U.S. Constitution
See other U.S. Constitution Articles
Title: GOP rep: 'No president is allowed to burn the First Amendment’
Source:
The Hill
URL Source: http://thehill.com/homenews/house/3 ... ed-to-burn-the-first-amendment
Published: Nov 30, 2016
Author: Mark Hensch
Post Date: 2016-11-30 19:10:50 by Hondo68
Keywords: Impeach Trump, scofflaw, hates BOR
Views: 98927
Comments: 265
Rep. Justin Amash (R-Mich.) on Tuesday defended the constitutionality of flag burning, saying President-elect Donald Trump would violate freedom of speech if he cracked down on it. "Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment," Amash tweeted. Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment. https://t.co/nVkq6WcbHV— Justin Amash (@justinamash) November 29, 2016 Trump earlier Tuesday floated severe penalties for flag burning, mentioning loss of citizenship or a year in jail. “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he tweeted. Trump did not specify what inspired his 7 a.m. tweet about flag burning, which is considered protected speech under U.S. law. The Supreme Court ruled in Texas v. Johnson in 1989 that burning the American flag is allowed under the First Amendment. A spokesman for Trump on Tuesday said he agrees with Trump that the controversial act should be outlawed. “I think most Americans would agree with me that flag burning should be illegal. It’s completely despicable,” Jason Miller told CNN’s “New Day." Rep. Sean Duffy (R-Wis.) told CNN he disagrees with Trump, though. “I don’t think we want to make this a legal issue. So I disagree with Mr. Trump on that, and the court is probably right," Duffy said. “I think the court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it.” House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech. “We have a First Amendment right. We’ll protect our First Amendment. That’s what the court has upheld,” he said on MSNBC’s “Morning Joe” on Tuesday. Poster Comment:
House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech
Already there are the beginnings of an impeach Trump movement in the HOR, and he hasn't even taken office yet. (1 image)
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
Comments (1-160) not displayed.
.
.
.
#161. To: misterwhite (#158)
Let me make crystal clear what you actually said: Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game." If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states. I think everyone has had enough of this f**king judicial oligarchy. Those are your actual words. You seem confused and unable to recall them accurately. I have done my best to assist with combatting your short-term memory loss and the resulting confusion. It is not the function of the U.S. Supreme Court to ban flag burning before some asshat does something illegal such as assault or murder. When an asshat acts to unlawfully prevent constitutionally protected free speech, it is not the function of the government to coddle the lawbreaker. The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning" to be categorized as "hate speech", "fighting words" or an incitement to imminent violence. Just because some asshat responds with violence to constitutionally protected speech of which he does not approve, does not provide any basis to ban all such speech. The lawbreaker is put behind bars or put in the ground as appropriate. If the law is deemed to need changing, it is up to the appropriate authority to change the law. That authority is not the court. There is no constitutional way for Congress to so act. Congress cannot take away the ORIGINAL jurisdiction of the Federal courts. It can only limit the APPELLATE jurisdiction of the U.S. Supreme Court. The U.S. District Courts hold ORIGINAL jurisdiction in most cases. They are bound by existing precedents set by their Circuit Court or the U.S. Supreme Court. What you imagine you can do is elimate the entire Federal judicial branch. Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution. Congress lacks authority to move jurisdiction from the Federal courts to the State courts. Federal jurisdiction is assigned by the Constitution. Federal law only determines which Federal court exercises the jurisdiction assigned by the Constitution. The jurisdiction of the Judicial branch is only limited by declaring and implementing martial law. Congress has no authority to eliminate the entire Judicial branch, nor limit any Federal jurisdiction except for Supreme Court APPELLATE jurisdiction. That does not leave jack shit up to the States, or State courts as final authority on matters assigned to the jurisdiction of the Federal courts by the Constitution. There is no ORIGINAL jurisdiction in the Courts of Appeals. They never function as a trial court or court of the first instance. ORIGINAL jurisdiction for most Federal cases is assigned to the District Courts. They function as trial courts. The Supreme Court can function as either a trial court or an appellate court. They can even convene a jury trial. If your illustrious and grand newly powers were real, and were implemented, then by this simple magical device, the Congress could return the questions of slavery and abortion to the State courts as the final arbiter of whether all abortions were lawful (or unlawful) within a state, or whether any provision of the Constitution would be subject to review by the Federal courts. All Federal court jurisdiction could be rendered null and void near the Mexican border and vigilantes could just aliens crossing illegally. As there would be no applicable Federal law, States could make any such shooting unprosecutable. And, of course, as you would put the Federal Judicial branch courts out of business, if someone burns a flag in Washington, D.C. and some asshat decides to behead him on the spot, the crime would not have occurred in any state and there could be no Federal prosecution... unless... wait for it.... martial law were declared and the lawless one could be dragged before a military tribunal, a Federal court of the Executive branch. Quit making believe that Congress has the authority to eliminate the Judicial branch and return constitutionally assigned Federal jurisdiction to the States.
.... unless Congress removes the court's appellate jurisdiction on the matter. Limiting the APPELLATE jurisdiction of the U.S. SUPREME COURT is irrelevant to this point. If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes. They have the power to override any veto. If it is an interpretation of the CONSTITUTION, Congress can't do a thing about it but propose a Constitutional amendment to the States, for their approval. You may not like the Amercan system of government, and express disdain for it, or even hate it with a passion, and you may wish for a king and all the royal power that comes with royal monarchy, but that is not the system that we have. Congress cannot remove the jurisdiction of the Federal Judicial branch because you find it inconvenient to your desire to crush what has been held to be constitutionally protected free speech.
Oh? Congress passed, and the President signed, the Defense of Marriage Act and it was ruled unconstitutional by the U.S. Supreme Court. Now what? How do you re-write, "Marriage is between one man and one woman"? Well, you can't. So the House voted 233-194 to remove U.S. Supreme Court appellate jurisdiction. But the legislation died in the Senate. "because you find it inconvenient to your desire to crush what has been held to be constitutionally protected free speech." That's my point. Flag burning shouldn't be protected -- no more than "hate speech", fighting words", or behavior that acts as an incitement to imminent violence.
Are you mocking my stutter? Do you think the first amendment protects your making fun of people with a browser disability? Go burn a flag.
I am still studying the issue, but here are the bones of the solution. Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally. In any case dependent on the resolution of a question of the constitutionality of an act of Congress, the Court would be allowed to proceed only with the explicit permission of Congress. That permission could be either conditional or unconditional, depending on Congressional will as expressed in the permission granted to the Court in the specific case. I'll return this proposed solution with additional details after a brief discussion of the history of judicial review. Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary. Brutus, the antifederalist, predicted this in his Essay No. XV, when he observed that federal judges would "extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion." We have now arrived at the point where the Court arrogantly and unconstitutionally legislates from the bench at will, assuming powers reserved to Congress. Allowing that to continue undermines our republican form of government and the rule of law. By subjecting the Court to limitations upon such usurpations, Congress could reestablish America's lost balance of powers. A statutory solution provides tremendous opportunities for flexible and innovative solutions, especially with the guidance of a President with great negotiation skills. With that in mind, the following is little more than a very rough first draft for possible statutory construction. Congress would require the Court to submit a request to engage in judicial review on a case-by-case basis, with the Court given an opportunity to provide Congress with a justification for the request. If the justification was sufficiently compelling, Congress might allow the Court to proceed unconditionally, if it so chose. Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities. Personally, I would prefer Congress to impose its will on the Court without any regard to the feelings of the corrupt justices controlling it. However, Congress could take (or pretend to take) a more concilliatory approach, treating the solution as some form of partnership between the two branches. (Such as a binding Memorandum of Understanding or something similar.) Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege. Anyway, like I said, first conceptual draft.
Oh? Congress passed, and the President signed, the Defense of Marriage Act and it was ruled unconstitutional by the U.S. Supreme Court. Now what? How do you re-write, "Marriage is between one man and one woman"? Well, you can't. So the House voted 233-194 to remove U.S. Supreme Court appellate jurisdiction. But the legislation died in the Senate. Jurisdiction cannot be removed retroactively. Congress passed a law that was ruled UNCONSTITUTIONAL. the Court held it UNCONSTITUTIONAL. If they rewrote it so it would be CONSTITUTIONAL, they would have no problem. Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL. It would not remove the binding precedent that has already been cast upon the UNCONSTITUTIONAL effort, and which is binding on all Federal and State courts. Writing another UNCONSTITITIONAL law will not escape Federal judicial review. [nolu chan #162] If it is an interpretation of the CONSTITUTION, Congress can't do a thing about it but propose a Constitutional amendment to the States, for their approval. You cannot escape the law with your juvenile tricks.
Are you mocking my stutter? Do you think the first amendment protects your making fun of people with a browser disability? Go burn a flag. I quoted you. It made as much sense as your attempts to reinvent the legal system. I will go burn your surrender flag, Mr. WHITE.
What you desire the Congress is, of course, blatantly unconstitutional. Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73: Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court. Congress was not granted the authority to limit the original jurisdiction of any federal court, and that is where the trial is held, the court of first instance. Congress cannot limit the original jurisdiction of any court, and cannot limit the appellate jurisdiction of ant U.S. Circuit Court of Appeals. Article 3, Section 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Do try reading the constitutional provision with the knowledge that Appellate jurisdiction does not arise until Original jurisdiction has been exercised at the trial court level. Appellate jurisdiction seems to arise in the U.S. Supreme Court after it has been excercised first in a U.S. Circuit Court of Appeals. 1 Stat. 80 (24 Sept. 1789) To see the jurisdiction held by the U.S. District Courts, see 28 U.S.C. Chapter 85 (§§ 1330 - 1369).
Marbury is not the first decision of judicial review in the U.S. Supreme Court. That would be Hylton v. United States, 3 U.S. 71 (1796). Hylton reviewed the constitutionality of a tax law and upheld it. Calder v. Bull was also a case of judicial review. What distinguishes Marbury is that it was the first case of judicial review resulting in a law being overturned, not that it is the source of judicial review. Judicial review is not arguable as unconstitutional in court unless you desire to invite Rule 11 sanctions. https://supreme.justia.com/cases/federal/us/3/171/ Hylton v. United States 3 U.S. (3 Dall.) 171 Syllabus The act of Congress of 6 June 1794, laying "a tax on carriages for the conveyance of persons, kept for the use of the owner," is a constitutional law, and is within the authority granted to Congress by the eighth section of the first article of the Constitution. https://supreme.justia.com/cases/federal/us/3/386/ AUGUST TERM, 1798. CALDER and wife v. BULL and wife. Constitutional law.—Eminent domain.—Ex post facto laws. The judiciary is a co-ordinate branch of the government, and may declare a statute to be void, as repugnant to the constitution.
Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The court opines on cases or controversies before the court, pursuant to U.S. Const. Art 3, Sec. 2, Cl. 1, Case or Controversy provision.
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. " Congress may limit both the appellate and original jurisdiction of the inferior courts it establishes. For example, the United States Bankruptcy Court. Poor Shit-For-Brains.
"Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257. Poor Shit-For-Brains.
False interpretation of the Courts interpretive powers. Congress lacks authority to make law repugnant to the Constitution. The SCOTUS lacks authority to issue opinions repugnant to the the Constitution. All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution.
This, I like. Have the courts review legislation prior to a vote. I'm guessing they wouldn't be interested in 99.9% of the legislation that goes on, so this isn't that much of a burden. This is an issue that's always bothered me anyways. Congress takes forever to pass legislation and, when they do, it's struck down by the courts. What a waste of time. This way the judicial branch has their say but they're not the final word. Moreso, the court's constitutional findings could be used as part of the debate in Congress. This places the onus on representatives elected by the people, not unelected and unaccountable justices. (I'd also like to see Congress directly involved in passing regulations, rather than avoiding responsibility by allowing agencies to issue them. But that's a topic for another thread.) (I'd also like Congress to issue a "Declaration of Conflict" whenever we send troops into battle anywhere. Time for them to go on record before money is spent and people start dying. Again, another topic for another thread.) OK. I'm done.
If the review is nonbinding the court could say whatever they want. If they try this "emanation from a penumbra" bullshit, Congress could simply laugh at them Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.
Congress sure thought they could. The House even passed legislation removing judicial review on the definition of marriage. Had it gotten out of committee and passed the Senate you'd be eating your words. "Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL." It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue. We would never know.
Yep. Or even say nothing at all. Congress could remind them of their silence if they later pray for permission to consider a constitutional challenge to that particular federal statute.
Yep. Congress, in its act of 27th March, 1868, removed the Supreme Court's appellate jurisdiction to hear habeas corpus appeals. In response, the Court, in Ex parte McCardle, 74 U.S. 506, (1868), went to its collective knee and kissed the legislature's, er, ring.
Weren't Trumps comments just an example of how strongly he feels about flag burning. It reflects what many would say and feel. That is why we have divided government, so crazy ideas are not implemented. People are just afraid now because of the Imperial Presidency we have had on and off since Lincoln(on), Coolidge(off), FDR(on), Johnson/Nixon/Reagan/Bushes/Clinton/Obama(all on)
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Good point. Helping to clarify potential legal considerations in the legislative history and aiding statutory interpretation in future adjudications. That could even reach to more pedestrian concerns such a statutory ambiguity.
The USSC, as it usually is or was, ruled wrongly. Free speech should not be a reason for a fight or "breach of the peace" to ensue. When it does, it shouldn't be a reason for another law to be written. Let juries sort these things out with fully informed people. In this country we do not need a cop, jailer, court stenographer, doctor, lawyer, fancy building, appointed attys, file clerk etc, to produce Justice. What we really have here is too much time on peoples hands, and too much government in the form of the Just Us system. We can have justice without having laws against words or "offending words". If you own a flag and you burn it, what skin is it off of my nose? If it is a publicly displayed flag, or one that does not belong to the person destroying it, now we have theft and destruction involved. Those are actual crimes.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
If they own the flag, they can do with it as they wish I couldn't agree more. Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
If you burn my flag, it is a crime. If I burn my flag it is free speech. The right way to rule on the case is so simple.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Yes, original intent is the only way to go. All precedents should be burned, and each case decided with only logical understanding of the intent of the law. This comment is not sarcasm. It has always struck me that the USSC and the US Justice system is very much like that of the Jewish religion. They follow more the commentary on the Word, than the Word itself. Centuries of thought by what they say is the best and brightest, is thought to be equal to or above the actual words handed down to Moses. Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
I understand. As I'm sure you understand that to most people the American flag is a symbol of our country and it stands for something. And I'm sure you understand how some people (not you, obviously) could become upset when someone burns the flag at a protest. And that action could lead to violence. Now. Why would you want to protect this behavior yet ban "hate speech", "fighting words" and other behavior that acts as an incitement to imminent violence?
Hate speech is just words and nothing is burned. Yet there are laws against it.
Not a good record. Trump's comment about jail time is bad enough, but the idea of "loss of citizenship" is too much. Most of us were born in the USA of citizen parents. What would one be if they lost US citizenship, United Nations citizens? Where would they deport someone who's not a citizen of any country? Some dopey kid who burned a US flag, would likely become radicalized. If you just laughed at them, they'd likely outgrow it in a few years and become a great American. The "cure" is worse than the disease. Well, original "something". Scalia was big on original meaning. Original intent would be what the writer had in mind when he wrote the words. Original meaning would be what an average reader thinks when he reads those words in that historical period. Either one would be better than the method the courts use today ... which is "what they think".
Well, they obviously hate the United States. So they must believe there are other countries they'd prefer. Ask them to pick one and we'll work something out with that country.
Yeah. What you said. That too. (I think "The Ambiguous Statutes" would be a great name for a rock band.)
No, most likely they just hate the corrupt unconstitutional government. You seem to love Obama and worship his tyrannical regime, but you're in the minority. Love the USA, but hate the rotten D&R government. The American flag represents the country, not the current government. If you "Love the USA, but hate the rotten D&R government", then find something else to burn.
Right. By burning the symbol of your country.
Protecting our country includes the symbol such as flag burning to make an explicit perspective that there is whole lot of wrongs by the US Government that are not addressed by politicians.
Liberal clap-trap gobbledygook. You don't like the government? Burn something else.
With a government closing free expression, that you agree with, no wonder the place has turned into a tyrannical do-nothing failure for all the world to see.
Do you mean banning "hate speech"?
False interpretation of the Courts interpretive powers. Congress lacks authority to make law repugnant to the Constitution. The SCOTUS lacks authority to issue opinions repugnant to the the Constitution. All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution. I've made that argument many times here, to our local chumps, --- but they can't seem to understand. Maybe it's because they don't really honor our constitutions original intent.
Explain "hate speech" and the authority of Congress to close the obvious "loop holes."
I have never supported hate speech laws. I see no reason to ban any speech, or action unless it can be proven to damage another human being. With that said, there also should not be any law protecting the State or Federal government as in the govt taking the place of the harmed individual, like The State of Vermont vs a shoplifter, or other common criminal. That is nonsense on its face, and reeks of a Monarchy.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Comments (202 - 265) not displayed.
Top • Page Up • Full Thread • Page Down • Bottom/Latest You seem confused so let me be clear:
#138. To: nolu chan (#137)
"Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson."
I am saying that, based on observable action at these flag burning protests, the U.S. Supreme Court should declare flag flag bu fl flag flag bu flag flag burning to be categorized as "hate speech", "fighting words" or an incitement to imminent violence. Before someone is injured or killed.
[138] Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game." If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states.
[158] IF the U.S. Supreme Court refuses to do this, I am saying that Congress should exercise their constitutional power under Article III, Section 2, and strip the court's appellate jurisdiction on this matter and turn it over to the states.
#162. To: misterwhite (#159)
"If it is a statute law, the legislature has the power to amend or repeal the statute ...."
#163. To: nolu chan (#162)
"If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes."
#164. To: nolu chan (#161)
"The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning"
#165. To: misterwhite (#160)
It's much better to have five unelected and unaccountable justices decide how all of us should live.
#166. To: misterwhite (#163)
"If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes."
If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes. They have the power to override any veto.
#167. To: misterwhite (#164)
The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning"
#168. To: Roscoe (#165)
Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally.
The question whether a federal court has jurisdiction to review the constitutionality of a congressional withdrawal of jurisdiction is distinct from the question of what limitations the Constitution in fact imposes upon such legislation. Plainly, the usual limitations of the Bill of Rights and of Article I, § 9, apply: the paradigmatic example of an external constitutional limitation would be the undisputed prohibitions imposed by the Due Process and Free Speech Clauses on legislation that would, say, restrict access to the federal courts on the basis of a litigant's race, religion, gender or political affiliation or viewpoint. Moreover, laws designed to hinder the exercise of constitutional rights are, to that degree, unconstitutional. Likewise, even those jurisdictional statutes which unintentionally burden the exercise of such rights warrant strict scrutiny;24 thus, if busing were demonstrably the only remedy to effectuate one's right not to attend a segregated school, federal legislation limiting judicial power to order busing as a remedy would appear highly suspect. Even the withdrawal of a gratuity—whether in the form of a welfare payment that a state is not independently required to make25 or in the form of an extension of court jurisdiction that Congress is not independently compelled to provide—may be forbidden if it penalizes a separately secured right.26 Congress, in short, is not entirely at liberty to create free-fire zones around currently unpopular constitutional rights.27
Section 2.
SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
#169. To: Roscoe (#165)
Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary.
Hylton v. United States, 3 U.S. 3 Dall. 171 (1796)
Calder v. Bull, 3 Dall. 386 (1798)
#170. To: Roscoe (#165)
Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.
#171. To: nolu chan (#168)
Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court.
#172. To: nolu chan (#170)
Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers.
#173. To: Yall (#161)
"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution."
#174. To: Roscoe (#165)
"Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities."
#175. To: Roscoe (#165)
"Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege."
#176. To: nolu chan (#166)
"You cannot escape the law with your juvenile tricks."
#177. To: misterwhite (#175)
If the review is nonbinding the court could say whatever they want.
Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.
Exactly.
#178. To: misterwhite (#176)
It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue.
#179. To: hondo68 (#0)
#180. To: misterwhite (#174)
Moreso, the court's constitutional findings could be used as part of the debate in Congress.
#181. To: misterwhite (#1)
#182. To: hondo68 (#5)
And you don't respect private property either, so you're a communist as well!
#183. To: Deckard (#14)
#184. To: Roscoe (#18)
#185. To: jeremiad (#181)
"If you own a flag and you burn it, what skin is it off of my nose?"
#186. To: jeremiad (#183)
"If you burn my flag, it is a crime. If I burn my flag it is free speech."
#187. To: jeremiad (#179)
the Imperial Presidency we have had on and off since Lincoln(on), Coolidge(off), FDR(on), Johnson/Nixon/Reagan/Bushes/Clinton/Obama(all on)
The "anti-establishment" establishment
#188. To: Roscoe (#18)
"Time to return to original intent."
#189. To: hondo68 (#187)
"Where would they deport someone who's not a citizen of any country?"
#190. To: Roscoe (#180)
(Edited)
"That could even reach to more pedestrian concerns such a statutory ambiguity."
#191. To: misterwhite, Obamas Canaries, Tyranny Worship, *The Two Parties ARE the Same* (#189)
(Edited)
they obviously hate the United States.
The "anti-establishment" establishment
#192. To: hondo68 (#191)
"No, most likely they just hate the corrupt unconstitutional government."
#193. To: misterwhite, tpaine, Thomas Paine (#192)
The "anti-establishment" establishment
#194. To: hondo68 (#193)
#195. To: misterwhite (#194)
By burning the symbol of your country.
#196. To: buckeroo (#195)
"Protecting our country includes the symbol such as flag burning to make an explicit perspective that there is whole lot of wrongs by the US Government that are not addressed by politicians."
#197. To: misterwhite (#196)
clap-trap gobbledygook
#198. To: buckeroo (#197)
"With a government closing free expression"
#199. To: jeremiad, yall (#184)
"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.". Nolu chump
Yes, original intent is the only way to go. All precedents should be burned, and each case decided with only logical understanding of the intent of the law.
#200. To: misterwhite (#198)
#201. To: misterwhite (#186)
.
.
.
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]