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Author Topic: If you could change 4 Supreme Court cases what would you change  (Read 19031 times)
ERM64man
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« Reply #100 on: November 21, 2016, 08:50:24 pm »
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Kelo v. New London (eminent domain is a problem for property rights), Citizens United, King v. Burwell, and Shelby County v. Holder (the VRA's section 5 got overwhelming support from both parties in congress, the court should have exercised judicial restraint and deferred to congress), Korematsu as a fifth decision to reverse, and Buck v. Bell as a sixth. I think Roe v. Wade should be left alone. I am a libertarian-leaning moderate conservative who believes the constitution is a living document. I believe DC v. Heller and McDonald v. Chicago should also be left alone.
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« Reply #101 on: December 26, 2016, 12:26:01 pm »
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1. Bush v. Gore
2. Griswold v. Connecticut (because this would have a domino effect of also overturning Roe and Lawrence)
3. Baker v. Carr
4. Levy v. Louisiana (the worst-written opinion I have ever seen)
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« Reply #102 on: December 26, 2016, 11:10:16 pm »

How is Levy v. Louisiana badly written?  I do think it could have been more narrowly written under the circumstances, but that's more a preference in the result than the writing quality.
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MarkD
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« Reply #103 on: December 27, 2016, 08:16:31 pm »
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My list of all the things that are wrong with the Levy opinion goes on and on and on. Justice Douglas was making a fool of himself and five of his colleagues on the Court. I'm astonished that Chief Justice Warren would allow that "extraordinarily sloppy" opinion to be published as an official opinion of the Court. (That quote is from Prof. Lawrence Lessig, in a Fordham Law Review article published about 20 years ago. That is, Lessig was the one who called the Levy opinion "extraordinarily sloppy.") I could either list everything that's wrong, or I could just describe two or three of the worst things about it.
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« Reply #104 on: December 31, 2016, 04:40:57 pm »
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1. Buckley v. Valeo (+ Citizens United v. FEC)
  • While money is used to finance speech, money isn't speech (plain & simple). Those financial activities shouldn't receive precisely the same constitutional protections as speech itself. After all, campaign funds were used to finance the Watergate burglary. However, the Court's central errors on campaign finance stem from the 1976 Buckley v. Valeo ruling, which denied Congress the right to impose limits on campaign finance, a provision that should be overturned.
2. Jurek v. Texas (*NOT* Gregg v. Georgia)
  • I think the Court came out wrong on the TX death case. At the time, it was assumed that the death penalty would be confined to a very narrow set of cases. But instead it was expanded & gave the prosecutor an advantage in capital cases; experience has shown that the TX statute has played an important role in authorizing so many death sentences in that state.
3. Bush v. Gore
  • Ah, the case (& decision) that turned the White House over to George W. Bush. Basically, the majority decision was misleading (partly b/c of the majority's description of whether the Palm Beach County board changed its rules for handling ballot counting rules) & absent of any coherent rationale supporting the opinion's reliance on the equal protection clause.
4. Crawford v. Marion County Election Board
  • I think this decision on voter ID was correct (from an informational standpoint), but not right, considering the photo-ID requirement is now widely regarded as a means of voter suppression rather than of fraud prevention.
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« Reply #105 on: January 01, 2017, 02:55:45 am »
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1. Buckley v. Valeo (+ Citizens United v. FEC)
  • While money is used to finance speech, money isn't speech (plain & simple). Those financial activities shouldn't receive precisely the same constitutional protections as speech itself. After all, campaign funds were used to finance the Watergate burglary. However, the Court's central errors on campaign finance stem from the 1976 Buckley v. Valeo ruling, which denied Congress the right to impose limits on campaign finance, a provision that should be overturned.

If you want to overturn these decisions by adopting a constitutional amendment that says Congress and the states may regulate campaign finances as much as they wish, then I completely agree. If you want to overturn it by having a "litmus test" for appointments to the Supreme Court - whoever gets appointed must be dedicated to overturning these precedents - like Hilary Clinton and Bernie Sanders have said they want, then I am adamantly opposed. The foremost important quality that should be looked for in an appointee to the Court is objectivity. Lord knows there have not been anyone appointed for that reason in too many decades.

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While money is used to finance speech, money isn't speech (plain & simple). Those financial activities shouldn't receive precisely the same constitutional protections as speech itself.

Is that what the Supreme Court said? That money is speech? I have not read all of the Buckley opinion and none of the Citizens United opinion, so I don't know if that is what they said. The excerpt of Buckley that I have read did not say money is speech, it said money is necessary in order to campaign for most elected offices. I suppose a person could get elected to the state House of Representatives in a few states without any campaign funds, the fact plainly is that most people who run for an office need campaign funds in order to have any hope of getting elected. Yard signs are not printed for free; campaign literature is not printed nor mailed out for free. Newspaper ads, radio ads, and TV ads are not free. When a government limits the amount of money spent on campaigns, it limits the amount of campaigning a candidate can do. That doing so abridges the freedom of political speech -- the most important kind of constitutionally-protected speech that there is -- is pretty obvious to me.
Hypothetical: suppose Congress passes a law, that the POTUS signs, prohibiting all of the churches in the country from spending any more than $X on the construction of chapels. One of the effects of the law is obviously going to be that chapels will have a limited capacity; they can't get any bigger than a certain size. If the size of the chapel is limited, then the size of the congregation is limited too. Wouldn't that abridge the free exercise of religion?
Similar hypothetical: suppose Congress passes a law, that the POTUS signs, limiting the amount of money that any journalistic enterprise may use for the funding of investigative journalism. Wouldn't that be a violation of the freedom of the press?

So I understand why the Supreme Court came to the conclusions that it did in Buckley, Citizens United, and other lesser-known precedents in between which struck down laws that restrict campaign expenditures. I understand and I don't have a complaint how the Supreme Court did its job. But again, I do believe it is time to adopt a constitutional amendment that effectively overturns those decisions. Doing so means we will be making an exception to the principle of freedom of speech. We have the prerogative to do that; the Supreme Court was not obligated to make an exception.
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« Reply #106 on: January 01, 2017, 05:10:46 pm »
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1. Buckley v. Valeo (+ Citizens United v. FEC)
  • While money is used to finance speech, money isn't speech (plain & simple). Those financial activities shouldn't receive precisely the same constitutional protections as speech itself. After all, campaign funds were used to finance the Watergate burglary. However, the Court's central errors on campaign finance stem from the 1976 Buckley v. Valeo ruling, which denied Congress the right to impose limits on campaign finance, a provision that should be overturned.

If you want to overturn these decisions by adopting a constitutional amendment that says Congress and the states may regulate campaign finances as much as they wish, then I completely agree. If you want to overturn it by having a "litmus test" for appointments to the Supreme Court - whoever gets appointed must be dedicated to overturning these precedents - like Hilary Clinton and Bernie Sanders have said they want, then I am adamantly opposed. The foremost important quality that should be looked for in an appointee to the Court is objectivity. Lord knows there have not been anyone appointed for that reason in too many decades.

Quote
While money is used to finance speech, money isn't speech (plain & simple). Those financial activities shouldn't receive precisely the same constitutional protections as speech itself.

Is that what the Supreme Court said? That money is speech? I have not read all of the Buckley opinion and none of the Citizens United opinion, so I don't know if that is what they said. The excerpt of Buckley that I have read did not say money is speech, it said money is necessary in order to campaign for most elected offices. I suppose a person could get elected to the state House of Representatives in a few states without any campaign funds, the fact plainly is that most people who run for an office need campaign funds in order to have any hope of getting elected. Yard signs are not printed for free; campaign literature is not printed nor mailed out for free. Newspaper ads, radio ads, and TV ads are not free. When a government limits the amount of money spent on campaigns, it limits the amount of campaigning a candidate can do. That doing so abridges the freedom of political speech -- the most important kind of constitutionally-protected speech that there is -- is pretty obvious to me.
Hypothetical: suppose Congress passes a law, that the POTUS signs, prohibiting all of the churches in the country from spending any more than $X on the construction of chapels. One of the effects of the law is obviously going to be that chapels will have a limited capacity; they can't get any bigger than a certain size. If the size of the chapel is limited, then the size of the congregation is limited too. Wouldn't that abridge the free exercise of religion?
Similar hypothetical: suppose Congress passes a law, that the POTUS signs, limiting the amount of money that any journalistic enterprise may use for the funding of investigative journalism. Wouldn't that be a violation of the freedom of the press?

So I understand why the Supreme Court came to the conclusions that it did in Buckley, Citizens United, and other lesser-known precedents in between which struck down laws that restrict campaign expenditures. I understand and I don't have a complaint how the Supreme Court did its job. But again, I do believe it is time to adopt a constitutional amendment that effectively overturns those decisions. Doing so means we will be making an exception to the principle of freedom of speech. We have the prerogative to do that; the Supreme Court was not obligated to make an exception.

Well, just b/c the Court said it doesn't mean that the Court hasn't made a disastrous wrong turn in its recent string of campaign finance rulings. The voter is now less important than the man who provides money to the candidate; it's really wrong. For ex., the Court's 2014 decision in McCutcheon v. FEC struck down aggregate contribution limits, allowing rich people to make donations to an unlimited number of federal candidates. Chief Justice Roberts started his controlling opinion w/ a characteristically crisp & stirring opening sentence: "There is no right more basic in our democracy than the right to participate in electing our political leaders." But that's misleading. That first sentence there isn't really about what the case is about. The plaintiff, Shaun McCutcheon, an AL businessman, had made contributions to 15 candidates in the 2012 election. He sued so he could give money to 12 more. None of the candidates in the 2nd group was running in AL. McCutcheon wasn't trying to participate in electing his own leaders. The opinion is all about a case where the issue was electing somebody else's representatives. The opinion has the merit of being faithful to the notion that money is speech & that out-of-district money has the same 1st Amendment protection as in-district money. I think that's an incorrect view of the law myself, but I do think there's a consistency between that opinion & what went before. I'm referring, of course, to the Court's (previously mentioned) earlier campaign finance decisions &, notably, to Citizens United v. FEC, which was a giant step in the wrong direction.

Now, you're correct in saying that the right way to go about overturning the disastrous Citizens United decision, as well as the Buckley v. Valeo decision, is through a constitutional amendment in order to reaffirm what's already in the Constitution: that the right to vote belongs to people, & not corporate, nonprofit, or private entities whose money is drowning out votes by actual U.S. citizens.

<side note> Is it necessarily a bad thing to only appoint Supreme Court justices who'd make it a priority to overturn Citizens United & who understand that corruption in politics means more than just quid pro quo AS LONG AS that person is indeed well qualified to sit on the Supreme Court (based on the person's integrity, professional competence, & judicial temperament)?? </side note>
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« Reply #107 on: January 01, 2017, 10:48:01 pm »
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Well, here's one fallacy to start with.
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Well, just b/c the Court said it doesn't mean that the Court hasn't made a disastrous wrong turn ...

I'm one of the last people to try to suggest that the Supreme Court is always right to say whatever it says. I have been suspicious of the Court since I was 16 years old. Starting when I was 26 years old I began intensely studying how the Supreme Court interprets many (not all) clauses in the Constitution. I found out that the Court has indeed made many wrong decisions, and has often interpreted certain clauses in ways far beyond what the clauses were intended to mean. But I don't think that Buckley or Citizens United are examples of the Court making an error, not in terms of interpreting the Constitution. And I don't think I implied that whatever the Court says is an accurate interpretation of the Constitution; I was asking a previous poster whether the Court has ever actually said that money is speech.

According to you, because of the Court's
Quote
recent string of campaign finance rulings, [t]he voter is now less important than the man who provides money to the candidate.

How so? Because a big campaign contribution works effectively as a bribe? That's a pretty common accusation that gets made by people who support campaign finance reform: financially helping a candidate is the moral equivalent of bribery. It's a popular, and populist, theory. I don't buy into that theory, and I understand why the Court did not do so either. But your theory is what: that when a wealthy businessman like Shaun McCutcheon contributes millions of dollars to various politicians around the country, he is effectively trying to coerce those politicians into doing legislative things that the politicians who received the money did not want to do, and/or their voters do not want them to do? Mr. McCutcheon was trying to financially help many candidates to campaign -- to try to persuade voters to "vote for me (the candidate)." The people who spend the most money do not always win the elections, and I simply do not see how contributions make the contributors more important to the politicians than the voters.

Not a fallacy:
Quote
Chief Justice Roberts started his controlling opinion w/ a characteristically crisp & stirring opening sentence: "There is no right more basic in our democracy than the right to participate in electing our political leaders." But that's misleading. That first sentence there isn't really about what the case is about.

I agree that CJ Roberts said something that is misleading. Voting is the participation in the electing of leaders. Financially contributing to a campaign is not the same thing as voting. It is the same thing as contributing to political debate, though. Those contributions are not as powerful as voting itself, so it was misleading.

Quote
[A] constitutional amendment [would] reaffirm what's already in the Constitution: that the right to vote belongs to people, & not corporate, nonprofit, or private entities whose money is drowning out votes by actual U.S. citizens.

I disagree that adopting a constitutional amendment to say Congress and the states may regulate campaign financing is to adopt something that is already in the Constitution. It would be a first-time ever exception to the principle of Freedom of Speech. I am ready to adopt that. I also disagree that money is drowning out the votes of actual U.S. citizens; see above.

Quote
<side note> Is it necessarily a bad thing to only appoint Supreme Court justices who'd make it a priority to overturn Citizens United & who understand that corruption in politics means more than just quid pro quo AS LONG AS that person is indeed well qualified to sit on the Supreme Court (based on the person's integrity, professional competence, & judicial temperament)?? </side note>

Yes. People should be appointed to the Supreme Court for reasons exactly like the reason why Herbert Hoover crossed party lines and appointed Benjamin Cardozo to the Supreme Court. The Court is supposed to be made up of the nine most highly objective interpreters of law that can be found anywhere in the country, and I do not think it wise to choose someone because that person thinks Citizens United was a disaster. That person is highly unlikely to be objective.
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brucejoel99
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« Reply #108 on: January 02, 2017, 02:57:41 pm »
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Well, here's one fallacy to start with.
Quote
Well, just b/c the Court said it doesn't mean that the Court hasn't made a disastrous wrong turn ...

I'm one of the last people to try to suggest that the Supreme Court is always right to say whatever it says. I have been suspicious of the Court since I was 16 years old. Starting when I was 26 years old I began intensely studying how the Supreme Court interprets many (not all) clauses in the Constitution. I found out that the Court has indeed made many wrong decisions, and has often interpreted certain clauses in ways far beyond what the clauses were intended to mean. But I don't think that Buckley or Citizens United are examples of the Court making an error, not in terms of interpreting the Constitution. And I don't think I implied that whatever the Court says is an accurate interpretation of the Constitution; I was asking a previous poster whether the Court has ever actually said that money is speech.

Oh, well then I apologize for the misunderstanding. But to answer the original question: yes; in 2010, the Court's very controversial ruling in Citizens United v. FEC determined that spending by corporations or unions for a political cause is a form of free speech & is therefore protected under the 1st Amendment. While there's a lot of nuance to this complicated issue, the decision can be summarized as follows: Political spending is a form of protected speech under the 1st Amendment, & the gov't. may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, incl. ads, especially where these ads weren't broadcast. So, Citizens United furthered the legal precedent that, in terms of political spending, corporations = people & money = speech.

Quote
According to you, because of the Court's
Quote
recent string of campaign finance rulings, [t]he voter is now less important than the man who provides money to the candidate.

How so? Because a big campaign contribution works effectively as a bribe? That's a pretty common accusation that gets made by people who support campaign finance reform: financially helping a candidate is the moral equivalent of bribery. It's a popular, and populist, theory. I don't buy into that theory, and I understand why the Court did not do so either. But your theory is what: that when a wealthy businessman like Shaun McCutcheon contributes millions of dollars to various politicians around the country, he is effectively trying to coerce those politicians into doing legislative things that the politicians who received the money did not want to do, and/or their voters do not want them to do? Mr. McCutcheon was trying to financially help many candidates to campaign -- to try to persuade voters to "vote for me (the candidate)." The people who spend the most money do not always win the elections, and I simply do not see how contributions make the contributors more important to the politicians than the voters.

Well, I wouldn't amount to calling the problem legalized bribery, but ultimately, many feel that these decisions made it much easier for the richest Americans to dominate our elections by allowing the super-rich & corporations to effectively influence & manipulate elections.

And under the context of my statement that "the voter is now less important than the man who provides money to the candidate." (McCutcheon v. FEC), I ask you this: who are a legislator's constituents? According to most of us (& to the Oxford American Dictionary) it is "members" of "a body of voters who elect a representative to a legislative body." But the Court wasn't referring to voters, but to donors. According to the Court, McCutcheon is a constituent of every member of Congress, b/c he can afford to buy access & influence from all of them. Most of the voters in his AL congressional district can't. They exercise their influence over just 1 congressman & 2 Senators as most Americans do: by voting. So, under the jurisprudence of the current Court, my statement that "the voter is less important than the man who provides money to the candidate" stands.

Quote
Quote
[A] constitutional amendment [would] reaffirm what's already in the Constitution: that the right to vote belongs to people, & not corporate, nonprofit, or private entities whose money is drowning out votes by actual U.S. citizens.

I disagree that adopting a constitutional amendment to say Congress and the states may regulate campaign financing is to adopt something that is already in the Constitution. It would be a first-time ever exception to the principle of Freedom of Speech. I am ready to adopt that. I also disagree that money is drowning out the votes of actual U.S. citizens; see above.

Well, regardless of whether we agree or not that a constitutional amendment would actually reaffirm what's already in the Constitution, at least we can agree that a new amendment is necessary in order to firmly strike down Citizens United & make it clear in the Constitution that only human beings, not corporate entities or unions, have the right to vote & to contribute to campaigns

Quote
Quote
<side note> Is it necessarily a bad thing to only appoint Supreme Court justices who'd make it a priority to overturn Citizens United & who understand that corruption in politics means more than just quid pro quo AS LONG AS that person is indeed well qualified to sit on the Supreme Court (based on the person's integrity, professional competence, & judicial temperament)?? </side note>

Yes. People should be appointed to the Supreme Court for reasons exactly like the reason why Herbert Hoover crossed party lines and appointed Benjamin Cardozo to the Supreme Court. The Court is supposed to be made up of the nine most highly objective interpreters of law that can be found anywhere in the country, and I do not think it wise to choose someone because that person thinks Citizens United was a disaster. That person is highly unlikely to be objective.

Well, again, at least we can agree that judicial nominees ought to be qualified & recognize that the sole function of the courts is to interpret the Constitution
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« Reply #109 on: January 02, 2017, 06:30:24 pm »
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We're doing well enough to find some areas of agreement, and we know we're headed to the same destination, even if we're not aiming for that destination for same reasons.
I support amending the Constitution to allow any level of government to regulate campaign financing all the government wants to, with no oversight by courts exercising judicial review in the name of the principle of Freedom of Speech. We know we both want that. I support it because I see something very wrong and gross with how expensive it has become to run for office; because the popular, populist suspicion that politicians are being "bought" by big-money interests - even indirectly through an independent campaign expenditure - is eroding public confidence in our republican form of government.

Adopting this amendment is not my most important priority, but whenever it comes time to add my "two cents" to a debate about this, I will continue saying that I support it.
« Last Edit: January 02, 2017, 06:44:02 pm by MarkD »Logged

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« Reply #110 on: January 02, 2017, 08:38:42 pm »
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Well said; agreed
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« Reply #111 on: March 01, 2017, 04:08:35 am »
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Citizens United v. FEC
Shelby County v. Holder
Bush v. Gore
Gregg v. Georgia
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« Reply #112 on: May 04, 2017, 04:32:34 pm »
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Citizens United v. FEC
Shelby County v. Holder
Bush v. Gore
Gregg v. Georgia
^^^ agree w Bush v. Gore. Not sure about Gregg as the crimes the justices reviewed were pretty horrific (at least compared to Furman, handed down 4 yrs earlier). Maybe in place of that, Plessy v. Ferguson. Even though it was rendered moot by Brown, it still remained a stain on the US for 58 years. And, since I have referenced it in contrast with the heroism of the Apollo 13 rescue, Palmer v. Thompson.
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« Reply #113 on: May 09, 2017, 01:04:39 pm »
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Dred, Citizen's United (I say this as a neoliberal, too), Korematsu, Plessy v. Ferguson
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« Reply #114 on: May 09, 2017, 02:37:20 pm »
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Surprised nobody brought up U.S. Term Limits v. Thornton
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« Reply #115 on: May 18, 2017, 10:51:39 pm »
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Not taking into account all decisions that have been overturned or functionally are overturned:

1. Planned Parenthood v. Casey (1992). Abortion law that upheld Roe but narrowed the scope; I'd have tossed out Roe entirely and established a right to life.

2. New Kelo v. London (2005). Eminent domain law; Kennedy decided it 5-4. It has never been stricken, as a result. I think eminent domain should be a highly circumscribed power.

3. Helvering v. Davis (1937). This one upheld Social Security, so I'm not too happy about it. It was part of the rulings that set off the Constitution in Exile. I contend this one seriously overstepped the general welfare clause to the breaking point and was a highly political decision. Not that the Court ruled wrong given how it's supposed to operate as a political actor but I would have preferred a different outcome. 
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« Reply #116 on: Today at 05:59:09 am »
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1. Schenck v. United States. The first amendment is worthless if that's the standard for a "clear and present danger."

2. Buck vs. Bell.

3. Plessy vs. Ferguson. Although it would eventually be overturned by Brown v. Board, it allowed segregation to become so deeply ingrained in American culture that the resulting racism still negatively affects America today.

4. Wickard v. Fillburn
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« Reply #117 on: Today at 02:54:28 pm »
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Surprised nobody brought up U.S. Term Limits v. Thornton


Probably because that case was obviously rightly decided and even most supporters of congressional term limits recognize that that requires a Constitutional Amendment.
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« Reply #118 on: Today at 06:56:58 pm »
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Surprised nobody brought up U.S. Term Limits v. Thornton


Probably because that case was obviously rightly decided and even most supporters of congressional term limits recognize that that requires a Constitutional Amendment.

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