U.S. Constitution
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Title: nolu chan contends an amendment to repeal the 2nd Amdt could be passed
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Published: Jul 9, 2015
Author: tpaine
Post Date: 2015-07-09 10:39:45 by tpaine
Keywords: None
Views: 79390
Comments: 255
The Congress proposes, and three-fourths of the states ratify the following amendment
AMENDMENT 28.
Section 1. The second article of amendment is hereby repealed.
Section 2. The individual right to keep and bear, buy, make, and use arms is limited to .22 caliber handguns only.
Section 3. All non-conforming guns must be surrendered to government authorities or destroyed within 30 days of ratification of this amendment.
Section 4. The Congress shall have the power to enforce this article by appropriate legislation.
Poster Comment:
During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional. Comments?
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#70. To: nolu chan (#63)
Some people have the opinion that the SCOTUS opinion meant that, but I'd bet 'we' don't comply, any more than we complied with prohibition, -- or would comply with an amendment to repeal the 2nd.. Absolutely correct.. -- Only laws (or amendments) made "in pursuance thereof" (as the supremacy clause says) are part of our supreme law, the Constitution.. We agree... We disagree. -- There is nothing in our constitution itself that supports your opinion. -- Your lengthy postings of opinions by other authorities are just that, --- opinions. They do not prove your case.
The only rights that one has in the real world are the rights that one can defend. Otherwise it's Katy bar the door. потому что Бог хочет это тот путь
Remember the constitution isn't perfect. It is man made and contains flaws. If the sovereign people do not have the power to change the organic law of the country as they choose, the Constitution and the government formed under it surely resulted from unlawful acts. The explanation of the power exercised is that the people are the sovereigns, and the sovereign answers to nobody. There is no guarantee they will act wisely. It was definitely not done pursuant to the Articles of Confederation. Article 13 of the Articles of Confederation:
Your posting your wingnut nonsense certainly does not prove your point.
Good commentary. The issue today, particularly because the US government is so weak with debt while stricken with an anemic economy for the past decade is, they are ripping the place up attempting to install disipline to the people obeying a government. Tpaine makes good points about his considerations. But the second amendment (as all amendments) are only reliable and trustworthy as the people and the representative government that is voted by the people.
This claim is false, as previously explained thoroughly on the other thread. The question was not before the court to determine the constitutionality of the 18th Amendment. An amendment cannot be unconstitutional. Counsel did not argue the the amendment was unconstitutional, he argued that, due to its content, it was ordinary legislation and not an amendment at all. And, as ordinary legislation, the court had the authority to strike it down, according to this creative argument. Trust tpaine to bloviate endlessly about crap he has not seen or read. On brief: The briefs were ridiculed in W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, Vl XXX, No. 4, February 1921, p. 322. This is the Yale Law Journal, not tpaine's court of the imagination. The argument was characterized in W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, V1 XXX, No. 4, February 1921, p. 333. [...] Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously: “And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court.... “Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves. “Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves. “The attempt is made to explain in some way that the Thirteenth Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.” The 18th Amendment was an amendment, not common legislation. In 264 Federal Reporter 186, on the Feigenspan case, the headnotes read, 2. Every grant of power to the federal government, whether by the Constitution as orlglnally framed or by subsequent amendment, necessariy diminished powers of the several st.ates, and that an amendment takes away a pollce power previously In the state dpes not render It invalid. 3. That a constitutional amendment is in effect legislation controlling the conduct of private individuals, in that it ordains a final permanent law prohibiting certain acts, not alterable at the will of a majority, does not render it invalid. 4. The provision of Const. art. 5, authorizing Congress to propose amendments "whenever two-thirds of both houses shall deem it necessary," does not require that a joint resolution proposing an amendment shall expressly declare that it is deemed necessary. 5. Congress alone, of all departments of the federal government, is intrusted with the power of proposing amendments to the Constitution, and the form of resolutions by which it proposes an amendment is not subject to judicial investigation. 6. In Const. art. 5, providing that a proposed amendment shall be valid "when ratified by the legislatures of three-fourths of the several states," when that mode shall be proposed by Congress, the word "Legislature" means the then recognized representative law-making bodies of the states, and the validity of an amendment ratified by the requisite number of such Legislatures cannot be affected by state laws providing for, or permitting, a referendum vote on legislative acts. 7. Eighteenth Amendment, § 2, providing that "the Congress and the several states shall have concurrent power to enforce this article by appropriate legislatlon," must be construed, in harmony with its purpose, to expressly authorize effective legislation for enforcement of section 1, which excludes a construction making concurrence of the states necessary to tbe effectiveness of congressional legislation, and such legislation, if enacted, is parramount, and, while it may be supplemented by state legislation, it cannot be defeated by any action or nonaction of the states. In the absence of action by Congress, any state may enact enforcement legislation effective within its borders. 8. National Prohibition Act Oct. 28, 1919, § 1, in providing that "intoxicating liquor" as used in the act, shall be construed to include all liquors, liquids, or compounds containing one-half of 1 per centum or more of alcohol by volume, does not make a definition which may be declared arbitrary and unconstitutional by the courts, but one which it was within the reasonable discretion of Congress to make for the purposes of the act. 9. National Prohibition Act Oct 28, 1919, held not invalid, as taking private property for public use without just compensution, in violation of Fifth Amendment, because, as incidental to the exercise of a lawful power, loss may result to certain species of property. 10. "Amendment" includes additions to, as well as corrections of, matters already treated, and there is nothing in the context of Const. art. 5, providing that Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments, which suggests that it was used in a restricted sense. The Decree in Feigenspan was affirmed by SCOTUS. 253 US 350, 40 Sup Ct 486.
During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional. I beg to differ. I think we have an unalienable right to keep and bear arms. -- I see nothing in the Constitution itself that says we could amendment away that right. I've been asking Chan to point out where in the Constitution it allows a majority to repeal ANY of our basic inalienable rights. He can't quite find it. --- Can anyone?? We agree..
Damn right..
Yes you do. It is called the Amendment process. It is a built in mechanism of the US Constitution. Here is an authoritative glimse: The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal Register. Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985. The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b. The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation. A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been completed. In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive. In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.
We agree... We disagree. -- There is nothing in our constitution itself that supports your opinion. -- Your lengthy postings of opinions by other authorities are just that, --- opinions. They do not prove your case. Your pejorative comments lead me to believe you want to end this discussion in a flame war. -- No thanks...
I see no limitation on the amendments. Is there somewhere that says the second amendment can't be amended. Now I think it is a stupid idea to try to repeal the second amendment. But technically speaking I don't see how it would be unconstitutional. It would be against the Declaration of Independence. A superior document.
tpaine: Damn right.. In these days of
A flame war does not consist of mildly perjorative comments. I am expressing my disdain for your blather.
We disagree. -- There is nothing in our constitution itself that supports your opinion. -- Who has ever successfully defied a Supreme Court ruling on a consitutional issue? What is the avenue of appeal other than what nolu has identified? потому что Бог хочет это тот путь
I forgot to include Deckard in my above post. Almost daily, he confirms that a Fascist America is alive & thriving while begging to ensure that a police state over-powers American citizens.
Actually not even that as the recent Supreme Court decisions prove. потому что Бог хочет это тот путь
BTW, what does the Consitution say about the involuntary removal of a Supreme Court judge?
потому что Бог хочет это тот путь
He asked, "Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns?" [emphasis added] I replied with an example of such an Amendment and asked how it could be struck down. I did not advocate for such an Amendment, but only observed that the people, as the sovereigns, have the power to do it. I would advocate for an amendment strengthening the RKBA and 2nd Amdt. What would prevent an amendment taking away the RKBA today would be the requirement of getting 38 states to ratify it.
Nolu chan never proposed any such amendment. I changed the Title.
The constitutionality of the 18th was challenged in 1920. The SCOTUS declined to issue an opinion on that specific issue, and left it at that, whereupon damn near everyone ignored the 'amendment, until it was repealed. Anyone can read the other thread, and see that you did not prove your claim. Root made that argument, among others. Your lengthy posts only cite the others, and the opinions about those other arguments.. So you've been claiming, (without any constitutional basis) - for several days now. -- It's your opinion. As I've noted before, you seem to want to end this discussion (because you realise you can't what - 'win'?) with a flame war. --- No sale..
The US Supreme Court can not strike down an amendment. They infer or "interpret" a decision based acceptable cases rising on their scrutiny for cse law for and about the US Constitution requirements. They are a "whacky, weird set of opinions" too. For what it is worth, I disagree with just about every decision they make. I disagee with the process for their cases, alo ... as they are as politically motivated as a pile of pirates begging for some rum in a nudity bar and getting a quickie in a backroom.
In 1804, the Senate held an impeachment trial for U.S. Supreme Court Justice Samuel Chase. He was not convicted.
They don't have to strike it down. What would have happened if SCOTUS ruled the other way against the various City and State laws resticting gun ownership by implementing extremely onerous, if not practically impossible, permiting requirements? Also, what happens if the Fed refuses to enforce a constitutional valid law or Supreme Court decision for itself or for a State? SCOTUS does not have any enforcement power. потому что Бог хочет это тот путь
Who presided? потому что Бог хочет это тот путь
I asked, "Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns?" [emphasis added] And I read your example, and observed that it seemed you advocated the power of the people to pass such an unconstitutional act.. It's unfortunate you didn't revise your comments over on the other thread, isn't it..
Well stated. The USSC can simply "interpret the laws under the US Constitution." So, they practice "due diligence" as blacked robed thieves of citizen rights, liberties, freedoms and dignites. They have been performing their black maejiick nearly since their first appearance.
The way I look at it, when you drill down to the core, all liberty repose in the rules of evidence. You have the liberty to do everything permitted by the laws of physics: you CAN do whatever is POSSIBLE to do. The real question is whether you will be punished or not for doing it. And THAT is really determined, first and foremost, by whether anybody can prove you did it before a tribunal. Likewise, the authorities CAN charge you with anything, whether you're innocent or not, and seek your incarceration or death. In all such cases, guilt or innocence is decided by the tribunal by applying rules, and the rules that matter most are the rules that determine what your accusers get to say to the trier of fact, and what you get to say in rebuttal. Who has the "burden of proof" is usually dospositive. And THAT is why all liberty ultimately repose in the rules of evidence
Try reading the court opinions. https://supreme.justia.com/cases/federal/us/253/350/case.html National Prohibition Cases, 253 U.S. 350 (1920) tares of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." The text of the Eighteenth Amendment, proposed by Congress in 1917 and proclaimed as ratified in 1919, 40 Stat. 1050, 1941, is as follows: "Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. "Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." We here are concerned with seven cases involving the validity of that Amendment and of certain general features of the National Prohibition Law, known as the Volstead Act, c. 83,41 Stat. 305, which was adopted to enforce the Amendment. The relief sought in each case is an injunction against the execution of that act. Two of the cases —Nos. 29 and 30, Original,—were brought in this court, and the others in district courts. Nos. 696, 752, 788 and 837 are here on appeals from decrees refusing injunctions, and No. 794 from a decree granting an injunction. The cases have been elaborately argued at the bar and in [386] Conclusions of the Court printed briefs; and the arguments have been attentively considered, with the result that we reach and announce the following conclusions on the questions involved: 1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration. 2. The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present—assuming the presence of a quorum— and not a vote of two-thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276. 3. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, ante, 221. 4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article V of the Constitution. 5. That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. 6. The first section of the Amendment—the one embodying the prohibition—is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every [387] Conclusions of the Court legislative act—whether by Congress, by a state legislature, or by a territorial assembly—which authorises or sanctions what the section prohibits. 7. The second section of the Amendment—the one declaring "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation"—does not enable Congress or the several States to defeat or thwart the prohibition; but only to enforce it by appropriate means. 8. The words "concurrent power " in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several States or any of them; nor do they mean that the power to enforce is divided between Congress and the several States along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. 9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as w$ll as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several States or any of them. 10. That power may be exerted against the disposal for beverage purposes of liquors manufactured before the Amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being enforced. 11. While recognising that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the Volstead Act (Title II, § 1), wherein liquors containing as much as one-half of one per cent, of alcohol by volume and fit for use for beverage [388] purpose are treated as within that power. Jacob Ruppert v. Caffey, 251 U. S. 264. Giving effect to these conclusions, we dispose of the cases as follows: In Nos. 29 and 30, Original, the bills are dismissed. In No. 794 the decree is reversed. In Nos. 696, 762, 788 and 837 the decrees are affirmed. Feigenspan was case #788 as cited by SCOTUS in affirming the decree thereof. Feigenspan is found at 264 Federal Reporter 186 (1920), below is the first headnote of the holding.
No. It led you to make an ass of yourself.
Not first and foremosr, just ask anyone in a society in which vendettas are tolerated, if not the norm. потому что Бог хочет это тот путь
Aaron Burr. The House impeached in 1804 and the trial was in 1805.
It's unfortunate you didn't revise your comments over on the other thread, isn't it.. Sigh, another silly, uncalled for pejorative flame.. -- Very unprofessional for a guy trying to pass himself off as one..
I totally disagree. Irrespective of what the written law may be, practice trumps it. No tribunal, be it a judge or jury or whatever, is ever bound or forced to reach its decision on the basis of evidence. Kanagroo courts abound, always have and always will. A law that isn't enforced is de facto not a law. Histroy is on my side on this. потому что Бог хочет это тот путь
Aaron Burr. I thought impeachment hearings had to be presided over by the Chief Justice. Was that not always the case? Aaron Burr, you say. Wasn't he the man that shot Liberty Valance? потому что Бог хочет это тот путь
But even kangaroo cots feel constrained to set up a procedure, to have a "court". Within our system in America, our prosecutors all powers and abuses often render our justice system kangaroo courts. But they are still bound by the rules of evidence, and if they ignore procedure in their rush to judgement, they are subject to multiple levels of review.
Let's see what happens to those Baltimore cops. потому что Бог хочет это тот путь
At the end of the final appeal.
Yes the point is several posters have confirmed any Amendment can be amended. Perhaps a more accurate way of asking your question is: Can our enumerated rights, the Bill of Rights be amended? Short answer is yes. Long answer is if we do we scrap the philosophical founding of our nation, the DoI. It all goes back to the terms used by the founders of "self evident" and "endowed by their Creator." If our government decided to amend any of the enumerated rights, the response of freedom loving people should be similar to this: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. http://www.archives.gov/exhibits/charters/declaration_transcript.ht ml No. Aaron Burr was Vice President at the time, which made him President of the Senate. This was not a presidential impeachment. Article 1, Section 3, Clause 6 provides:
Of course, I have no need to revise my comments. You asked "Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns? " I correctly affirmed that such an amendment could be passed. I answered the question you asked. Your arguments, if tried in court, would result in Rule 11 sanctions. "There is no room for a pure heart, empty head defense under Rule 11." First Nat. Bank and Trust Co. of Vinita v. Kissee (1993), 1993 OK 96, 859 P.2d 502 Does Obama enjoy the power you espouse to ignore the Court and the laws? Does his interpretation of the Constitution and the laws supplant that of the Court for the Executive branch? Can Barack Obama lawfully deem that he is not required to comply with the immigration laws and can permit open borders, and take no action on illegal immigration? Can Obama lawfully deem 12-million illegal aliens to be citizens? Can Obama lawfully deem he can authorize the naturalization of an illegal alien?
Yep, ignore SCOTUS and focus on the tpaine court of the imagination, in your imaginary world. http://www.supremecourt.gov/about/constitutional.aspx U.S. Supreme Court website: The Court and Constitutional Interpretation - - - - - US v McDonald, 9th Cir 88-5239, 919 F.2d 146 (26 Nov 1990) Whenever official notice is received at the Department of State that any amendment proposed to the Constitution of the United States has been adopted, according to the provisions of the Constitution, the Secretary of State shall forthwith cause the amendment to be published in the newspapers authorized to promulgate the laws, with his certificate, specifying the States by which the same may have been adopted, and that the same has become valid, to all intents and purposes, as a part of the Constitution of the United States. Act of April 20, 1818, ch. 80, Sec. 2, Rev.Stat. Sec. 205 (2d ed. 1878) (amended version codified at 5 U.S.C. § 160 (1940) (repealed Oct. 31, 1951); current version, as amended, at 1 U.S.C. § 106b (Supp. II 1984)). Secretary of State Knox's certification of the adoption of the sixteenth amendment is conclusive upon the courts. United States v. Thomas, 788 F.2d 1250, 1253-54 (7th Cir. 1986); see also Leser v. Garnett, 258 U.S. 130, 137, 42 S. Ct. 217, 218, 66 L. Ed. 505 (1922). In Leser suit was brought to strike the names of two women from the list of qualified voters in Maryland on the ground that the constitution of Maryland limited suffrage to men. Maryland had refused to ratify the Nineteenth Amendment. The necessary minimum of thirty-six states had ratified the amendment. The Secretary of State of the United States had certified its adoption. It was contended, however, that the ratifying resolutions of Tennessee and West Virginia, two of the states that had ratified the amendment, were inoperative because the resolutions of those states had been adopted in violation of their rules of legislative procedure. In answer to that contention the Court ruled: The proclamation by the Secretary certified that from official documents on file in the Department of State it appeared that the proposed Amendment was ratified by the legislatures of thirty-six States, and that it "has become valid to all intents and purposes as a part of the Constitution of the United States." As the legislatures of Tennessee and of West Virginia had power to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that they had done so was conclusive upon him, and, being certified to by his proclamation, is conclusive upon the courts. United States v. Stahl, 792 F.2d 1438, 1439 (9th Cir. 1986) - - - - -
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Top • Page Up • Full Thread • Page Down • Bottom/Latest Don (#44) --- Did the U.S. Supreme Court just legislate gay marriage for the fifty states?
Isn't it the Constitutional limitation for that Court to interpret the laws in accordance with the Constitution, rather than make Federal law?
Nolu Chan -- The Court majority found a fundamental right to same-sex marriage somewhere in the due process clause, in a manner similar to how it found a right to abortion. --- I disagree with their "interpretation" of the Constitution, but it is not legislation. Were it legislation, it could be overturned by Congress with more legislation.
A Supreme Court holding on a constitutional issue can only be changed by a constitutional amendment or by the Court itself revisiting the issue in a subsequent case. There can be no appeal of the decided case.
#71. To: buckeroo, tpaine, nolu chan, All (#68)
The Bill of Rights or any Amendments are not exonerated from the legislative process, either; I assume you think the Bill of Rights are built on a bedrock or fixed foundation that is unshakable.
#72. To: A K A Stone, tpaine (#66)
Nolu chan is right on this one. It wouldn't be right morally. But it would follow the process laid out in the constitution.
Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.
#73. To: tpaine (#70)
Your lengthy postings of opinions by other authorities are just that, --- opinions. They do not prove your case.
#74. To: SOSO, tpaine (#71)
The only rights that one has in the real world are the rights that one can defend.
#75. To: tpaine, tomder55 (#53)
The constitutionality of the 18th was challenged in 1920. The SCOTUS declined to issue an opinion on that specific issue, and left it at that, whereupon damn near everyone ignored the 'amendment, until it was repealed.
In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.
The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes.
This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root.
1. Eighteenth Amendment, with respect to its subject-matter, held within the power to amend given by article 5, and valid.
#76. To: A K A Stone, nolu chan, Y'ALL (#66)
Nolu chan is right on this one.
It wouldn't be right morally. But it would follow the process laid out in the constitution.
Remember the constitution isn't perfect. It is man made and contains flaws. --- It is worth protecting.
#77. To: buckeroo (#68)
I assume you think the Bill of Rights are built on a bedrock or fixed foundation that is unshakable.
#78. To: tpaine (#76)
I think we have an unalienable right to keep and bear arms. -- I see nothing in the Constitution itself that says we could amendment away that right.
The Constitutional Amendment Process
From: http://www.archives.gov/federal-register/constitution/
#79. To: nolu chan (#73)
Nolu Chan -- The Court majority found a fundamental right to same-sex marriage somewhere in the due process clause, in a manner similar to how it found a right to abortion. --- I disagree with their "interpretation" of the Constitution, but it is not legislation. Were it legislation, it could be overturned by Congress with more legislation.
A Supreme Court holding on a constitutional issue can only be changed by a constitutional amendment or by the Court itself revisiting the issue in a subsequent case. There can be no appeal of the decided case.
Your posting your wingnut nonsense certainly does not prove your point.
#80. To: tpaine (#76)
I see nothing in the Constitution itself that says we could amendment away that right.
#81. To: tpaine (#77)
buckeroo: I assume you think the Bill of Rights are built on a bedrock or fixed foundation that is unshakable.
increasing incredible fascism in America, what makes you think there is any safety about our personal dignity or rights anymore?
#82. To: tpaine (#79)
Your pejorative comments lead me to believe you want to end this discussion in a flame war. -- No thanks...
#83. To: tpaine, nolu chan (#79)
Supreme Court holding on a constitutional issue can only be changed by a constitutional amendment or by the Court itself revisiting the issue in a subsequent case. There can be no appeal of the decided case.
#84. To: All, tpaine, Deckard (#81)
#85. To: buckeroo (#74)
But the second amendment (as all amendments) are only reliable and trustworthy as the people and the representative government that is voted by the people.
#86. To: tpaine, nolu chan (#83)
#87. To: Liberator, tpaine (#9)
Chan is only the bearer of bad (obvious) news. Don't kill the messenger.
#88. To: tpaine (#0)
#89. To: nolu chan (#75)
This claim is false, as previously explained thoroughly on the other thread.
The question was not before the court to determine the constitutionality of the 18th Amendment.
An amendment cannot be unconstitutional.
Counsel did not argue the the amendment was unconstitutional, he argued that, due to its content, it was ordinary legislation and not an amendment at all. And, as ordinary legislation, the court had the authority to strike it down, according to this creative argument. Trust tpaine to bloviate endlessly about crap he has not seen or read.
#90. To: SOSO (#85)
Actually not even that as the recent Supreme Court decisions prove.
#91. To: SOSO, tpaine (#86)
BTW, what does the Consitution say about the involuntary removal of a Supreme Court judge?
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
#92. To: buckeroo (#90)
The US Supreme Court can not strike down an amendment.
#93. To: nolu chan (#91)
In 1804, the Senate held an impeachment trial for U.S. Supreme Court Justice Samuel Chase. He was not convicted.
#94. To: nolu chan (#87)
I replied with an example of such an Amendment and asked how it could be struck down. ---- I did not advocate for such an Amendment, but only observed that the people, as the sovereigns, have the power to do it.
I would advocate for an amendment strengthening the RKBA and 2nd Amdt. -- What would prevent an amendment taking away the RKBA today would be the requirement of getting 38 states to ratify it.
#95. To: SOSO (#92)
They don't have to strike it down. What would have happened if SCOTUS ruled the other way against the various City and State laws resticting gun ownership by implementing extremely onerous, if not practically impossible, permiting requirements?
#96. To: SOSO, nolu chan (#71)
The only rights we have in the real world are those rights we can defend.
#97. To: tpaine (#89)
The constitutionality of the 18th was challenged in 1920. The SCOTUS declined to issue an opinion on that specific issue, and left it at that, whereupon damn near everyone ignored the 'amendment, until it was repealed.
[385] Conclusions of the Court
1. Eighteenth Amendment, with respect to its subject-matter, held within the power to amend given by article 5, and valid.
#98. To: tpaine (#94)
It's unfortunate you didn't revise your comments over on the other thread, isn't it..
#99. To: Vicomte13, nolu chan (#96)
And THAT is really determined, first and foremost, by whether anybody can prove you did it before a tribunal.
#100. To: SOSO (#93)
(Edited)
Who presided?
#101. To: nolu chan (#98)
No. It led you to make an ass of yourself.
#102. To: Vicomte13, nolu chan, buckeroo (#96)
And THAT is why all liberty ultimately repose in the rules of evidence
#103. To: nolu chan (#100)
Who presided?
#104. To: SOSO (#102)
#105. To: Vicomte13 (#104)
But they are still bound by the rules of evidence, and if they ignore procedure in their rush to judgement, they are subject to multiple levels of review.
#106. To: SOSO (#105)
#107. To: tpaine (#61)
#108. To: SOSO (#103)
I thought impeachment hearings had to be presided over by the Chief Justice. Was that not always the case?
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
#109. To: tpaine (#101)
It's unfortunate you didn't revise your comments over on the other thread, isn't it..
#110. To: tpaine, Liberator (#40)
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Stahl argues that the sixteenth amendment was never ratified by the requisite number of states because of clerical errors in the ratifying resolutions of the various state legislatures and other errors in the ratification process. He further argues that Secretary of State Knox committed fraud by certifying the adoption of the amendment despite these alleged errors. Secretary of State Knox certified that the sixteenth amendment had been ratified by the legislatures of thirty-eight states, two more than the thirty-six then required for ratification. His certification of the adoption of the amendment was made pursuant to Section 205 of the Revised Statutes of the United States which provided:
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