site banner
zataomm  11mo ago (text post)   5751 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

11
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

How do you square with Griffin?

By saying that Salmon Chase sucked. Griffin's case was not only wrongly decided, I don't even think it was a sincere attempt to apply the law correctly.

In Griffin's case, Chase said that section 3 was not self-executing. But the year before, in Jefferson Davis' treason trial, he said that section 3 prohibited further punishment of confederates beyond disqualification. I think both of these positions are wrong, but more importantly, they flatly contradict each other.

It's also very clear why Chase would have been motivated to make logically inconsistent rulings that both happened to decide issues in favour of former confederates. He was a politician, he wanted to be President, and he wanted the Democratic nomination. Admittedly he had already missed out on the 1868 nomination by the time Griffin's case rolled around, but I don't see any reason to think he had given up on his ambitions.

Sure, you can just throw out precedent as insincere but well once you go down that road a lot of things start looking insincere.

First, there is ambiguity whether in the Davis case Chase ruled in the manner you describe. There is at best hearsay that Chase thought the amendment self executing in the context of Davis and that was never settled (eg there was never an opinion).

Second, it again ignores the distinction (that we see often in US law) between laws that restrict government action (ie providing more freedom to the citizens) and laws that restrict citizen action (ie laws that restrict freedom). We generally give more latitude to the first and less to the former because we generally think government inaction shouldn’t deny properly bestowed rights while at the same time believing that unclear rules shouldn’t prohibit someone from exercising rights they may have. That is, in Davis the 14th amendment could arguably be viewed as a right protecting people whereas in Griffin it is stripping people of the right and therefore it could be self executing in one and not the other.

This provides a legal harmonization of the potential conflict between the two different cases. That is the better approach compared to just saying “Chase is full of shit.” Now it doesn’t mean Chase is right. But given that it is the to my knowledge only relevant near in time case on topic it seems like we should give it a lot of weight.

That seems about the same tack that Bellows took, if a bit better thought out. The analysis in the decision is just:

On this point, I find Griffin's Case 11 F. Cas. 7 (CCCD Va 1869) to be unpersuasive. It is not binding in Maine, does not assess whether states can enforce Section Three without Congressional authorization, and has been discredited. See, eg Anderson, 2023 CO 63, 103; Amicus Br. of Constituional Law Professor Mark A Graber 7-8 (Dec 14, 2023).

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats