democratic nations. Yet no doubt the True Believers here still think our system was handed down on a slab.

      • http://gregorycamp.wordpress.com/ Greg Camp

        The system wasn’t handed down on tablets of stone; it was passes from mind to mind.  If it’s in trouble now, that’s our fault.

        • ulTRAX

          Thanks for AGAIN spouting your belief that despite all the evidence our antiquated, antidemocratic, functionally braindead, and reform proof system is failing the People, you’d prefer to blame the People for failing the perfection of the Framers.

          Again, Greg, this is POLITICS not religion. The Constitution was NOT handed down on a slab. Stop treating it that way.

      • thegreengrass

        I couldn’t agree more with everything you wrote, ulTRAX.

      • Anonymous

        @984d6c3560932f1bf695184396762ca4:disqus  In the 2010 November elections, about 44 million voters elected some 67 new House members. They now claim they outvoted the 83 million voters who made Barack Obama president.

  • Joachim

    Justice Breyer:

    Do you believe in a Constitution who’s interpretation changes in step with the changes in Society; a sort of ‘living’ or ‘live’ Constitution. I ask this due to the overturning of the state sanctioned segregation per  Plessy v Ferguson by Brown V Board of Education and the changing of public attitudes towards segregation in the interim.

  • Pierreblume

    I believe that the size of the country has outgrown the constitution’s ability to manage the direction it is going.  Special interests now own most of the polititians.  Do you believe that Democracy should serve Capitalism or that Capitalism should serve the democracy in which it is allowed to flourish?

  • http://www.discoveringjustice.org Shannon in Boston

    Justice Breyer – We all know civic education is critical for an active and engaged populace. I work for a nonprofit called Discovering Justice that conducts programs that teach kids about the law and the justice system. We constantly come up against competing demands in schools. How can we make civic and justice education the priority it should be in schools?

  • Rkleins

    The constitution is archaic. We need to rewrite it to fit our society, not the 18th century. It is a different world. It doesn’t work and makes it hard to disrupt the inequality inherent in the status quo

    • SRL

      The constitution is an inspired document and it works just fine. It’s the people who misinterpret/misapply it and the masses who ignore it that don’t work. Some truths will always be truths regardless of the time period or the degree to which people decide to turn from truth.

      • ulTRAX

        Thanks for a demonstration of the Secular Religion that believes in the Constitution as a matter of faith just as Libertarians believe in the market. They are blind to the failures of each and conveniently redefine them away into successes. These True Believers are like those ever waiting for the Second Coming which never comes but they never lose faith.  
         

    • Mill

      1. Who is this “we”?
      2. How do you (as in you – Rkleins) go about selecting the writers of the new constitution? On what basis?
      3. How do you get the rest of the citizens agree to your plan?
      4. Have you ever lived with housemates? Tried to come up with a “house constitution” (general rules of the house) that everyone agrees to? Was it successful in practice, and to what extent?

      • Hellafiedpapacheese

        We all tend to, in the quest of linguistic fluidity, make inductive references, like we and they. At times it has been over dramatized in A jactation to “one up”. Is this that case? Or is the person to whom this slogan was directed really thinking “they” were trying to get him and “they’re listening” as to watch out for them.     Obviously though the bindings of our borders have been so far unseen in the color of it. But human factors can gain encirclements around many with a “shinier watch” as the only winning factor. Thankfully the mindset of destiny gave us a few good thinkers in our early”nation stages. The freedom and satisfaction  of being  equal, greatly foster a weightlessness for natural occurring engineers, thinkers and tinkers.
           Thats where Ive always said ”  The corrupt neo crapatilists  are not as smart as
        “they”
         

  • http://twitter.com/PersnicketyRph Jonathan Lloyd

    Scalia is often said to be the brains on the court. I’m going to say that Justice Breyers ain’t no slouch. Impressive man.

  • Colin

    Justice Breyer:
    Could you comment on the increasing polarization of the Supreme Court’s clerks along political lines? As a recent NYTimes article suggests, this increasing polarization may entrench polarization for future generations of judges.

  • Rational

    Ask Justice Breyer how the court cane to the National Bank Act forming a common common currency, to justify banks extending the laws of operation from the State of charter onto the remaining states.

    Should the court be deciding matters of commerce, as in the Marquette decision?

    • Rationa

      Wow that’s a mess. Damn little text box…

      Ask Justice Breyer why the court used the National Bank Act forming a
      common common currency, to justify banks extending the laws of usury from the State of charter onto the remaining states.

      Should the court be deciding matters of commerce, as in the Marquette decision?

  • Anonymous

    Excellent point Charles.  I think that each section of the Constitution begins with the most important point.

    Neil

  • Anonymous

    I think Justice Breyer misses the point on the political complaints against Justices Thomas and Scalia.

    Clarence Thomas’ wife was so intimately involved in the Bush campaign that she was helping to draw up a list of Bush appointees more or less at the same time as her husband was adjudicating on whether the same man would become the next President. Finally, Antonin Scalia’s son was working for the firm appointed by Bush to argue his case before the Supreme Court, the head of which was subsequently appointed as Solictor-General.

    They should have recused themselves and their failure to do so created at least the appearance, if not an actual, conflict of interest.

    The Justices are their own judges when it comes to recusal, and the fact that there is no one to whom they have to answer has become a real problem.

    • TFRX

      Republicans don’t know the meaning of the word “recuse”.

      Fortunately, nobody in our press is going to ask them.

    • Alitza Blough

      We really are a corptocracy and one proof is in the fact that “conflict of interest” has come to be equated with “influence” and both are seen as good and useful tools to break through the red tape and get what you want… much as the sole (humm… soul?) purpose of a corporation is profit. If more than a handful of people in this country still knew what conflict of interest meant, Bush 2000 wouldn’t have stood… and Thomas and Scalia would be disbarred… they are a disgrace.

  • Ellen Dibble

    Legislating from the bench — half the SCOTUS’s work is mind-reading the intent of the statutes.  Hmm.  I hope they don’t take that too literally when reading the intent of our legislators is so clearly not the same as reading the will of the people (consider multiple, multiple polls).  We’ve got a batch of corporate puppets legislating, in some respects.  So I hope the justices take that into account.

    • Ed Siefker

      We’ve got a batch of corporate puppets adjudicating too. 

  • http://gregorycamp.wordpress.com/ Greg Camp

    I see one job of the Supreme Court as being protecting the liberties of the individual over the corporation, society, or state.  When the Court decided in favor of persons over groups, I applaud.  When it favors collectives over individuals–or even worse, confers individual rights to a group–I tremble.

  • guest

    Justice Breyer,

    All social change — labor, suffrage, civil rights– have come from social unrest and violence, not from the supreme court.

  • Ron Gower

    I ran for Town Council in 1996 locally. I run a local service business and I have found that when I stated ideas that are not in agreement with the majority, my job stability comes into question. I have learned to keep my mouth shut and I will not comment publicly on any issue. This is not right. Ron Gower  

    • Ellen Dibble

      I find that when my views are not known, my own service business ends up seen as a black box, or is defined by various rumors as to myself.  If you ran for town council, people got a chance to define you by who you are, versus how you do your business.  It seems to me your clientele might change, and you might find yourself with a more compatible group of clients.  
         My own view on freedom of speech where it can backfire on a business is that some of us have more freedom of speech than others.  If you have family that might take a hit for what you say, then that’s a reality.  Ditto for a business.  Very few of us can really take all the stands we want, at least in the ways we want.  Even the Ku Klux Klan wore white masks, right?  How many posters here are using monikers that do not reveal their identities.  Any idea why?  Not that they’re in favor of white supremacy or whatever; just that they have no idea what might come back to bite them.  My take.

      • http://gregorycamp.wordpress.com/ Greg Camp

        Theoretically, I have academic freedom, so I’m safe.  I do believe that we have the right to post under any name that we wish.  Our choice of name sometimes is part of our message.

    • Publius

      I take it then, that you are a strong advocate of anonymity in public discourse?

  • Guest

    People were particularly concerned about Citizens United not because of the decision but because of Thomas’s and Scalia’s association with Koch, American Spectator, Manhattan INstitute

    • Alitza Blough

      I would only add that we are concerned not _only_ because of the decision…

  • Sfwmson

    I’d love to hear the justice talk about the law clerks or aids who assist the justices. Thanks.

  • Scott

    Great show, wonderful discussion. My high school history teacher taught us one day the following principle: Your right to swing your fist stops where my nose begins. Surely this holds true with speach as well. We have the protected right to speak our minds. But that when that speach degrades or in any way damages (we do after all have laws against and slander and speech that incites violence), surely your right to swing your verbal fist stops where my nose begins…

    • Anonymous

      No it doesn’t. 

    • Ed Siefker

      There is no such thing as a verbal fist.  Fight speech with more speech.

  • Charles A. Bowsher

    Comment to Johnathan Lloyd who said ”
    “Scalia is often said to be the brains on the court. I’m going to say that Justice Breyers ain’t no slouch. Impressive man.”
     
    Actually Scalia is no Brain, he is a bully, a little creepy and very political, much more like a Karl Rove.

  • Dangewertz

    Like most Americans, Justice Breyer is looking after his own narrow self interests — his strength, importance and reputation as one of the most powerful men in the country. His view is simply a self-delusion to allow him the privilege to keep serving on the court and to keep the lie alove that the court is doing just fine in this best of all possible nations. If he was a truly moral man, he would be decrying the legitimacy of the court, and the corrupt and despicable natures of some of his fellow judges as loudly and publicly as he could. America’s state of democracy does not become a dispicable failure by accident. Men like Breyer work as hard to keep the corruption of the sytem in tact as do men like Clarence Thomas, or Scalia, or even Michell Bachman do. Everything he does keeps his power and his position safe and secure, the country be damned. He may believe what he says, but his real occupation in life is to ignore all the horrors he must deal with on a regular basis, ignore all the insults and coruptions, and keep his powerful job intact.

    • Ed Siefker

      Thank you!  This cannot be said often enough.

      • http://gregorycamp.wordpress.com/ Greg Camp

        The cynicism of these comments is distressing.  The Supreme Court does err, as all humans do, but often, the justices make decisions that preserve individual liberty against group interest.  The original intent of the Constitution was exactly that.  The Framers knew that groups didn’t need protection.  I have some faith in what they were trying to do, and it’s our job to hold on to that and fight for it.

        • Ed Siefker

          I know it’s distressing.  I’m pretty distressed myself.  I’d love to hold onto some shred of hope, but I don’t see any opportunity to change anything for the better.  I know you have faith, but faith by definition is irrational.  If you have a plan however, I’d love to hear it.   It’s got to be something more than advocating through the normal political channels however, because people have been doing that for decades and it’s just gotten worse.

          And yes, the Supreme Court does throw us a bone every once in a while.  A lot like an abusive spouse bringing flowers and promising everything will be different.  It’s never anything substantial though, all part of the dog and pony show. 

          e.g. the reversal of DADT.  Yes, it’s a good thing.  But it’s a good thing for a small proportion (gays) of a small proportion (who want to go into the military), and the right they earned is to fight and die for our corrupt system.  And we’re supposed to be thankful?

          I know, I am abjectly, painfully cynical.  That’s what being realistic gets you these days. 

          • http://gregorycamp.wordpress.com/ Greg Camp

            It’s been said that a cynic is a tired idealist, but I’ve had some coffee this morning.  The end of Don’t Ask, Don’t Tell is one step toward a general acceptance of individual rights, so celebrate it.  I don’t let my cynicism swamp my core beliefs.

            As for how to change things, each of us has power today that no one had before.  For the price of an Internet connection (or just a trip to the library), we can speak to the world.  In addition to that, tell everyone you know that there’s no excuse for voting for a candidate that you don’t support.  I vote Libertarian or Green much of the time.  The only thing that preserves the current two major parties is the sheepishness of the voters.

          • Guest-22

            lots of people can’t afford an internet connection and have no access to a library (closed, due to budget cuts. Thank you, Libertarians, for your support of our tax system that supports public libraries with working computers and internet access).  Most people with the biggest needs have a small voice. Very small whisper.

    • ulTRAX

      The US perhaps more than most nations is deluded by a secular religion that the Constitution was handed down on a slab and we mere mortals dare not critique or touch this magnificent creation. But to believe even  half of that is to forever excuse away all the glaring failures of our system… a system that fails on almost every count to produce morally legitimate government where citizens based on the consent of the governed… a candidate rejected by the People can be installed as president, where the smallest states that can block any amendment now contain less than 5% of the population, where states with only 18% of the population get 52% of the Senate seats and have a veto over a House that can be Gerrymandered.

      • http://gregorycamp.wordpress.com/ Greg Camp

        Do you realize that direct democracy is mob rule?  What happens when the governed consent to witch burnings, lynchings, segregation, and on and on?  I’m glad that we live in a country in which minorities, including individuals, can gum up the works of majorities.

        • ulTRAX

          I’ve repeatedly addressed your red herring arguments in another thread. SHOW ONE PLACE where I said I was for direct democracy.

          If you can’t make a point without gross distortions, you really haven’t made a point… have you?

          • http://gregorycamp.wordpress.com/ Greg Camp

            You haven’t actually told us what you do want.  We know what you’re against.  What are you for?

      • Anonymous

        There are democracies now which work better than ours.  I think the first thing we need to do as a nation if we want to pull out of a slump (created by us) is to drop the exceptionalism, the
        pledge of allegiance, the city on the hill, the America-is-best stuff
        and do what marks most successful human beings: the willingness to learn
        and change. 

        • http://gregorycamp.wordpress.com/ Greg Camp

          Look at the erosion of liberties in the United Kingdom.  While a parliamentary system might be a better voice for The People, TM, I’m glad that we have a constitution that preserves my right to be contrary.

          • ulTRAX

            More of Greg’s strawman arguments… that we can’t have BOTH a system of majority rule AND one that protects his right to parrot the secular religion. LOL Sorry Greg… I don’t see ANY evidence you’re contrary to anything except critics of the system.

  • Rational

    I lost more respect for the SJC when they were addressing the rules of baseball and golf, than from any of the other decisions.

  • LPGrasso

    The concepts of treating corporations as the equivalent of a person and equating money with speech are the greatest threats to our democracy and freedom.  These are much greater threats than any we face from terrorism.

    At the time of the framing, corporations had to have a public purpose to be granted a charter.  Now organizations with the sole purpose of making profit and with no other regard for humans or the planet have more rights than humans.  Multinational organizations can put unlimited resources into influencing our elections.

    If money is equivalent speech, the extent of your free speech rights depends on how wealthy you are.  In addition, the court seems intent on protecting anonymous wealthy donors from negative reactions to their speech because having to face negative public reaction to the positions they support might inhibit their speech.

    Citizens United is easily on par with Dred Scott as one of the worst decisions in the Supreme Court’s history.

    • Ellen Dibble

      Amen.  Now what?  

      • Zing

        Nuthin’

  • ulTRAX

    Democracy… everyone uses the term, Liberals wear it on their sleeves… the problem is no one bothers to define it. The result is we can have an un- or antidemocratic system that actually permits minority rule or where ultra small minorities can block the majority, yet it’s still dubbed a democracy.

    • http://gregorycamp.wordpress.com/ Greg Camp

      We on’t have a democracy and never did have–thank the gods or the politicians of the time.  What we have is a representative republic, instead of mob rule.  Our duty, as citizens, is to demand the preservation of liberties from the leaders that we choose.  If they refuse, we must replace them.

      If you dislike what the present minority has chosen, make your own minority, and change things.

      • ulTRAX

        Thanks for a regurgitation of what you learned in 4th grade history.

        But there’s a contradiction in your assumptions. There is NOTHING in the concept of a republic that REQUIRES it to be un- or antidemocratic… in fact quite the opposite. Even a representative republic derives its moral legitimacy from the approval of the MAJORITY. Where our system fails this simple test is pretending that states are separate entities apart from the US citizens who live within, and there for states should have their own vote… even if it leads to the absurdity of now the smallest states that can block any amendment have less than 5% of the population and the smallest states that can PASS any amendment have less than 40% of the population.

        • http://gregorycamp.wordpress.com/ Greg Camp

          Not fourth grade history; the Founders.  They feared majorities, as do I.  Majorities are often right, except when they’re wrong.  When they’re wrong, it’s terrifying.  Our system was designed to listen to the majority most of the time, but always to hold the majority at some distance from power.

          • ulTRAX

            Yawn… in your vast reading of US history it seems to have escaped you that the Constitution did NOT meet with the wide approval you seem to think it did… and was barely ratified. Here in Massachusetts the vote was something like 187 to 168. What US history has buried are all the critiques of the Constitution and only the views of the victors have prevailed leading to the secular religion you seem to hold so dear.

            As for the problem of the tyranny of the majority, I’ve addressed that in other posts. There is NO need for an un- or antidemocratic solution here. In fact ANY vote weighting/dilution scheme… and the Constitution is full of them, CAN PERMIT MINORITY RULE. When that happens, as it did in 2000… you blithely bush that off as inconsequential.
             

          • http://gregorycamp.wordpress.com/ Greg Camp

            You haven’t explained what your opposition to our Constitution is, other than to say that we don’t have direct democracy under our system.  What’s so wrong with the way that we do it?  Yes, I’d prefer a parliamentary system with a constitution, but what we have is good enough for our needs.

            You keep tossing out that line about our secular religion as if it’s some kind of insult, but I take it as a compliment.  As a nation, we need something to unify us.  We don’t all come from the same culture or ethnic group or traditional religion, but we have a system of government that does something special.  What’s so wrong with that?

          • ulTRAX

            Greg, are YOU EVEN READING MY POSTS? You’re so blinded by your historical red herrings about mob rule and direct democracy and need to blindly defend the status quo that you can’t even see that I’ve CLEARLY written over and over again… that I was for a two chamber representative democracy, checks and balances, the Bill of Rights etc. What I oppose is ALL aspects of state suffrage in the Constitution, a voting system than is incapable of accurately measuring the will of the People, and a system that deprives citizens the right to vote their conscience and  get some representation.

          • ulTRAX

            GC wrote: “Yes, I’d prefer a parliamentary system with a constitution…”How would you prefer ANY other type of government than what we have when you’ve yet to state ANY defect in the current system and deny the existence of all those I have raised? Sorry Greg, it doesn’t add up.  

      • ulTRAX

        The Constitution was probably the best the politics of 1787 could produce. But the Constitution is so reform proof and anti-democratic it locked those primitive politics in cement held together by a secular religion that believes it’s an inspired document handed down on a slab. Federations have a useful place on the spectrum of possible governments but there is a danger they then stand in the way of progress and greater unity. I’m not calling for the abolition of states. But I am opposed to ALL vestiges of state suffrage in the Constitution which make it un- and antidemocratic.

        • http://gregorycamp.wordpress.com/ Greg Camp

          What’s wrong with the current method?  How does it harm us?  If you are thinking of the 2000 election, recall that a simple majority can vote in a tyrant.  Systems with proportional representation–Italy and Israel, for example–tend to be unstable.

          • http://reinventing-america.blogspot.com/ ulTRAX

            Yes there is a danger that if poorly conceived tiny minorities can have disproportionate power in a proportional representational system. But that is dealt with the same way the Framers did… with check and balances. In this way we can have BOTH legitimate democratic rule with protection of minorities AND a lively intellectual market place of ideas instead of the intellectually braindead two-party we have… a system arguably BOYCOTTED by its own citizens. Then what do we have? As I stated earlier Reagan received the approval of only about 28% of the voting age population (VAP) and Newt’s Republicans in 94 only about 17%. But to you such obscene absurdities are acceptable and proof of morally legitimate government?   

             
            As for what those check and balances are… it’s NOT ROCKET SCIENCE. One check is surely the Bill Of Rights approach. I also believe in a two chamber legislature. But I don’t believe both should be based on geography. I’d rather see the Senate based on national proportional representation and the House still represent local concerns. Whether one house of the other has shorter or longer terms can also be a check on the majority. My concern, and clearly not yours, is that some citizens are forever disenfranchised by our system. Your naïve approach about simply running for office sounds like a solution but doesn’t deal with another core defect in our system… that only the votes for the election winner count, and the others don’t. Proportional representation means EVERYONE’S vote counts for some representation somewhere in government. How terrible, aye!

          • http://gregorycamp.wordpress.com/ Greg Camp

            In the last several decades, a majority or near-majority of eligible voters has made the choice not to vote.  Such people are choosing to accept whatever we active voters choose.

            That’s not necessarily a bad thing.  In 2004, I worked for the Department of Human Services for a brief period.  We were required to offer clients the opportunity to register to vote.  One client asked me if there were an election that year.  It was all I could do not to drop her voter application in the trash.

            We don’t have a perfect system, but what we have does work, when we fulfill our responsibilities.  When we don’t, we get what we deserve.

          • ulTRAX

            A system that permits MINORITY rule, discards the votes of almost half of those who vote, doesn’t provide citizens the right to vote their conscience and get representation, and has a artificially narrow political spectrum that sabotages the marketplace of ideas, is NOT proof of a system that “works”.

            Like all apologists, you blame people for not working around the defects in the system… and forever hold the system itself blameless.

            Politics IS NOT RELIGION. We DON’T have to just accept the decisions made back in 1787 or all the historical rationalizations made for our system. In a world that had REJECTED our model and with governments that have none of our defects, American’s SHOULD finally think for themselves. But clearly you prefer not to.
             

          • http://gregorycamp.wordpress.com/ Greg Camp

            But you have been advocating majority rule.  In that system, the minority loses.

            As for rewriting the Constitution, do you really want to try that today?  Do you really imagine that we could come up with something as good as what we have in our current political climate?

          • ulTRAX

            Are you even reading my posts Greg? At least half of them have dealt with the issue of protecting legitimate minority rights from the majority. Where we differ is I also want to protect the majority FROM THE MINORITY. You’ve been silent on this issue even though the election of 2000 is fresh in all our minds. Then US (and World) history changed for the worst AGAINST the consent of the governed. The voters for both Gore and Nader clearly were AGAINST Bush’s irresponsible tax cuts and missile defense system. Yet we got them and more anyway. Bush then could use the power of incumbency to solidify his and his party’s grip on power.

            This VIOLATES the standard of moral legitimacy for government best stated in the Declaration of Independence that government derives its JUST powers from the CONSENT of the governed. And that’s my point. The politics of 1787 might not have permitted any other government… but it’s not 1787 any more. Yet citizens are still mired in their grade school indoctrination that despite all the evidence to the contrary, ours is some perfect system.

          • http://gregorycamp.wordpress.com/ Greg Camp

            No, I addressed the 2000 election.  A majority of voters in a majority of states voted for Bush.  I wasn’t pleased, but I rarely vote with the majority.  The popular vote is just a number.  In our system, it’s the electoral votes that matter.  I don’t see that as a problem.  It works.

            What Bush did as president is a result of the Supreme Court falling down on its job and of Congress doing the same.  When the checks don’t balance the powers, the system doesn’t work.

            What you haven’t given is your proposal for a better system, nor have you said how we can realistically get to that perfection.  Given the mood of many voters today, a new constitution would reflect the values of the Tea Party.

          • Ed Siefker

            Don’t be obtuse.  Our system is mathematically stacked against third parties, and the 2000 election is the perfect example of this.  A majority of voters voted for politicians that were much more liberal than Bush, yet we got extremely conservative policies.  This is disenfranchisement.

            How to do better?  It’s easy.  Ditch the winner takes all-first past the post voting system.   There are any number of alternative voting systems that would do better.  Instant Runoff Voting is just one.

            It’s easy to come up with workable alternatives.  What’s not easy is getting the entrenched power structure to adopt a voting system that would weaken their grip on power. 

          • ulTRAX

            All your suggestions are, of course, desirable. But there are immense roadblocks to reforming our system. 1: the Constitution is virtually reform proof and 2: too many Americans like our friend GC who treat our system as if it were revealed truth for which we mere mortals dare not critique decisions were made back in 1787. Part of this religious approach to politics is a denial that there’s any fundamental problem… and it there is, it’s the People’s fault. The system must remain eternally blameless. It’s a bad situation and either it will become a pressure cooker or one where the apathy just keeps growing. Why settle for being 160th in citizen participation when we can go for broke and be in LAST place! 

          • ulTRAX

            GC wrote: “No, I addressed the 2000 election.  A majority of voters in a majority of states voted for Bush.” That you’re unaware of the absurdity of your own statement shows the depths of your belief in the Secular Religion.  I remember a statement made in the 84 election by another apologist for the status quo from Heritage. He said, presumably with a straight face, that the EC could provide for a mandate when there was none from the votes. Say someone won by only one vote in every state. There’d be no mandate by winning an election with a mere 50 votes. But through the magic of the winner take all EC system, the winner would have an astounding mandate to govern!! My god… this is just more proof that the Secular Religion has deprived True Believers such as yourself of ANY sense of what morally legitimate government even is.   

          • ulTRAX

            I haven’t proposed a new system. I’ve proposed correcting the defects in ours.  

          • Ed Siefker

             A lack of a vote is the only honest choice most people can make, when they are not presented with any acceptable options.   The US desperately needs a “no confidence” options, with teeth.

          • Ed Siefker

             Cherry picking Italy and Israel as examples of proprotional representation is intellectually dishonest.  How about Canada and Germany?

          • ulTRAX

            So in your mind, overturning the voice of the People and having some unelected Star Chamber install as president someone REJECTED by the People does no harm? So what if the nation goes in a direction REJECTED by the People. So in your mind there’s no harm to the moral legitimacy of the government itself? What lesson does it teach the People about the value of elections when elections don’t matter? There are reasons voter turnout in the US is so abysmal… and it’s the failure of our system to deliver what we were brought up to believe a democracy SHOULD deliver. Your position is indefensible. You support all these anti-democratic features of our system that suppress voter turnout then blame the People for the failures of the system itself. There’s another key element at work here too. Our system isn’t just anti-democratic system, but virtually reform-proof as well… and demographic trends are making it more so. We not only have an amendment process where the 12 smallest states that can block any amendment contain less than 5% of the US population, we have the additional absurdity that the 38 smallest states that can ratify any amendment have less than 40% of the population. All this insanity is compounded in that anti-democratic abomination called the Senate where a mere 18% of the population has a majority of the seats.   

          • S Griffin

            Supposing the US adopt new election policy and one person, one vote is instituted, please carry out what you believe the likeliest scenario would be.  Thank you

          • ulTRAX

            If we had a popular vote for president, we’d finally have the civic equality every American SHOULD expect from being a citizen. As for the election, in a democracy the chips will fall where they will. I don’t buy all the fear mongering about the popular vote. There are better ways to protect rural interests than giving some citizens a bigger vote than others because ALL such vote weighting/dulution schemes… schemes ILLEGAL on all other levels of government, can result in minority rule.

            The case Reynolds v Sims makes the moral case for equal representation…
            http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=377&invol=533

            Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests….

            And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State’s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable.

      • ulTRAX

        BTW, your mob rule is the Red Herring that never dies. We can have BOTH democratic rule AND protection for minorities. And in reality why are only SOME minority groups… those who choose to live in small states, given a bigger vote than other citizens? If this is your preferred solution to protect ALL at risk minorities then why stop with those who live in small states? How about giving women, racial minorities, gays, etc ALL bigger votes in government?

        I, on the other hand want to preserve legitimate minority rights AND preserve democratic rule… and that can be done by expanding Bill Of Rights protections to small states or allowing them to chairmanships in Congressional committees so they can better shape legislation concerning their state. What I do NOT accept is providing those who live in small states the power to affect ALL matters before the government and have a veto over the majority.

        • http://gregorycamp.wordpress.com/ Greg Camp

          Since women are actually a majority, they can elect any candidate that they want.  As always, the problem is that most voters just go along with what they’re told to do.

        • Anonymous

          Please stop using all caps for some words.  It is distracting. 

          • http://reinventing-america.blogspot.com/ ulTRAX

            PLEASE stop using underscores in your pen name. It make you look illiterate.
             
            As for my posts… PLEASE stop responding since it’s clear now for the past two days you’ve nothing intelligent to add to the discussion but only want to bitch and moan about bold face and caps.

          • Anonymous

            “John” was already taken so I was forced to add the underscores in order to come close to it.  I would prefer to read your posts rather than ignore them as I really do find it distracting to read text with AND, BOTH, NOT, SOME, and other words almost randomly written in caps and entire paragraphs bolded.  I made two polite requests but thanks for insulting me.

          • ulTRAX

            Am I supposed to change my style of writing just for YOU?

            I think not John. Get a life.

          • http://gregorycamp.wordpress.com/ Greg Camp

            Grammar and diction don’t matter to some.  They just get in the way of majority rule.

          • ulTRAX

            BTW I’ve no idea whose posts you’re trading. My use of caps is NOT random. I use caps for emphasis since it’s too much of a pain in the butt to use the HTML code to italicize those same words. And NO I don’t put entire paragraphs in caps. Again I’ve no idea what you’re babbling about. The worst I can think of is when I posted the source for the US Historical Budget Tables and the title of the page was in caps when I copied it. I didn’t write them that way.
             

          • http://www.dogoodgauge.org The Do Good Gauge

            Presentation is 50% of the argument.    Are you going to let a programmer win the debate?   The use of all caps is considered yelling to many.  Not a good tactic in convincing people to your point of view.

            Just a suggestion.

          • ulTRAX

            Pray tell, WHEN did I ever  use ALL caps? I’ve been around the net for over 20 years and while I have plenty of bad forum habits, shouting isn’t one of them. Perhaps the whiners here might want to respond to CONTENT. Oops, now THAT is one of my bad forum habits.  

          • http://www.dogoodgauge.org The Do Good Gauge

            Your shouting when, all, content, and that.  I didn’t make the rules, just following the style regulations a prior company established through the advice of a human factoring engineer.   After some hesitation I came to agree with the rule.   J_o_h_n pointed it out, I’m agreeing with him.   I’ll admit your caps got my attention, though without reading the content my first impression was here is the comments of blowhard.   Seems to me you would rather people judge you for the content instead of style.

            Take the suggestion for what is worth.

          • nj

            Just so you know, the proper way to emphasize a word is to italicize it, not to put it in all upper case. It’s just good writing style to observe accepted convention.

          • Anonymous

            I wrote “almost randomly” referring to the fact that if you emphasize so many words that nothing really gets emphasized.  I didn’t write that you put entire paragraphs in caps. 

          • ulTRAX

            Oops…. subtract one “like” for John’s post. I really do need to be more careful.

        • notafeminista

          What are “legitimate minority rights”?  Does a given minority have more or different rights than the majority?

          • ulTRAX

            Leaving aside the matter of individual rights, I was refering to the possibility that urban voters might wish to deprive rural interests of X, Y, or Z. I do NOT believe the best way to deal with such issues is to give rural voters a bigger vote because ANY vote weighting/dilution scheme risks minority rule as we’ve seen in 2000 and what we often see in the Senate.  

          • http://gregorycamp.wordpress.com/ Greg Camp

            The 2000 election wasn’t minority rule.  A majority of voters in a majority of the states voted for Bush.

          • ulTRAX

            Thanks for again demonstrating that you’re not in the least interested in TRUE democratic concepts. In your mind citizens don’t count. Where they choose to live does.  

          • ulTRAX

            Leaving aside the matter that Bush probably did NOT win Florida, I can see that you are opposed to the idea of civic equality where all votes weigh the same.

            In YOUR preferred system, when it came to the outcome in the EC of the 2000 election, the vote of any citizen in Bush’s Florida lead weighed 1000x the vote of any Gore voter elsewhere in the nation.

            Anyone who values the concept of morally legitimate government would be appalled by this anti-democratic farce.

          • notafeminista

            I agree; neither group (the urbanites or the rural dwellers in this example) should be given a “bigger vote” – but are you saying minority rule is undesirable?

  • Worried for the country(MA)

    Thank you for an interesting show.

  • http://gregorycamp.wordpress.com/ Greg Camp

    I prefer the deliberation of representative government.  The kind of direct democracy that you advocate is too efficient.  It can get too much done before anyone can stand up and shout, “Halt!”

    • http://www.dogoodgauge.org The Do Good Gauge

      No more so than our existing system.   The proposal is a suggestion for a single district.   I’m not sure the idea would succeed.   There must be one district in the United States with a constituency willing to participate in the experiment.    I’m sure there is one district with nothing to loose and something to gain in trying.

      • http://gregorycamp.wordpress.com/ Greg Camp

        Nothing to loose, eh?  Is that how the word will be spelled in your direct democracy district?  What if I live there and insist that the word is spelled “lose”?  I’ve participated in a system like what you propose.  Single persons derailed many good ideas, while at the same time, anyone who disagreed with the group consensus was ostracized.

        • http://www.dogoodgauge.org The Do Good Gauge

          If you lived in my community and insisted that the word is spelled lose, I would thank you, correct the post, and move on with the argument.    Thank you.    The word has been corrected.

          The solution to derailing an effort is refinement.   If an argument is not worthy of the scrutiny of an individual peer, it is not worthy of the public.    Individuals must be provided the publication tools to refine a thought and be given a chance at higher demographics.    Solutions should not be expected off the cuff.     Community solutions evolve through community involvement.  

        • http://www.dogoodgauge.org The Do Good Gauge

          I’m suggestion a tool to facilitate intelligent and respectful participation making it available to each citizen.   No different than what Stephen Breyer suggest in this program.

          Stephen Breyer’s quotation from this program, Look at that document, read it carefully, nothing in human life brings
          us perfection… What is the alternative for 308 million who think different things trying to live together. It can’t be war among men and therefore it is law among them … You don’t like what is going on, I can’t tell you what to do, if I had a shot at it, I would say go out and participate. Try to persuade people, try to understand, and when you can’t persuade people to your point of view, then you try again… I can’t tell you what kind of life to lead, but I can tell you this because I’ve worked with this document, the Constitution, for seventeen years in the Supreme Court. If you don’t participate in your communities and get out there and try to persuade people. If you don’t do that, this document won’t work.

    • ulTRAX

      Can someone repost what this “flagged” post contained? Obviously it wasn’t spam or off-topic. If it were CG would not have responded as he did.

      • http://www.dogoodgauge.org The Do Good Gauge

        It might of been flagged for length or the use of h1 tags.   Here is a link to the essay on my portal.    Thanks ulTRAX for the interest in the post.

        Democracy Rules   

  • Mike B

    Great discussion.

    Simple question:

    All the legal nuances, technicalities and precedents aside, does the proverbial “little guy” have a chance anymore in America–in the courts or in any institution–up against insurance companies, corporations, interest groups, etc…

    • Stierman1

      The short answer is: No.

      Maybe the little guy never did.

      • Anonymous

        And much of the lawyer and legal system bashing we see orchestrated by such institutional players as doctors, insurance companies, corporations, law enforcement, are designed to make sure they never will.

    • Anonymous

      As some have already pointed out. No. Case in point: When Monsanto sued farmers for saving their own soybean seeds the farmers don’t stand a chance. Interesting connection here is that Justice Thomas was a lawyer working for Monsanto before he became a Supreme Court Judge. It is also interesting to note that one of the first cases he ruled on was in favor of Monsanto and it has a direct baring on the rights of farmers to save their own seeds.

      So the answer is NO, we the people or little folk do not stand a chance.

  • http://profiles.google.com/elizabeth.sweetman Elizabeth Sweetman

    This was a terrific show, thank you so much Tom. 

  • Anonymous

    This was a wonderful show. Justice Breyer was a great guest and I wish we could hear from more from the Supreme court justice in this kind of context. It’s shows such as this that remind what makes this nation what it is. Justice Breye reinforced the how the ideas of critical thinking and discourse are the corner stones of a democracy.

  • Ray Barrier

    Two questions I would like to ask of Supreme Court Justice Stephen Breyer: First, do you think our forefathers would have joined the Union if they knew it was a mafia type organization that would kill you if you tried to leave it?  Second:  If four of my friends and I decided to go to lunch, I voice my choice of where we should eat and my chances are one in five I will get to eat where I choose.  If there are 50 persons in my office and we decide to go to lunch, I must yell loudly and my chances are one in 50 of getting my choice.  If there are 500 in the room, I must buy lunch for my friend to borrow his megaphone to get my preference known and my chances are only one in 500 that I will get my choice.  If I want to get a Federal Law passed, my chances are one in one fourth billion of getting it passed and I must pay millions for tv time to influence others.  If my chances are much better at winning the lottery than affecting my government policy, why should I even participate if I am not a wealthy company wanting favors?

    • http://www.dogoodgauge.org The Do Good Gauge

      There are 312 million citizens in America not 4 billion.  Though your chances at getting a Federal Law passed is rare, the chances drop significantly based on refining your position and trying to convince others of your point of view.  
       
      What is the alternative for 308 million who think different things trying to live together. It can’t be war among men and therefore it is law among them … You don’t like what is going on, I can’t tell you what to do, if I had a shot at it, I would say go out and participate. Try to persuade people, try to understand, and when you can’t persuade people to your point of view, then you try again — Supreme Court Justice Stephen Breyer — Excerpt from the program, MP3

      • Ray Barrier

        one fourth is different from four…

        • http://www.dogoodgauge.org The Do Good Gauge

           I stand corrected.

        • Ray Barrier

          and convince me how one convinces enough persons without spending great amounts of money…

          • http://www.dogoodgauge.org The Do Good Gauge

            There are more of us than there are of them.    It doesn’t take money, it takes an intelligent citizenry who refuses to be divided by wedge issues.   The first step is to understand the tactics being used to destroy the middle class.   I would start with Art of War by Sun Tzu and The Prince by Niccolò Machiavelli

            Secondly I would listen to my follow citizen and not assume my perspective is best or I am some authority who can demand attention on command.   Believing that I know better than all makes me no better than the ones in charge.   

            Democracy requires civility, not a donation.

          • Ray Barrier

            I so wish you were correct.  However, I have seen how a group of “Swift Boat” persons spent much money to make an actual war hero John Kerry look like a bum while making a juvenile delinquent George Bush into a hero. And the sad thing is a large number of the voters fell for this.  I am convinced the persons who are able to think through such manipulations are in the minority.  Jefferson was convinced that democracy would only work for an educated electorate. 

          • http://www.dogoodgauge.org The Do Good Gauge

            I agree admire Jefferson a great deal.

            His stance on education was optimistic.  

            This [bill] on education would [raise] the mass of the people to the high ground of moral respectability necessary to their own safety and to orderly government, and would complete] the great object of qualifying them to secure the veritable aristoi for the trusts of government, to the exclusion of the pseudalists… I have great hope that some patriotic spirit will… call it up and make it the keystone of the arch of our government.
            – Thomas Jefferson.

            As a penny pincher, here is my stance of money and politics.    What is my five dollars worth compared to my tenacity to seek and share understanding.    If everyone gave five dollars to the same cause, the cause would receives over one and a half billion dollars.   What does 1.5 mindless dollars with no sense of direction buy you.   Nothing.

            Yes, the people require education.    Practice and participation provides the opportunity to learn.

            Ray, thank you for the correspondence.  I had a dream last night and described it on a recent post in this blog, I would be interested in hearing your thoughts on that dream.

    • Zing

      If no one wants to eat lunch with you it’s probably because in your mind it’s all about you.    

      • Ray Barrier

        You should google “Analogy…

  • Stacey Griffin

    I am interested in omitting the electoral college from current practice.  Which branch of government has authority over this decision? What ramifications do you foresee? 

    • ulTRAX

       
      It would take an amendment to the Constitution to abolish the EC… and given the amendment process is SO antidemocratic that the 12 smallest states that can stop any amendment contain a mere 5% of the population… those small states will never give up the power they could never earn in a true democratic system. It’s the same with our anti-democratic Senate which is protected by a poison pill that NO state can lose its suffrage in the Senate without its consent.

      Even Bernie Sanders never talks about democratic Constitutional reform because under our system his Vermont voters would never want to lose that power. This is just another insidious consequence of our antidemocratic system that keeps it from ever reforming.

      • Herrwilson

        But this is the checks and balance system at work. Justice Breyer made reference to h/s civics. I’m sure you know that democracy (aka popularity) in action can, and does on occasion, lead to mob rule.  He mentioned the Japanese interment of WWII. Quite popular in its day. The Senate balances the two year popularist whims of the representative congress.

        • ulTRAX

          Are you saying the EC is proof of checks & balances? Yes, it’s a form of C&Bs but there are some larger questions here you seem to be ignoring. You seem to think that anything that labels itself C&B must be intrinsically desirable. Why? Should C&Bs ever allow for MINORITY rule as happened in election 2000? I’d argue it should NEVER allow this because minority rule undermines the concept of morally legitimate government which according to the Declaration of Independence governments derive their JUST powers from the CONSENT of the governed. It undermines the citizens belief in their own system to deliver morally legitimate government. That and the other defects in our system probably explain why often the vast majority of the voting age population sit out or boycott our elections… at times, in midterm elections, about 60-65% don’t vote… some of them are prohibited. Newt’s “Republican Revolution” of 1994 represented the approval of only about 17% of the voting age population.

          As for protections against “mob rule” this isn’t rocket science. It can obviously be dealt with WITHOUT risking MINORITY rule. See my long discussion below with Greg Camp.

  • David

    Question for Justice Breyer: Do you agree with Santa Clara County vs. Southern Pacific Railroad? Should corporations have only those rights accorded them through legislation?

  • Spqr02021

    Wait, the Tea Party wants to “rewrite” the Constitution? I believe that they want an ammendment to require a balanced budget. You know, like the 27 other ammendments.
    This is why and how NPR is left-biased: the Tea Party is being framed as radical because they want to “rewrite” (not “ammend”) the Constitution. And Tom even suggests in his interview that that’s what they want to do.
    I’m not even a huge Tea Party advocate; this is just intellectual dishonesty, chicanery and spin. Nice.

    • Lilee1

      The Tea Party is not radical–it’s reactionary. It’s insane. It’s brown shirted thugs that are financed and anything but grass roots. Michelle Bachman is an embarrassment. My son came up with a great idea–you have to win the show “Are you smarter than a 5th Grader” to run for President. She would fail. 

      • Spqr02021

        Not to be mean, but this isn’t an argument; it’s a list of insults. Moreover, you haven’t addressed my specific complaint: that the Tea Party is accused of attempting to rewrite the Constitution.
        Don’t get me wrong; I have my issues with the Tea Party but they derive mostly from the fact that I’m a real Libertarian and anyone who opposes gay marriage, etc. is not a Libertarian.
        Lilee1, your post is why the right rightly calls liberals moonbats, drinkers of Koolaid, etc. I don’t care that you hate Michelle Bachman; I don’t like her much either but insulting her has a net negative on the forwarding of discourse. But the Tea Party is not insane, they are not brown shirts and you are slinging mud like a pissed off adolescent. Calling Tea Partiers thugs is the same thing as calling liberals communists, gays immoral, Jews pecuniary or anything else. Divisiveness and stereotyping is what brown shirts did. Keep calling the kettle black or, rather, brown. I can spew puerile insults as well; but you’re giving up any purported intellectual high ground the left has.

        • Michele

          “Insulting [Michelle Bachman] has a net negative on the forwarding of discourse…” You mean the way the Right attacks any liberal leaning American, the President, and even the likes of Warren Buffet (He’s now a Socialist, didn’t you know), is conducive to a healthy and meaningful discourse?  Kool-Aid, anyone?

    • ulTRAX

      The balanced budget amendment sounds responsible but in reality it’s a cynical political trap, an attempt to institutionalize their Two Santa strategy… also known as Starve The Beast. First, if it’s not already obvious, the far Right wants to sabotage all aspects of government that their rich constituents don’t need and this plan was an attempt to accomplish this. It called for irresponsible tax cuts and reckless spending when the GOP was in power leaving the Democrats with the mess to clean up when the political pendulum swung back. As Grover Norquist said, these fiscal restraints would make Democrats govern like Republicans… by which he must have meant our grandfather’s Republicans… the kind long purged from the Party since it adopted fiscal irresponsibility as a political strategy.   

      The balanced budget amendment will set this dynamic in cement… leaving the GOP free to continue to sabotage Democratic program with a certain amount of impunity. How? Since there’s no requirement that fiscally irresponsible tax cuts need more than a majority, the GOP will pass them as they did in the Bush years. And when this creates an unbalanced budget, there won’t be an option to run a deficit as Bush did all his 8 years in office. The only remedy will to cut spending… of course on Democratic programs. The GOP will exempt its own. When the pendulum swings back, the amendment will make it virtually impossible to correct the damage by restoring taxes… even to their previous levels.

    • ulTRAX

      I should add that seeking to amend the Constitution CAN be a form of rewriting it. It depends whether an amendment is negating some section or adding to it. And in a sense even additions are an attempt to rewrite the intent of the authors of the original Constitution or its amendments simply because that new language was never the intent of those before.

  • Novak Joseph

    Respect for THE COURT or any other person or group is all well and good,  but what is one to do when politics rears it’s ugly head.  Politics has put the Justice, and everyone before and since, where they are – on the Court. And on THE COURT is where an agenda is achieved; be it THE NEW DEAL, THE GREAT SOCIETY or WAR ON TERROR.  Agendas can choose our Political leaders and set our morals.

    How do we return the Court to the days when its decisions stood for something – balance, equality and all voices (big and small) being heard?

  • Joseph E Swinehart

    I feel my voice isn’t accurately represented in congress. The two party system really seems to lead to what we have now, an entrenched war. I feel a system like the instant run-off system. I would like to know how you feel about that and if there is anything that can be done with that

    • ulTRAX

      IRV can only help in a few instances… like for a executive position like governor or President.

      The problem with IRV for legislatures is that it may perpetuate the two party system. People will be more free to vote their conscience, but their second choice will probably be for the lesser of the evils most likely to win.

      I know as a Progressive I can vote FOREVER and never get ANY representation for my beliefs. To more accurately measure the “consent of the governed” we need to move to proportional representation. Imagine a reformed Senate based on a national vote. If the Greens or Libertarians each got 10% of the national vote, they’d each get 10% of the seats. Holy crap! Imagine a real marketplace of ideas instead of the current narrow braindead political spectrum. Our system is so dysfunctional that I’d argue BOTH parties have a vested interest in the ignorance of the public. For instance who is trying to educate the public on vital fiscal matters? We can’t even get either party to explain that a balanced “unified budget” is still borrowing a couple hundred billion a year from the federal trust funds.   

  • Hellafiedpapacheese

    If governmental immunity is cart Blanche then when is justified violence reassessed. If a corporation can petition without human responsibility, can I aver to the incapacity of that corp. per acts and measure consistent with, what is now, considered incompetent to suem be sued etc.   Mila de la roca / Zindler

    • ulTRAX

       
      I wonder if we as individuals can incorporate ourselves into LLCs and enjoy that same limited liability protection corporations do. And why not” If corporations can become people, why can’t the opposite be possible?

      • Justsayin

        You sure can.

        • Herrwilson

          I interpreted the decision as setting the playing field as one. Although I cannot see how it is level between a corp and an individual, the rights are the same. This has been accepted in the business circle… forever. It’s the reason an upstart company has a difficult time. I believe most of the majority justices who ruled, were pretty much the “pro business” crowd.

        • ulTRAX

          I’m not referring to an individual creating a sole proprietorship business as an LLC… but incorporating their entire self as an LLC.

      • Michele

        ONLY the opposite is possible.  Human beings create corporations, Corporations do not create human beings. (Even if a corporation was in the business of cloning people – other people would actually do the cloning not a corporation).  Corporations are not living, breathing entities, they exist only on paper.  The Supreme Court is not supreme in all things and is dead wrong on this issue.  They have been wrong before (to which Justice Breyer alluded) and they will be again.

  • Mhuff

    I am embarrassed that the host should speak to a United States Supreme Court Justice as he does.  Why does he have to interrupt.  Didn’t his mother teach him how to behave?  What is worse, in my opinion, is that the producers of the show still have the host in place, because he does this to any and all guests.  Where is common courtesy?
    There are any number of substitute hosts that are more respectful of their guests.  Why don’t you a more skilled and respectful interviewer?

    • Justsayin

      Its a 40 minute show. Guests will blather on and on, if not interrupted.

    • Anonymous

      Scalia is much worse.

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  • Ajn456

    Great show, as usual. The one thing that strikes me after listening to it twice now is that Justice Breyer is, not surprisingly, overtaken by a particularly judicial perspective on democracy. By that I mean that he implores us to, “get involved at a local
    political level and try to persuade people of your position and if you cannot
    persuade them…keep trying.” The fatal flaw in his argument is the assumption that persuasion occurs via rational processes. It works that way only in the judiciary branch. In the other aspects of our democracy, persuasion happens through other mechanisms that have precious little to do with rational thought. The simplest example is a phenomenon called the Mere Exposure effect. There are many studies demonstrating that people tend to prefer stimuli to which they have been exposed more frequently (e.g., faces, brands, etc.). More money = more exposure (think Citizens United). The nature of the argument has nothing to do with it. It is outside the bounds of rational persuasion on which the Justice’s entire premise is based. There are many other psychological mechanisms of persuasion that also occur outside the bounds of rational discussion about philosophical differences. 

    Yet, even if we assume that persuasion happens via a rational process, we are still left with the problem that Plato pointed out all those many years ago. As Polemarchus says to Socrates in The Republic, “But can you persuade us, if we refuse to listen to you.” Glaucon’s (Socrates’ companion) response, “Certainly not.” Republicans in this country are not willing to listen. So we are at a standstill.

  • Ajn456

    The second critique I have of his argument is this. The only
    branch of government that addresses philosophical differences in relatively transparent
    way is the judiciary branch. In every other aspect of our democracy, these
    differences are masked by disingenuous arguments manifestly pertaining to other
    dimensions. We do not currently have honest debate about philosophical
    differences occurring anywhere in our democracy.

     

    Practical example: Suppose Joe has a favorite pizza place
    (X’s pizza) in town that he think makes the best pizza he’s ever tasted. He
    discovers that this place directs a lot of money they earn toward a cause he
    finds objectionable. He decides that he will
    no longer support this establishment. At the town fair the following week, the
    people of the town are asked to vote on the best tasting pizza in town. Joe
    argues that X’s pizza is not the best but another place is. Everyone, even Joe,
    knows X’s pizza is the best on its merits, but Joe will never never admit it
    because he can’t stand the thought of them getting the resources and directing
    them elsewhere. The outside world thinks we are having a conversation about the
    best pizza recipe in town, but in reality Joe and others like him are not really
    talking about that at all. They all have their reasons for hating one pizza
    place or another. That is the very definition of politics. Making a judgment
    that is based on any criteria other than that which is most directly relevant
    to the argument. That is where we are at in this country and that is the
    problem. Most citizens just want to talk openly and honestly about which place
    has the best pizza but most politicians are engaging in a disingenuous
    side-show that permanently derails the pizza conversation. Does Joe seriously
    believe that X’s pizza does not taste good? Joe knows it’s the best, but he
    pretends to like another place for a reason other than the true topic of
    conversation. Thus, until people start being honest in their dialogue, we will
    never have the kind of “persuasive” conversation that Justice Breyer is hoping
    for at the rational level.

    • http://www.dogoodgauge.org The Do Good Gauge

      Why doesn’t Joe just come out and say it.   I quit going to the X Pizza establishment five years ago when I was forced to watch the Orwelling television of Fox News.   It was the taint of conformity which spoiled X’s pizza.     

      For my wife it is root beer floats and my youngest son it is Kraft Macaroni and Cheese.    Each of them have a food they can no longer stomach.    Not because it is bad, but because an episode of flu or fever caused them to vomit the food from their system.  

      Joe may have been sincere in his inability to stomach X’s pizza.

      Ajn456, your on the right track.  I do like your premise of people being honest in dialogue.   Though the truth is relative in many community problems.   Refinement, feedback, and a willingness to listen to another’s point of view is just as important in building honest dialogue.
       

      • Ajn456

        For the same reason Fox or Boehner or any of those don’t just come right out and say, “We are trying to concentrate the entire wealth of the country into the hands of a powerful few (or rather, keep it that way). We will take as much work as you will give us to drive the machinery while we sit back and reap the profit giving you fractions of pennies on the dollar.” They know it would never fly. So they have to masquerade it as something else (e.g., freedom). This is the point. Honest dialogue doesn’t work in politics. The conversation is always obscured by some hidden agenda. 

        • http://www.dogoodgauge.org The Do Good Gauge

          It’s the citizens beliefs concerning me more than the lies of politicians.    Here in the United Status we have the freedom to ignore or participate.     It’s not the politicians I fear, it’s the ignorance of the populace.    Not ignorance as in stupid, but ignorance as in ignoring.    As in sloth and envy.I’ve spent quite a bit of time thinking about this.   In this period I’ve witnessed thousands of individuals exercising their freedom to ignore the possibility of a new technology which encourages civil discourse for social solutions. The links below expand on the thought.

          I Had a Dream

          And then a Nightmare

  • http://www.dogoodgauge.org The Do Good Gauge

    On 4:32am Friday September 23, 2011, I was awakened by dream of democracy.

    p { margin-bottom: 0.08in; }

    I
    have a dream that one day this nation will rise up and live out the
    true meaning of its creed: “We hold these truths to be
    self-evident, that all men are created equal.”

    I
    have a dream that one day on the river banks of Alton the
    sons of factory workers will sit down together at the table of
    brotherhood.

    I
    have a dream that one day even the state of Missouri, a state
    sweltering with the heat of injustice, sweltering with the heat of
    oppression, will be transformed into an oasis of freedom and justice.

    I
    have a dream today!

    I
    have a dream where political posturing is replaced with individuals
    who put their best effort into developing civil solutions for their
    community. I have a dream of a country where majority
    participation can overcome the injustice of a privilege few. A
    dream where Americans understand the solutions to social dilemma is
    in their hands not at the feet of the ruling class.

    I
    have a dream today!

    I
    have a dream where each citizen understands their role in a civil
    society. A role which does not assume ones perspective is the best
    or that attention can be commanded upon demand. In this dream a
    farmer is supported by fellow citizens in expressing a solution to
    the benefit of all. Failure is not an end it this dream, it is a
    beginning, it is an opportunity to refine the thought for a second,
    third, or umteen chance to reach consensus for a civil solution.

    I
    have a dream today!

    A
    dream where technology replaces turpitude with justice, honesty, and
    good moral character. In this technology democracy trumps the bias
    the controlling media. In this dream the merits of an argument
    decides who, where, and when the thought is viewed, not the CEO, not
    the publisher, and not the authority of a privilege few.

    I
    have a dream today!

    And when this happens, when we
    allow freedom ring, when we let it ring from every village and every
    hamlet, from every state and every city, we will be able to speed up
    that day when all of God’s children, black men and white
    men, Jews and Gentiles, Protestants and Catholics, will be able to
    join hands and sing in the words of the old Negro spiritual:

    Free at last! Free
    at last!

    Thank GodAlmighty, we are
    free at last!

     

    • Ray Barrier

      Your thoughts and expression of these thoughts are excellent.  You seem to hit most of points that would make our country a Camelot. I plan to print these to keep.  However, this may surprise you but I am not a fan of MLK.  What he accomplished was really needed.  However, as a person, I have many concerns. “Esse Quam Videri” is the North Carolina state motto.  Essentially it means “To be rather than to seem”.  On his poor person march on Washington, he flew first class there.  He then would gather reporters and visit their tents on the mall for a photo opts then return to his first class hotel to party with his women.  This was so bad that Congress had to lock away this information from the American people, something unheard of before.  He was compared to Gandhi but Gandhi walked with, ate, and slept with the poor.  I had the same problem with Bill Clinton.  If you are going to be bad, be bad and if you are going to be good, be good, but don’t live a fake public life.  “Esse Quam Videri” 

      • http://www.dogoodgauge.org The Do Good Gauge

        Thank you Ray, I credit you for the push to put these thoughts into words.   I take it as a great complement that you are printing the essay as a source of future reference.     Gandhi and Jefferson, we have much in common in admiration of wise men.    

        I think what you are saying, is to be honest.  I agree honesty is of highest virtue to a civil society.

  • Anonymous ;)

    Freedom of speech does not necessarily mean freedom to be anonymous!

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