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Amy Coney Barrett speaks on originalism, constitutional interpretations

first_imgDoes an originalist interpretation of the Constitution require judges to ask what James Madison would do in a given situation?Judge Amy Coney Barrett (’97 J.D.) answered this question with a resounding “no” in a lecture hosted Wednesday night by the Notre Dame Club of St. Joseph Valley.“Many people think an originalist approach requires us to ask, ‘What would James Madison do?’ if we were confronted with some type of constitutional problem. … That’s not what originalism means,” she said.Barrett, who currently serves on the U.S. Court of Appeals for the Seventh Circuit, distinguished between two types of originalism: original intent originalism and original public meaning originalism.The former emerged during the 1980s under Justice Earl Warren’s and Justice Warren Burger’s Supreme Courts, Barrett said. It arose as a response to living constitutionalism, a way of interpreting the Constitution that defended controversial decisions such as Miranda vs. Arizona and Roe vs. Wade.“Everyone agreed at the time that decisions like this aren’t textually compelled,” Barrett said. “There’s nothing in the text of the Constitution itself. … At the time, living constitutionalism was a sophisticated justification. Courts ought to interpret with an eye towards current norms, push the country forward with an evolving idea of norms.”Meanwhile, original intent originalism suggested that the Constitution should be interpreted in exactly the same manner as its framers, Barrett said.“Original intent originalism was really an [exercise] of trying to think your way into the minds of the framers and say ‘How would James Madison approach this problem?’ or ‘How would Thomas Jefferson approach this problem?’” she said.However, Barrett said, there are several objections to this framework — there were several framers of the Constitution, and it is not possible to ever fully guess at their thoughts. Furthermore, Barrett said, one might object to this form of originalism on the grounds that the Constitution should not be bound by the “private intentions” of the framers.Original public meaning originalism counters some of these issues by interpreting the Constitution according to what its framers said, rather than thought, Barrett said.“The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today,” she said.This form of originalism distinguishes between interpretation of the Constitution — looking at the meaning of the Constitution — and construction, or putting the Constitution into practice, Barrett said.“Making this distinction between interpretation and construction has had the effect of making originalism a pretty wide tent,” she said. “Now, in its most recent and modern iteration, originalism has attracted people of all different political stripes.”While some might criticize originalism by saying it allows “the dead hand of the past” to influence current interpretations, Barrett said striking down judicial decisions for this reason would be analogous to reversing laws once the people who enacted them died.“Nobody would say that for example, Miranda vs. Arizona is no longer good law simply because the justices who participated in that decision are dead,” she said.Additionally, Barrett said, judges retain the power to reverse decisions when needed.“What makes [judicial decisions] democratically legitimate is … we always have the power to amend the Constitution,” she said. “Judges have the power to reverse judicial decisions when they have the need to.”Barrett also addressed the criticism that originalism created an inflexible interpretation of the Constitution, saying originalism often offered guiding principles, rather than direct answers to individual judicial questions.“In some respects we should look at that [inflexibility] as a good thing. … It’s a floor, we don’t want to go below this,” she said. “We don’t want an entirely flexible Constitution because then we would have no constitutional protection at all.”Tags: Amy Coney Barrett, Notre Dame Club of St. Joseph Valley, originalism, The Constitution, U.S. constitutionlast_img read more

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Google Pay, Play Billing System Faces Antitrust Investigation in India Over Market Dominance

first_imgThe Commission is of the prima facie view that the market for apps facilitating payment through the Unified Payments Interface (UPI) appears to be a distinct relevant market for the assessment of allegations in the present matter, the order said.According to the regulator, it is of “the prima facie view that said conduct of Google amounts to imposition of unfair and discriminatory condition, denial of market access for competing apps of Google Pay and leveraging on the part of Google, in terms of different provisions of Section 4(2) of the Act.”Indian app developers have been voicing concerns over Google’s move to charge 30 per cent commission on paid apps and In-App Purchases (IAPs). Many such developers have said that Google cannot force domestic app developers/ owners to sell digital services by compulsory use of its billing system.- Advertisement – “… the Commission is of the prima facie view that the Opposite Parties have contravened various provisions of Section 4 of the Act… These aspects warrant a detailed investigation,” it said in a 39-page order.The watchdog has ordered a detailed probe by its Director General (DG), which is the investigation arm, for alleged anti-competitive practices with respect to Google Pay.Section 4 of the Competition Act pertains to abuse of dominant market position.- Advertisement – – Advertisement – “We are pleased that the CCI has rejected several claims made by the anonymous complainant,” a Google spokesperson said in a late evening statement.On the remaining concerns, the spokesperson said it was confident that the CCI will find that GPay operates in an extremely competitive environment, and owes its success to its ability to offer consumers a simple and secure payments experience.“Secondly, numerous distribution channels exist for apps on the Android platform; Play is not the only app distribution option for Android. Users choose Google Play because we ensure a safe, secure, and seamless experience.“Play’s billing system is a fundamental part of meeting this user expectation and helps ensure our continued investment in the many important things needed to make developers successful,” the spokesperson added.On the issue of mandatory use of Google Play’s payment system for paid apps and In-App Purchases (IAPs), CCI said it was of the “prima facie view that mandatory use of application store’s payment system for paid apps and in-app purchases restricts the choice available to the app developers to select a payment processing system of their choice especially considering when Google charges a commission of 30 per cent (15 per cent in certain cases) for all app purchases and IAPs.”Considering that Play is the dominant source of downloading apps in the Android OS (90 per cent of the downloads) and its condition requiring use of application store’s payment system for paid apps and IAPs, it appears that Google controls the significant volume of payments processed in this market, the order said.“The resultant market power being enjoyed by Google due to its grip over Android ecosystem apparently resulted in ”allegedly” high commission fee of 30 per cent.” it added.According to the watchdog, it appears that such allegedly high fee would increase the cost of Google’s competitors and thus might affect their competitiveness vis-s-vis Google’s own verticals.“Such a policy of the application store may disadvantage its competitors in the downstream markets, such as music streaming, e-books/ audiobooks etc. If the application developers, in response, raise their subscription fees to offset these costs or remove/ reduce premium/ paid subscription offers for users, it may affect user experience, cost and choice.“Such conditions imposed by app stores limit the ability of the app developers to offer payment processing of their choice to the users for app purchases as well as IAPs… the Commission is of prima facie view that imposition of such condition is unfair in terms of Section 4(2)(a) of the Act,” the regulator said.Various pleas of Google like offering a secured system and necessity of Play’s billing system can be appropriately examined during investigation, it added.Google Pay has been integrated with ”intent flow” methodology whereas other UPI apps can be used through ”collect flow” methodology. Both flows involve the user transitioning from Play to the UPI payment app and back again.“This transition is automated in the intent flow, whereas the same is required to be manually undertaken by users in the collect flow. Based on the above, prima facie it appears that user experience while using Google Pay would be different/ better as compared to using other UPI based apps.“This difference has the potential to shift users towards adopting Google Pay over other UPI based payment apps,” CCI said, adding that it becomes critical to examine whether such difference in the process favoured Google Pay to the disadvantage of other competing apps.The probe has been ordered against five entities, Alphabet, Google, Google Ireland, Google India, and Google India Digital Services.In 2018, CCI had penalised Google for anti-competitive practices in the Indian market for online search.Which is the best TV under Rs. 25,000? We discussed this on Orbital, our weekly technology podcast, which you can subscribe to via Apple Podcasts, Google Podcasts, or RSS, download the episode, or just hit the play button below. The Competition Commission of India (CCI) on Monday ordered a detailed probe against Internet giant Google for alleged unfair business practices with respect to Google Pay as well as Google Play’s payment system.Google Pay is a popular digital payments platform while Google Play is the app store on its Android ecosystem.- Advertisement –last_img read more