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Title: Medical Marijuana Becomes Legal in Ohio; Sets Foundation to Nullify Federal Prohibition in Practice
Source:
Tenth Amendment Center
URL Source: http://blog.tenthamendmentcenter.co ... deral-prohibition-in-practice/
Published: Sep 9, 2016
Author: Mike Maharrey
Post Date: 2016-09-09 21:48:32 by Hondo68
Keywords: marijuana program in Ohio, access medicinal cannabis, Gov. John Kasich signed HB523
Views: 8892
Comments: 60
COLUMBUS, Ohio (Sept. 8, 2016) – Medical marijuana officially became legal in Ohio today, marking the step forward toward nullifying the unconstitutional federal prohibition on cannabis in practice. Rep. Stephen Huffman (R) introduced House Bill 523 (HB523) on April 14. The legislation sets in motion the creation of a limited medical marijuana program in Ohio. There is hereby established a medical marijuana control program in the department of commerce and the state board of pharmacy. The department shall provide for the licensure of medical marijuana cultivators and processors and the licensure of laboratories that test medical marijuana. The board shall provide for the licensure of retail dispensaries and the registration of patients and their caregivers. The department and board shall administer the program. The House passed the bill by a 71-25 margin on May 10. The Senate approved the measure 19-15 on May 25th. The House concurred with Senate amendments 67-29. The new law establishes a limited “seed-to-sale” system for growing, testing and dispensing marijuana. Patients suffering from 20 medical conditions will now be able to access medicinal cannabis with some limitations. The law prohibits smoking marijuana and does not allow for home cultivation of cannabis. The law permits patients to use patches, edibles and vaping products. Although the new law went into effect today, it will take up to two years for the program to get up and running. According to the Columbus Dispatch, “The system will be overseen by Ohio Department of Commerce, Ohio Board of Pharmacy, State Medical Board and an appointed advisory committee. Initial rules will be rolled out later this month, but marijuana is not expected to be available for 18 months to two years.” With passage of the bill, Ohioans for Medical Marijuana dropped its effort to put the issue on the November ballot, citing lack of money and other issues. “This is a joyous day for the thousands of Ohioans who will finally be able to safely access much-needed medicine,” Ohioans for Medical Marijuana spokesman Aaron Marshall said after Gov. John Kasich signed HB523. “We still have much work ahead of us to improve this imperfect law…” According to activists on the ground in Ohio, the success of the program will be determined in large part by the rule-making and implementation process over the next several months. “September 8 is the first step in a long process, and MPP and Ohioans for Medical Marijuana are watching that process closely. Many important policy decisions that will directly affect the success or failure of the system are yet to be made,” a Marijuana Policy Project spokesperson said on the organization’s website. Despite the federal prohibition on marijuana, measures such as HB523 remain perfectly constitutional, and the feds can do little if anything to stop them in practice. EFFECT ON FEDERAL PROHIBITION While somewhat limited, Ohio’s new statute does partially remove one layer of law prohibiting the possession and use of marijuana in the state, but federal prohibition remains in place. Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition. While this Ohio law does not alter federal law, it takes an important step toward nullifying in effect the federal ban. FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By easing the state laws, the Ohio legislature would remove some of the basis for 99 percent of marijuana arrests. Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance. Ohio joins a growing number of states simply ignoring federal prohibition. Colorado, Washington state and Alaska have all legalized both recreational and medical marijuana, and 23 states now allow cannabis for medical use. With nearly half the country legalizing marijuana, the feds find themselves in a position where they simply can’t enforce prohibition any more. The feds need state cooperation to fight the “drug war,” and that has rapidly evaporated in the last few years with state legalization, practically nullifying the ban. “The lesson here is pretty straight forward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said. Poster Comment: John Boehner can quit crying now, they legalized his Medical Marijuana. Can you smell the freedom?
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#1. To: hondo68 (#0)
While this Ohio law does not alter federal law, it takes an important step toward nullifying in effect the federal ban. FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By easing the state laws, the Ohio legislature would remove some of the basis for 99 percent of marijuana arrests. Of course, that is utter bullshit. Possession of any amount remains a federal crime and Ohio can do nothing to change that. Federal law and international treaties are supreme and any state law in conflict with either is null and void. Gonzales v. Raich arose in California via the 9th Circuit Court and was decided in the U.S. Supreme Court. It remains good law and slaps down all state laws inconsistent with federal law. The Supreme Court clearly stated, "The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail." Gonzales v. Raich, 545 U.S. 1, 27-29 (2005) Second, limiting the activity to marijuana possession and cultivation “in accordance with state law” cannot serve to place respondents’ activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is “‘superior to that of the States to provide for the welfare or necessities of their inhabitants,’” however legitimate or dire those necessities may be. Wirtz, 392 U. S., at 196 (quoting Sanitary Dist. of Chicago v. United States, 266 U. S. 405, 426 (1925)). See also 392 U. S., at 195–196; Wickard, 317 U. S., at 124 (“‘[N]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress’”). - - - - - - - - - - [37] We acknowledge that evidence proffered by respondents in this case regarding the effective medical uses for marijuana, if found credible after trial, would cast serious doubt on the accuracy of the findings that require marijuana to be listed in Schedule I. See, e. g., Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 179 (J. Joy, S. Watson, & J. Benson eds. 1999) (recognizing that “[s]cientific data indicate the potential therapeutic value of cannabinoid drugs, primarily THC [Tetrahydrocannabinol] for pain relief, control of nausea and vomiting, and appetite stimulation”); see also Conant v. Walters, 309 F. 3d 629, 640–643 (CA9 2002) (Kozinski, J., concurring) (chronicling medical studies recognizing valid medical uses for marijuana and its derivatives). But the possibility that the drug may be reclassified in the future has no relevance to the question whether Congress now has the power to regulate its production and distribution. Respondents’ submission, if accepted, would place all homegrown medical substances beyond the reach of Congress’ regulatory jurisdiction.
"The federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition." Only federal laws made "in pursuance thereof" (see Art VI) are constitutional -- despite what "armchair lawyer wannabes say".
Federal power is not derived from or diminished by the pronouncements of potheads on the internet. The Court says what the law is.
And their bosses, We The People, give the black robed tyrants the finger in our quest for life, liberty, and the pursuit of happiness. Gov bootlickers on the internet don't make illegal legislation, law.
Gov bootlickers on the internet don't make illegal legislation, law. The Legislature writes laws, the Courts say what the law is, they interpret is. The government makes the laws, and they decide what is constitutional. Dopers on the internet do not. Patriots who give the law the finger and currently in prison is great numbers for all sorts of things, including drugs. Current law does not restrain Federal funding for protections in Ohio.
Government legislators, under constitutional restraints, make the laws, and the SCOTUS issues opinions on constitutionality in contested cases, - opinions that are NOT law, and can be reversed. Nolu hates our Constitution and our republican form of government.
tpaine, Chief Justice of the Imaginary Patriot Supreme Court has spoken. It is obvious that when he speaks, nobody that matters listens. SCOTUS and other courts use the term good law rather frequently. Either they are all wrong, or tpaine is wrong. The tpaine pronouncement also implies that Westlaw and Lexis-Nexis do not know what they are doing or what they are talking about. Precedential court holdings are good law. They remain good law until they are no longer good law. tpaine has an amazing observation that SCOTUS opinions can be reversed. How true. And statute laws can be struck down, repealed, abrogated, or derogated. Any provision of the Constitution, including amendments, may be repealed. There is no law that cannot be changed or repealed. - - - - - - - - - - ABOUT GOOD LAW https://en.wikipedia.org/wiki/Good_law http://guides.libraries.uc.edu/c.php?g=222559&p=1472876 https://lawschool.westlaw.com/marketing/display/RE/10 It is therefore necessary to verify the validity of any case you cite by checking its history and finding other cases that have cited it. Only after doing so can you rest assured that the cases supporting your argument are good law. - - - - - - - - - - GOOD LAW AT SCOTUS Agostini v. Felton, 521 U.S. 203 (1997) - - - - - - - - - - Ring v. Arizona, 536 U.S. 584 (2002) - - - - - - - - - - Lockhart v. Fretwell, 506 U.S. 364 (1993) - - - - - - - - - - Blakely v. Washington, 542 U.S. 296 (2004) - - - - - - - - - - Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993 - - - - - - - - - - Romer v. Evans, 517 U.S. 620 (1996) - - - - - - - - - - F. C. C. v. Fox Television Stations, 556 U.S. 502 (2009) - - - - - - - - - - Hedges v. U.S., 404 F.3d 744 (3d Cir. 2005) - - - - - - - - - - Moses H. Cone Hospital v. Mercury Constr. Corp. 460 U.S. 1 (1983) - - - - - - - - - - Wright v. West, 505 U.S. 277 (1992) - - - - - - - - - - Quill Corp. v. North Dakota, 504 U.S. 298 (1992) - - - - - - - - - - Lewis v. Jeffers, 497 U.S. 764 (1990) - - - - - - - - - -
nolu sham dreams on, --- Government legislators, under constitutional restraints, make the laws, and the SCOTUS issues opinions on constitutionality in contested cases, - opinions that are NOT law, and can be reversed. Nolu hates our Constitution and our republican form of government. Both publications are creatures of our legal 'system', which is totally compromised by socialistic law schools, which you have obviously never attended, -- poor soul. Good law for the big govt establishment, and its bootlickers, like you, nolu. Correct, except for your opinion about the basic principles and amendments to our Constitution. Our fundamental rights CANNOT be repealed. -- Your opinion that they can, -- outs you once again as a pathetic socialistic fascist. Thanks.
All the courts are wrong and we derive our laws from internet crackpots like you. Suuuure we do.
Correct, except for your opinion about the basic principles and amendments to our Constitution. Our fundamental rights CANNOT be repealed. -- Your opinion that they can, -- outs you once again as a pathetic socialistic fascist pawn. Thanks. Your sarcastic, but meaningless, babbling is noted, nolu. -- Now, -- go find some more opinionated spam you can use to avoid rational discourse.
Any part of the Constitution can be repealed. Such action does depend upon the approval of any crackpot on the internet.
Your opinion about the basic principles and amendments to our Constitution is wrong.. Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception. -- Your opinion that they can, -- outs you once again as a pathetic socialistic fascist pawn. Your fiat 'decree' makes you to be that crackpot. Thanks.
There are no inalienable rights. Amdt 5 explicitly provides for capital punishment. When they execute some halfwit like you, they take away your supposedly inalienable right to life, liberty and the pursuit happiness. The only thing you can pursue is a dirt nap. The Constitution is the highest law. The Declaration of Independence has never been a law. Damn, you truly are bone stupid.
Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception. Only halfwit like you would think that the 5th Amendment allows capital punishment except in criminal or treasonous cases, --- where, upon conviction, the accused is deemed to have forfeited their otherwise inalienable rights. Never have claimed the Declaration is law, seeing that is an outline of our principles. You, obviously, have no principles, poor soul.
No constitutional body is empowered to hold a constitutional amendment to be unconstitutional. There are no rights that cannot be taken away. What does inalienable mean to you????? You have CONSTITUTIONAL rights, alienable and inalienable. You can waive your alienable constitutional rights. You cannot waive your inalienable constitutional rights. Black's Law Dictionary, 6th Ed. Inalienable rights. Rights which can never be abridged because they are so fundamental. Black's Law Dictionary, 6th Ed. Law Dictionary, 2nd Ed., Steven H. Gifis When the government takes away your rights, or holds them forfeit, you neither transfer them nor surrender them. They take them. In capital punishment, they take your life. As you document so well, it does not mean rights that can only be taken away by God. So, there are criminal convictions and otherwise inalienable rights. News flash. Military trials and tribunals are criminal proceedings. In a court-martial, you do not get a jury of your peers, you get a panel appointed by the convening authority. It does not take a unanimous decision to throw your ass in prison, taking away your otherwise inalienable right to liberty and the pursuit of happiness, a two-thirds majority does just fine. In a summary court-martial, you normally do not have a right to a detained attorney. A summary court-martial is a one-officer court, and he may, or may not, be a lawyer. If you are a USN sailor on a ship at sea, the Captain at an Article 15 proceeding may impose a reduction in grade, forfeiture of pay, or restriction on liberty. He can even award bread and water. You have no right to demand trial. Your otherwise inalienable rights are subject to hazard, without a lawyer and without a trial. The CO says you did whatever and awards punishment. And then there is conscription. "Greetings, etc." may be considered an impingement on one's liberty. Refusal to serve may result in prison time and other undesirable things, otherwise inalienable rights notwithstanding. The contention that the people are prohibited from amending the laws any which way they determine that they want, is the ultimate douchebaggery. The people may adopt any laws and government of their choosing. The people need not obtain prior consent of internet wingnuts. The only current limitation set by Article 5 is "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Article 5 can be admended to remove that one restriction if the people so choose. The largest mass execution in the United States followed a military tribunal of indians. Thirty-eight were executed at one time by hanging. Text of Order to General Sibley, St. Paul Minnesota: The other condemned prisoners you will hold subject to further orders, taking care that they neither escape, nor are subjected to any unlawful violence. Abraham Lincoln, President of the United States" The hanging, following trials which condemned over three hundred participants in the 1862 Dakota Conflict, stands as the largest mass execution in American history. Number 2 is the half-dozen hanged in an elevator shaft at Leavenworth during WW2. On September 28, 1862, Colonel Sibley appointed a five-member military commission to "try summarily" Dakota and mixed-bloods for "murder and other outrages" committed against Americans. Whether Sibley had authority to appoint such a commission is a matter of substantial dispute. The commission was convened immediately, meeting in La Bathe's log kitchen near Camp Release. Sixteen trials were conducted the first day... in the six weeks that followed, the military court would try a total of 393 cases, convicting 323 and sentencing 303 to death by hanging. The commission heard nearly forty cases on November 3, the last day it met. In April, 1863, Congress enacted a law providing for the forcible removal from Minnesota of all Sioux. On March 22, 1866, President Andrew Johnson ordered the release of the 177 surviving prisoners. Case 238: Ta-hoh-pe-wa-kan [The complete record of testimony follows.] Louis LaBelle being sworn says-- The prisoner was among those who were on horseback in the battle referred to in case 236-- He had a horse and was up on it when I saw him, belonging to the soldiers. (See case No. 236) [Ta-hoh-pe-wa-kan was found guilty and was sentenced to be hanged.]
Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception. Only halfwit like you would think that the 5th Amendment allows capital punishment except in criminal or cases of treason. --- where, upon conviction, the accused is deemed to have forfeited their otherwise inalienable rights. I never have claimed the Declaration is law, seeing that is an outline of our principles. You, obviously, have no principles, poor soul. True enough, -- congrats on your temporary sanity. There you go again, hyping the fact that criminal acts can lead to a forfit of rights. Only halfwit like you would think that the 5th Amendment allows capital punishment except in criminal or treasonous cases, --- where, upon conviction, the accused is deemed to have forfeited their otherwise inalienable rights. So you admit that, legalisticly, there are inalienable rights.. Thanks for conceding my point. I'm agnostic. I've never proposed that any 'God' has anything to do with our rights. -- You're playing the worse kind of word games. -- PLEASE STOP I'm well aware of the temporary suspension of rights while in the military, having served three years. I'd bet you haven't served, and would not, --- even if the draft was reinstated because of a national emergency. Not true. As you admitted just above, we all have fundamental inalienable rights that cannot be amended away. You just can't stop spamming this forum, can you? YOUR LAST PARAGRAPH ABOVE IS SHEER SPAM.. You are one sick puppy. I pity you. Get help.
You have CONSTITUTIONAL rights, alienable and inalienable. You can waive your alienable constitutional rights. You cannot waive your inalienable constitutional rights. Black's Law Dictionary, 6th Ed. Inalienable rights. Rights which can never be abridged because they are so fundamental. Black's Law Dictionary, 6th Ed. Law Dictionary, 2nd Ed., Steven H. Gifis When the government takes away your rights, or holds them forfeit, you neither transfer them nor surrender them. They take them. In capital punishment, they take your life. As you document so well, it does not mean rights that can only be taken away by God. [tpaine] So you admit that, legalisticly, there are inalienable rights.. [tpaine] Thanks for conceding my point. There are alienable CONSTITUTIONAL rights, and there are inalienable CONSTITUTIONAL rights as defined above. They have nothing to do with your mythical inalienable GOD-GIVEN rights which cannot be taken away (life, liberty, and the pursuit of happiness). Those do not exist in U.S. law. You can get a passport and seek out an ecclesiastical court. If your point is that you have inalienable CONSTITUTIONAL rights as defined in legal dictionaries, I provided you with the definition to drag you out of ancient times. As for the government taking away your rights, you admit that it does not mean the government cannot take them away, it means that you cannot trasnfer them or give them away. You have given a never ending invocation of the Declaration of Independence. You know, the one that goes, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." Your whole insane argument that a Constitutional Amendment can be struck down as unconstitutional must, of necessity, appeal to some higher power than the Constitution. What is it? Your Imaginary Patriot Court where you sit as Chief Justice? [tpaine #24] Correct, except for your opinion about the basic principles and amendments to our Constitution. Our fundamental rights CANNOT be repealed. Repeated ad nauseam, e.g., [tpaine #37] Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception. Your version of inalienable is bullshit, pulled out of your ass. Identify some of these rights that cannot be repealed by Constitutional amendment. If a Constitutional Amendment may be declared null and void, who has the lawful power to declare a provision of the Constitution null and void? What is your source of higher law? In a court-martial, you do not get a jury of your peers, you get a panel appointed by the convening authority. It does not take a unanimous decision to throw your ass in prison, taking away your otherwise inalienable right to liberty and the pursuit of happiness, a two-thirds majority does just fine. In a summary court-martial, you normally do not have a right to a detained attorney. A summary court-martial is a one-officer court, and he may, or may not, be a lawyer. If you are a USN sailor on a ship at sea, the Captain at an Article 15 proceeding may impose a reduction in grade, forfeiture of pay, or restriction on liberty. He can even award bread and water. You have no right to demand trial. Your otherwise inalienable rights are subject to hazard, without a lawyer and without a trial. The CO says you did whatever and awards punishment. And then there is conscription. "Greetings, etc." may be considered an impingement on one's liberty. Refusal to serve may result in prison time and other undesirable things, otherwise inalienable rights notwithstanding. I'm well aware of the temporary suspension of rights while in the military, having served three years. I'd bet you haven't served, and would not, --- even if the draft was reinstated because of a national emergency. There is no temporary suspension of rights while in the military.Try reading the Constitution instead of pulling this shit out out your ass, you ignorant shithead. I am not surprised that you were in the service and don't know shit about military law and military rights. There is no constitutional right to counsel at a Summary Court-Martial under either the Sixth Amendment right to counsel, or the Fifth Amendment due process clause. Of course, there is no right to counsel at an Article 15 proceeding either. Such right does not exist, and your imaginary right is not suspended. You are truly one ignorant whack job. U.S. Const., Art. 1, Sec. 8, Cl. 13. U.S. Const., Art. 1, Sec. 8, Cl. 18. The U.C.M.J is federal statute, found at 10 U.S.C. §§ 801-946. The Manual for Courts-Martial has the force of law and is issued by the President pursuant to 10 U.S.C. 836, UCMJ Art. 36, President may prescribe rules. What an ignorant fuckwit you are. Apparently, the only hashmark you had was on your skivvies. nolu chan, USN (Ret.)
Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception. So you admit that, legalisticly, there are inalienable rights.. Thanks for conceding my point. I'm agnostic. I've never proposed that any 'God' has anything to do with our rights. -- You're playing the worse kind of word games. -- And your increasingly foul mouthed response makes it evident that you know, but that's the best you can do.. How weird, as you did, just above. Getting rattled, aintcha? We the people will just ignore such amendments, as we did booze prohibition. I'm well aware of the temporary suspension of rights while in the military, having served three years. I'd bet you haven't served, and would not, --- even if the draft was reinstated because of a national emergency. Very well, you claim to have retired from the navy. No doubt as an officer, correct? -- That's what most of you phonies claim, so forgive my doubt. -- Your lack of any sort of honor, or respect for constitutional law, leads me to this conclusion..
According to the the wingnut tpaine who is incapable of identifying who is empowered to declare a constitutional amendment unconstitutional. Your idiotic version of inalienable rights has been repeatedly cited to the Declaration of Independence for years. That is the one that goes, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." You are free to doubt that the Creator who grants those rights exists. Constitutional rights were not granted by "the Creator." You are unable to rationally discuss CONSTITUTIONAL rights. We the people will just ignore such amendments, as we did booze prohibition. Efforts to have the 18th Amendment declared unconstitutional FAILED spectacularly. Another amendment was required to repeal it. The wingnut fantasy that a part of the Constitution is null and void because people choose to violate it is nonsense. In a court-martial, you do not get a jury of your peers, you get a panel appointed by the convening authority. It does not take a unanimous decision to throw your ass in prison, taking away your otherwise inalienable right to liberty and the pursuit of happiness, a two-thirds majority does just fine. In a summary court-martial, you normally do not have a right to a detained attorney. A summary court-martial is a one-officer court, and he may, or may not, be a lawyer. If you are a USN sailor on a ship at sea, the Captain at an Article 15 proceeding may impose a reduction in grade, forfeiture of pay, or restriction on liberty. He can even award bread and water. You have no right to demand trial. Your otherwise inalienable rights are subject to hazard, without a lawyer and without a trial. The CO says you did whatever and awards punishment. And then there is conscription. "Greetings, etc." may be considered an impingement on one's liberty. Refusal to serve may result in prison time and other undesirable things, otherwise inalienable rights notwithstanding. [tpaine #49] I'm well aware of the temporary suspension of rights while in the military, having served three years. I'd bet you haven't served, and would not, --- even if the draft was reinstated because of a national emergency. You are a fucking idiot. There is no temporary suspension. As with all other claims, your speculative imaginary bullshit is as inaccurate as your other lightweight bullshit. You have proven again and again that you are too dumb, stupid and ignorant to comprehend the Constitution. But you never stop displaying your ignorance for all to see. I never get rattled from playing with my favorite pet plant. Out of kindness, I water you from time to time. A unanimous U.S. Supreme Court stated: Ex Parte Milligan, 71 U.S. 2, 120-21 (1866). There is the tpaine Court of Imaginary Bullshit, and there is the U.S. Supreme Court. The U.S. Supreme Court says that a Summary Court-Martial can take away rights of liberty and property, and no lawyer need be provided. The U.S. Supreme Court further says that the presiding officer acts as judge, factfinder, prosecutor, and defense counsel. There is no such thing as the constitutional rights of service members being "temporarily suspended" while in the military. That is just more of your abysmally uninformed, ignorant bullshit. Your juvenile belief that constitutional amendments may be declared unconstitutional affirms that you either in your second childhood, or that you never escaped the first. U.S. Supreme Court Middendorf v. Henry, 425 U.S. 25 (1976) Syllabus at 425 U.S. 26: 1. There is no Sixth Amendment right to counsel in a summary court-martial.... 2. Nor does the Due Process Clause of the Fifth Amendment require that counsel be provided the accused in a summary court-martial proceeding. Opinion of the Court at 425 U.S. 31-32: Opinion of the Court at 425 U.S. 32: Id. at 33-34: In Ex parte Quirin, 317 U. S. 1, 317 U. S. 40 (1942), it was said that Id. at 425 U. S. 43: However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 556 (1974). Id. at 425 U. S. 48: Justice Powell, concurring at 425 U.S. 49-51: I recognize, of course, that one's constitutional rights are not surrendered upon entering the Armed Services. But the rights are applied, as this Court often has held, in light of the "unique military exigencies" that necessarily govern many aspects of military service. See Parker v. Levy, supra, at 417 U. S. 758. In recognition of this, since the founding of the Republic, Congress has enacted special legislation applicable only to the Armed Services, [Footnote 2/2] including the current provisions in the Uniform Code of 425 U. S. 51 Military Justice for summary courts-martial. Art. 16(3), UCMJ, 10 U.S.C. § 816(3). The Summary Court-Martial may take away one's right to liberty and property. Pursuant to the Constitution, no counsel is required. The presiding officer need not be an attorney. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. And the rights to liberty and property get aliened.
#56. To: nolu chan, mostly spam again, --- WILL HE EVER STOP? (#55)
Our fundamental rights CANNOT be repealed. They are inalienable.. I'm agnostic. I've never proposed that any 'God' has anything to do with our rights. We agree We the people are the both the source and the power. Congrats on admitting that such efforts were made, and are constitutional in themselves. Very well, you claim to have retired from the navy. No doubt as an officer, correct? -- That's what most of you phonies claim, so forgive my doubt. -- Your lack of any sort of honor, or respect for constitutional law, leads me to this conclusion. Getting rattled, aintcha? The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false.... Ex Parte Milligan, 71 U.S. 2, 120-21 (1866). Thanks for making my point… -- Our basic human rights CANNOT be suspended/amended away by 'majority rule', no matter what the supposed necessity. Call it what you will, but service members are governed by the UCMJ, not by our Constitutional rule of law. Never had that belief. I believe that amendments attempting to infringe on our basic human rights are unconstitutional BEFORE THEY ARE ADOPTED.. Ho hum, --- do you ever stop the SPAM????
Top • Page Up • Full Thread • Page Down • Bottom/LatestOf course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
First, the fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA “have a useful and legitimate medical purpose.” 21 U. S. C. § 801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug, [37] the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. See §§ 821–830; 21 CFR § 1301 et seq. (2004). Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United States v. Rutherford, 442 U. S. 544 (1979). Accordingly, the mere fact that marijuana—like virtually every other controlled substance regulated by the CSA—is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA. Nor can it serve as an “objective marke[r]” or “objective facto[r]” to arbitrarily narrow the relevant class as the dissenters suggest, post, at 47 (opinion of O’Connor, J.); post, at 68 (opinion of Thomas, J.). More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the “‘outer limits’ of Congress’ Commerce Clause authority,” post, at 42 (opinion of O’Connor, J.), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those “‘outer limits,’” whether or not a State elects to authorize or even regulate such use. Justice Thomas’ separate dissent suffers from the same sweeping implications. That is, the dissenters’ rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the “‘outer limits’” of Congress’ Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but “visible to the naked eye,” Lopez, 514 U. S., at 563, under any commonsense appraisal of the probable consequences of such an openended exemption.
#5. To: nolu spam, misterwhite, Y'ALL (#1)
(Edited)
Of course, that is utter bullshit. Possession of any amount remains a federal crime and Ohio can do nothing to change that. Federal law and international treaties are supreme --
#8. To: tpaine, misterwhite (#5)
Only federal laws made "in pursuance thereof" (see Art VI) are constitutional -- despite what "armchair lawyer wannabes say".
#10. To: nolu chan, tpaine, misterwhite, Hank Rearden, enumerated powers, *Bill of Rights-Constitution* (#8)
Federal power is not derived from or diminished by the pronouncements of potheads on the internet.
#12. To: hondo68 (#10)
And their bosses, We The People, give the black robed tyrants the finger in our quest for life, liberty, and the pursuit of happiness.
#13. To: nolu sham dreams on, --- (#12)
(Edited)
--- "The government makes the laws, and they decide what is constitutional."
#15. To: tpaine (#13)
SCOTUS issues opinions on constitutionality in contested cases, - opinions that are NOT law, and can be reversed.
Good law is the concept in jurisprudence that a legal decision is still valid. That is, that a decision has not been overturned (during an appeal) or otherwise rendered obsolete (such as by a change in the underlying law)
Remember, that you need to take into account the jurisdiction of your case and the cases citing your case in order to determine if your case is still good law.
Case Overview uses signals to indicate what kind of treatment a case has received and whether it can be relied on as good law.
A decision from an appellate court is binding on courts beneath it (inferior courts) when those courts decide similar issues. But your case law research does not end simply because you've found an appellate court case that appears to support your argument. Even a case directly on point may lose its authority if
School Dist. of Grand Rapids v. Ball, 473 U.S. 373, addressing a "Shared Time" program, are no longer good law. Pp. 215-236. (a) Under Rufo, supra, at 384, Rule 60(b)(5) — which states that, "upon such terms … whether the Court's later Establishment Clause cases have so undermined Aguilar that it is no longer good law. Pp. 215-218. (b) To answer that question, it is necessary to understand the rationale upon which … ask that we explicitly recognize what our more recent cases already dictate: Aguilar is no longer good law.
… system in Walton v. Arizona, 497 U.S. 639 (1990), and had stated in Apprendi that Walton remained good law.
… argues that Collins v. Lockhart, 754 F.2d 258 (CA8), cert. denied, 474 U.S. 1013 (1985), is still good law despite our decision in Lowenfield v. Phelps, 484 U.S. 231 (1988), and urges us to decide this question … certiorari," we decide that question based on the Eighth Circuit's view that Collins is no longer good law. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 465-466, n. 10 (1992).
… this Court holding that a sentencing judge may consider virtually any reliable information still good law when juries, not judges, are required to determine the matter? See, e.g., United States v. Watts …
… questions: first, whether the rule of Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), remains good law after the enactment of the Federal Rules of Evidence; and second, if Frye remains valid, whether …
… held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). To the extent it held that the groups designated … that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law.
… indecent or would not be acted upon." It explicitly ruled that "any such interpretation is no longer good law." Ibid., ¶ 12. It "clarif[ied] . . . that the mere fact that specific words or phrases are not sustained … of inconsistent "prior Commission and staff action" and explicitly disavowing them as "no longer good law." Golden Globes Order, 19 FCC Rcd., at 4980, ¶ 12. To be sure, the (superfluous) explanation in … in light of the Golden Globes Order's specific declaration that its prior rulings were no longer good law, 19 FCC Rcd., at 4980, ¶ 12, and the Remand Order's disavowal of those staff rulings and Commission …
… decisions in Irwin, Brockamp, and Beggerly, we hold that our prior holding in Bovell is no longer good law.
More importantly, however, the decision in Idlewild cannot be good law after Coopers, supra.
Virginia's rule is reasonable, and has been accepted as good law against the backdrop of a general state sufficiency standard no less stringent than the Jackson … is the thief who took them, and it should come as no surprise that the rule had been accepted as good law against the backdrop of a general state sufficiency standard no less stringent than that of Jackson …
… rule in this area and the doctrine and principles of stare decisis indicate that the rule remains good law. Pp. 314-318. (d) The underlying issue here is one that Congress may be better qualified to resolve … conclusion that this evolution indicates that the Commerce Clause ruling of Bellas Hess is no longer good law.
… perverse for this Court to rely upon a Court of Appeals decision for a proposition that is no longer good law within the Circuit.
#24. To: nolu chan, outs himself, -- again. (#15)
-- "The government makes the laws, and they decide what is constitutional."
Tpaine, Chief Justice of the Imaginary Patriot Supreme Court has spoken. It is obvious that when he speaks, nobody that matters listens. --- SCOTUS and other courts use the term good law rather frequently. Either they are all wrong, or tpaine is wrong. --- The tpaine pronouncement also implies that Westlaw and Lexis- Nexis do not know what they are doing or what they are talking about.
Precedential court holdings are good law. They remain good law until they are no longer good law.
tpaine has an amazing observation that SCOTUS opinions can be reversed. How true. And statute laws can be struck down, repealed, abrogated, or derogated. Any provision of the Constitution, including amendments, may be repealed. There is no law that cannot be changed or repealed.
#26. To: tpaine (#24)
Good law for the big govt establishment, and its bootlickers, like you, nolu.
#28. To: nolu chan (#26)
tpaine has an amazing observation that SCOTUS opinions can be reversed. How true. And statute laws can be struck down, repealed, abrogated, or derogated. Any provision of the Constitution, including amendments, may be repealed. There is no law that cannot be changed or repealed.
All the courts are wrong and we derive our laws from internet crackpots like you. Suuuure we do.
#30. To: tpaine (#28)
Our fundamental rights CANNOT be repealed.
#32. To: nolu chan (#30)
Any part of the Constitution can be repealed. Such action does depend upon the approval of any crackpot on the internet.
#34. To: tpaine (#32)
Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception.
#37. To: nolu chan, declares he has no principles. (#34)
There are no inalienable rights. Amdt 5 explicitly provides for capital punishment.
When they execute some halfwit like you, they take away your supposedly inalienable right to life, liberty and the pursuit happiness. The only thing you can pursue is a dirt nap. --- The Constitution is the highest law. The Declaration of Independence has never been a law.
#42. To: tpaine (#37)
Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception.
Only halfwit like you would think that the 5th Amendment allows capital punishment except in criminal or treasonous cases, --- where, upon conviction, the accused is deemed to have forfeited their otherwise inalienable rights.
Alienable constitutional rights. Right to a trial by jury, to counsel, and not to incriminate one's self, and related matters are "alienable constitutional rights" which may be waived whenever assertable. Weck v. District Court of Second Judicial Dist., 158 Colo. 521, 408 P.2d 987, 990. See also inalienable rights.
Unalienable. Inalienable; incapable of being aliened, that is, sold and transferred.
INALIENABLE RIGHTS fundamental rights, including the right to practice religion, freedom of speech, due process, and equal protection of the laws, that cannot be transferred to another nor surrendered except by the person possessing them.
upon conviction, the accused is deemed to have forfeited their otherwise inalienable rights.
"Ordered that of the Indians and Half-breeds sentenced to be hanged by the military commission, composed of Colonel Crooks, Lt. Colonel Marshall, Captain Grant, Captain Bailey, and Lieutenant Olin, and lately sitting in Minnesota, you cause to be executed on Friday the nineteenth day of December, instant, the following names, to wit ...
Prisoner states-- I went with a party which pick up things which the whites left behind.
#43. To: nolu chan (#42)
There are no inalienable rights. Amdt 5 explicitly provides for capital punishment.
When they execute some halfwit like you, they take away your supposedly inalienable right to life, liberty and the pursuit happiness. The only thing you can pursue is a dirt nap. --- The Constitution is the highest law. The Declaration of Independence has never been a law.
No constitutional body is empowered to hold a constitutional amendment to be unconstitutional.
There are no rights that cannot be taken away.
What does inalienable mean to you???? -- You have CONSTITUTIONAL rights, alienable and inalienable. You can waive your alienable constitutional rights. You cannot waive your inalienable constitutional rights. --- Alienable constitutional rights. Right to a trial by jury, to counsel, and not to incriminate one's self, and related matters are "alienable constitutional rights" which may be waived whenever assertable. Weck v. District Court of Second Judicial Dist., 158 Colo. 521, 408 P.2d 987, 990. See also inalienable rights. Black's Law Dictionary, 6th Ed. ----- Unalienable. Inalienable; incapable of being aliened, that is, sold and transferred. --- Inalienable rights. Rights which can never be abridged because they are so fundamental. ---- Black's Law Dictionary, 6th Ed. --- INALIENABLE RIGHTS fundamental rights, including the right to practice religion, freedom of speech, due process, and equal protection of the laws, that cannot be transferred to another nor surrendered except by the person possessing them. Law Dictionary, 2nd Ed., Steven H. Gifis
When the government takes away your rights, or holds them forfeit, you neither transfer them nor surrender them. They take them. In capital punishment, they take your life.
As you document so well, it does not mean rights that can only be taken away by God.
Upon conviction, the accused is deemed to have forfeited their otherwise inalienable rights. So, there are criminal convictions and otherwise inalienable rights. --- News flash. Military trials and tribunals are criminal proceedings. --- In a court-martial, you do not get a jury of your peers, you get a panel appointed by the convening authority. It does not take a unanimous decision to throw your ass in prison, taking away your otherwise inalienable right to liberty and the pursuit of happiness, a two-thirds majority does just fine.-- - In a summary court-martial, you normally do not have a right to a detained attorney. A summary court-martial is a one- officer court, and he may, or may not, be a lawyer. --- If you are a USN sailor on a ship at sea, the Captain at an Article 15 proceeding may impose a reduction in grade, forfeiture of pay, or restriction on liberty. He can even award bread and water. You have no right to demand trial. Your otherwise inalienable rights are subject to hazard, without a lawyer and without a trial. The CO says you did whatever and awards punishment. --- And then there is conscription. "Greetings, etc." may be considered an impingement on one's liberty. Refusal to serve may result in prison time and other undesirable things, otherwise inalienable rights notwithstanding.
The contention that the people are prohibited from amending the laws any which way they determine that they want, is the ultimate douchebaggery.
The people may adopt any laws and government of their choosing. The people need not obtain prior consent of internet wingnuts. --- The only current limitation set by Article 5 is "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Article 5 can be admended to remove that one restriction if the people so choose. ---- The largest mass execution in the United States followed a military tribunal of indians. Thirty-eight were executed at one time by hanging. --- Text of Order to General Sibley, St. Paul Minnesota: --- I "Ordered that of the Indians and Half-breeds sentenced to be hanged by the military commission, composed of Colonel Crooks, Lt. Colonel Marshall, Captain Grant, Captain Bailey, and Lieutenant Olin, and lately sitting in Minnesota, you cause to be executed on Friday the nineteenth day of December, instant, the following names, to wit ... The other condemned prisoners you will hold subject to further orders, taking care that they neither escape, nor are subjected to any unlawful violence. ---- Abraham Lincoln, President of the United States" --- The hanging, following trials which condemned over three hundred participants in the 1862 Dakota Conflict, stands as the largest mass execution in American history. Number 2 is the half-dozen hanged in an elevator shaft at Leavenworth during WW2. ----- On September 28, 1862, Colonel Sibley appointed a five-member military commission to "try summarily" Dakota and mixed- bloods for "murder and other outrages" committed against Americans. Whether Sibley had authority to appoint such a commission is a matter of substantial dispute. The commission was convened immediately, meeting in La Bathe's log kitchen near Camp Release. Sixteen trials were conducted the first day... in the six weeks that followed, the military court would try a total of 393 cases, convicting 323 and sentencing 303 to death by hanging. ----- The commission heard nearly forty cases on November 3, the last day it met. ----- In April, 1863, Congress enacted a law providing for the forcible removal from Minnesota of all Sioux. ---- On March 22, 1866, President Andrew Johnson ordered the release of the 177 surviving prisoners. ---- Case 238: Ta-hoh-pe-wa-kan --- [The complete record of testimony follows.] ---- Prisoner states-- I went with a party which pick up things which the whites left behind. ---- Louis LaBelle being sworn says-- The prisoner was among those who were on horseback in the battle referred to in case 236-- He had a horse and was up on it when I saw him, belonging to the soldiers. (See case No. 236) ---- [Ta-hoh-pe-wa-kan was found guilty and was sentenced to be hanged.]
#48. To: tpaine (#43)
What does inalienable mean to you?????
Alienable constitutional rights. Right to a trial by jury, to counsel, and not to incriminate one's self, and related matters are "alienable constitutional rights" which may be waived whenever assertable. Weck v. District Court of Second Judicial Dist., 158 Colo. 521, 408 P.2d 987, 990. See also inalienable rights.
Unalienable. Inalienable; incapable of being aliened, that is, sold and transferred.
INALIENABLE RIGHTS fundamental rights, including the right to practice religion, freedom of speech, due process, and equal protection of the laws, that cannot be transferred to another nor surrendered except by the person possessing them.
When the government takes away your rights, or holds them forfeit, you neither transfer them nor surrender them. They take them. In capital punishment, they take your life.
I'm agnostic. I've never proposed that any 'God' has anything to do with our rights. -- You're playing the worse kind of word games. -- PLEASE STOP
[nolu chan #15] Any provision of the Constitution, including amendments, may be repealed. There is no law that cannot be changed or repealed.
News flash. Military trials and tribunals are criminal proceedings.
The Congress shall have power ... To make rules for the government and regulation of the land and naval forces.
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
I'd bet you haven't served, and would not, --- even if the draft was reinstated because of a national emergency.
#49. To: nolu chan (#48)
Black's Law Dictionary, 6th Ed. --- INALIENABLE RIGHTS fundamental rights, including the right to practice religion, freedom of speech, due process, and equal protection of the laws, that cannot be transferred to another nor surrendered except by the person possessing them. Law Dictionary, 2nd Ed., Steven H. Gifis
You have given a never ending invocation of the Declaration of Independence. You know, the one that goes, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." ---- Your whole insane argument that a Constitutional Amendment can be struck down as unconstitutional must, of necessity, appeal to some higher power than the Constitution.
Your version of inalienable is bullshit, pulled out of your ass. Identify some of these rights that cannot be repealed by Constitutional amendment.
If a Constitutional Amendment may be declared null and void, who has the lawful power to declare a provision of the Constitution null and void? What is your source of higher law?
Military trials and tribunals are criminal proceedings. In a court-martial, you do not get a jury of your peers, you get a panel appointed by the convening authority. It does not take a unanimous decision to throw your ass in prison, taking away your otherwise inalienable right to liberty and the pursuit of happiness, a two-thirds majority does just fine. --- In a summary court-martial, you normally do not have a right to a detained attorney. A summary court-martial is a one-officer court, and he may, or may not, be a lawyer.--- If you are a USN sailor on a ship at sea, the Captain at an Article 15 proceeding may impose a reduction in grade, forfeiture of pay, or restriction on liberty. He can even award bread and water. You have no right to demand trial. Your otherwise inalienable rights are subject to hazard, without a lawyer and without a trial. The CO says you did whatever and awards punishment. ---- And then there is conscription. "Greetings, etc." may be considered an impingement on one's liberty. Refusal to serve may result in prison time and other undesirable things, otherwise inalienable rights notwithstanding.
There is no temporary suspension of rights while in the military.Try reading the Constitution instead of pulling this shit out out your ass, you ignorant shithead.---- What an ignorant fuckwit you are. Apparently, the only hashmark you had was on your skivvies. nolu chan, USN (Ret)
#55. To: tpaine (#49)
[tpaine #49] Our fundamental rights CANNOT be repealed. They are inalienable, thus any attempt to repeal them would be null and void from inception.
[tpaine #49] I'm agnostic. I've never proposed that any 'God' has anything to do with our rights.
If a Constitutional Amendment may be declared null and void, who has the lawful power to declare a provision of the Constitution null and void? What is your source of higher law?
[tpaine #43] I'm well aware of the temporary suspension of rights while in the military, having served three years.
News flash. Military trials and tribunals are criminal proceedings.
Very well, you claim to have retired from the navy. No doubt as an officer, correct? -- That's what most of you phonies claim, so forgive my doubt. -- Your lack of any sort of honor, or respect for constitutional law, leads me to this conclusion..
[tpaine #49] Getting rattled, aintcha?
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false....
Held:
Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and, in the case of an enlisted member, reduction to the lowest pay grade, Art.19, UCMJ, 10 U.S.C. § 819. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with the most minor offenses. Parker v. Levy, 417 U. S. 733, 417 U. S. 750 (1974).
The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts-Martial 79a (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. § 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call.
The question of whether an accused in a court-martial has a constitutional right to counsel has been much debated, [Footnote 12] and never squarely resolved. See Reid v. Covert, 354 U. S. 1, 354 U. S. 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 71 U. S. 123 (1866), said that
"the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment to those persons who were subject to indictment or presentment in the fifth."
"'cases arising in the land or naval forces' . . . are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth."
We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment.
We therefore agree with the defendants that neither the Sixth nor the Fifth Amendment to the United States Constitution empowers us to overturn the congressional determination that counsel is not required in summary courts-martial.
The Constitution expressly authorized the Congress to "make Rules for the Government and Regulation of the land and naval Forces." Art. I, § 8. Court-martial proceedings, as a primary means for the regulation and discipline of the Armed Forces, were well known to the Founding Fathers. The procedures in such courts were never deemed analogous to, or required to conform with, procedures in civilian courts. One must ignore history, tradition, and practice for two centuries to read into the Constitution, at this late date, a requirement for counsel in the discipline of minor violations of military law.
Replies to Comment # 55. Your version of inalienable rights has been repeatedly cited to the Declaration of Independence for years. That is the one that goes, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...."
Constitutional rights were not granted by "the Creator.
--- who has the lawful power to declare a provision of the Constitution null and void? What is your source of higher law?
Efforts to have the 18th Amendment declared unconstitutional FAILED spectacularly.
A unanimous U.S. Supreme Court stated:
There is no such thing as the constitutional rights of service members being "temporarily suspended" while in the military.
Your belief that constitutional amendments may be declared unconstitutional, --
U.S. Supreme Court Middendorf v. Henry, 425 U.S. 25 (1976) Syllabus at 425 U.S. 26: Held: 1. There is no Sixth Amendment right to counsel in a summary court-martial.... 2. Nor does the Due Process Clause of the Fifth Amendment require that counsel be provided the accused in a summary court-martial proceeding. Opinion of the Court at 425 U.S. 31-32: Special courts-martial may award a bad-conduct discharge, up to six months' confinement at hard labor, forfeiture of two-thirds pay per month for six months, and, in the case of an enlisted member, reduction to the lowest pay grade, Art.19, UCMJ, 10 U.S.C. § 819. Article 15 punishment, conducted personally by the accused's commanding officer, is an administrative method of dealing with the most minor offenses. Parker v. Levy, 417 U. S. 733, 417 U. S. 750 (1974). Opinion of the Court at 425 U.S. 32: The summary court-martial occupies a position between informal nonjudicial disposition under Art. 15 and the courtroom-type procedure of the general and special courts-martial. Its purpose, "is to exercise justice promptly for relatively minor offenses under a simple form of procedure." Manual for Courts- Martial 79a (1969) (MCM). It is an informal proceeding conducted by a single commissioned officer with jurisdiction only over noncommissioned officers and other enlisted personnel. Art. 20, UCMJ, 10 U.S.C. § 820. The presiding officer acts as judge, factfinder, prosecutor, and defense counsel. The presiding officer must inform the accused of the charges and the name of the accuser and call all witnesses whom he or the accused desires to call. Id. at 33-34: The question of whether an accused in a court-martial has a constitutional right to counsel has been much debated, [Footnote 12] and never squarely resolved. See Reid v. Covert, 354 U. S. 1, 354 U. S. 37 (1957). Dicta in Ex parte Milligan, 4 Wall. 2, 71 U. S. 123 (1866), said that "the framers of the Constitution, doubtless, meant to limit the right of trial by jury, in the sixth amendment to those persons who were subject to indictment or presentment in the fifth." In Ex parte Quirin, 317 U. S. 1, 317 U. S. 40 (1942), it was said that "'cases arising in the land or naval forces' . . . are expressly excepted from the Fifth Amendment, and are deemed excepted by implication from the Sixth." Id. at 425 U. S. 43: We recognize that plaintiffs, who have either been convicted or are due to appear before a summary court-martial, may be subjected to loss of liberty or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment. However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 556 (1974). Id. at 425 U. S. 48: We therefore agree with the defendants that neither the Sixth nor the Fifth Amendment to the United States Constitution empowers us to overturn the congressional determination that counsel is not required in summary courts-martial. Justice Powell, concurring at 425 U.S. 49-51: The Constitution expressly authorized the Congress to "make Rules for the Government and Regulation of the land and naval Forces." Art. I, § 8. Court-martial proceedings, as a primary means for the regulation and discipline of the Armed Forces, were well known to the Founding Fathers. The procedures in such courts were never deemed analogous to, or required to conform with, procedures in civilian courts. One must ignore history, tradition, and practice for two centuries to read into the Constitution, at this late date, a requirement for counsel in the discipline of minor violations of military law. I recognize, of course, that one's constitutional rights are not surrendered upon entering the Armed Services. But the rights are applied, as this Court often has held, in light of the "unique military exigencies" that necessarily govern many aspects of military service. See Parker v. Levy, supra, at 417 U. S. 758. In recognition of this, since the founding of the Republic, Congress has enacted special legislation applicable only to the Armed Services, [Footnote 2/2] including the current provisions in the Uniform Code of 425 U. S. 51 Military Justice for summary courts-martial. Art. 16(3), UCMJ, 10 U.S.C. § 816(3). The Summary Court-Martial may take away one's right to liberty and property. Pursuant to the Constitution, no counsel is required. -----
End Trace Mode for Comment # 55.
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