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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: nolu chan contends an amendment to repeal the 2nd Amdt could be passed Source: LF URL Source: [None] Published: Jul 9, 2015 Author: tpaine Post Date: 2015-07-09 10:39:45 by tpaine Keywords: None Views: 80000 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 The second article of amendment is hereby repealed.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? Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Comments (1-186) not displayed.       .       .       . #187. To: Gatlin (#174) I think the correct analogy would be "amuses the hell out of them". Some people do have a morbid sense of humor to feed their abnormally that is susceptible to being characterized by gloomy or unwholesome feelings….they are often referred to as “Sickos.” We seen to have a goodly number of those around here. I find him amusing cause he just never learns and you find him amusing because you think he pisses people off, you think he takes after you and that's why you support him. So doesn't that mean that you're also describing yourself?? “Political correctness is a doctrine, fostered by a delusional, illogical minority, and rapidly promoted by mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end.â€� CZ82  posted on  2015-07-12   8:43:51 ET  Reply   Trace   Private Reply   #188. To: nolu chan, poor thing, uses JR for support. (#186) You poor thing. Jim Rob would not take your abuse report seriously. You poor thing, trying to imply that filing 'abuse reports' at that time on FR meant attempting to get someone banned. --- Hell, for a while there, it was the sites sport, as everyone competed to see who could get the mods to 'delete' your opponents personally offensive remarks. To my knowledge, NONE of my opponents were ever banned for anything I posted. Quite the opposite actually occurred. tpaine  posted on  2015-07-12   11:29:26 ET  Reply   Trace   Private Reply   #189. To: tpaine (#188) To my knowledge, NONE of my opponents were ever banned for anything I posted. Quite the opposite actually occurred. http://www.freerepublic.com/focus/f-chat/650379/posts?page=29#29 To: Eagle Eye I understand your frustration, believe me. -- But get this: --- I was once suspended for a week for 'abusing abuse'. When abuse first came in, it was 'abused'. By a lot of us. -- I was the first to be honored to know it was to be verboten, -- at a mods discretion.] 29 posted on 3/20/2002, 6:47:15 PM by tpaine Damn. How many times did you have to hit the abuse button to get suspended for a week for abusing abuse? nolu chan  posted on  2015-07-13   14:03:04 ET  Reply   Trace   Private Reply   #190. To: nolu chan, trying to prove his point by citing JR at FR (#189) To my knowledge, NONE of my opponents were ever banned for anything I posted. Quite the opposite actually occurred. And for proof, read the thread below, cited by Chan. www.freerepublic.com/focu...t/650379/posts?page=29#29 To: Eagle Eye I understand your frustration, believe me. -- But get this: --- I was once suspended for a week for 'abusing abuse'. When abuse first came in, it was 'abused'. By a lot of us. -- I was the first to be honored to know it was to be verboten, -- at a mods discretion.] 29 posted on 3/20/2002, 6:47:15 PM by tpaine Damn. How many times did you have to hit the abuse button to get suspended for a week for abusing abuse? If you really read the thread you would know, --- not many.. ---- At this point in my FR 'career', JR was really on my case, and working himself up to permanently banning a number of us 'disruptors'. Which he eventually did... I urge anyone to read the whole thread for context. It was a very fun time for most of us at FR ---- Except for JR and his band of sick sycophants. tpaine  posted on  2015-07-13   17:09:12 ET  Reply   Trace   Private Reply   #191. To: tpaine (#190) I urge anyone to read the whole thread for context. It was a very fun time for most of us at FR ---- Except for JR and his band of sick sycophants. http://www.freerepublic.com/focus/f-chat/650379/posts tpaine vanity whine 'Flame war' or Constitutional debate? vanity ^ | 3/20/02 | tpaine Posted on 3/20/2002, 4:46:13 PM by tpaine On the afternnoon of 3/18 Texaggie79 and I got into a type of discussion that is becoming all too common at FR. In an effort to defend his position as a drug warrior, tex decided to attack the motives of his percieved enemies, 'the libertarians'. --- Here is that thread: Cannabis Cafes Set To Open All Around Britain As Law Changes Address:http://www.freerepublic.com/focus/news/648477/posts?q=1&&page=201 Posts #205/206 are one of our more typical exchanges. -- Shortly after our disagreement ended, -- on that thread. Later that same evening, I had just responded to a concealed carry question at #15, - on this thread: Sheriff says 'gun nut' concealing the truth Address:http://www.freerepublic.com/focus/news/648911/posts ---- When my correspondent asked if I was still 'harrassing' texaggie. --- I denied any such intent, -- and Tex immediately posted the URL of the cannibus tread as his 'proof' of being harrassed. Thus, Tex set off another 'flame war' between us on the same subject as the previous post. Eventually, others on the thread protested his hijack of the thread. -- In response, I tried to show that texaggies constitutional position was not only against drugs, but could also be applied against guns. -- Just as this point was about to be established, -- the anonomods decided that tex & I were having a 'flamewar' . 'They' - [JR?] -- suspended tex & I for 24 hrs, --- while we were in mid-discussion of a constitutional issue on gun control. No one was violating any socalled forum 'rules' at that point, in my estimation. I'd like to protest this rather silly form of censorship. -- Tex & I were hurting no one but each other with our exchange. And for the umteenth time, I'd like to call for a better definition of the posting guidlelines, and for some sort of accountability from the capracious acts of the anonomods. I won't hold my breath for a reasonable answer. -- And please, -- spare me any more snide whine n' cheese remarks. ---- I, and many others, are well aware that the FR-PTB don't give a damn about dissenting opinions.. TOPICS: Cheese, Moose, Sister; Free Republic Policy/Q&A; Humor KEYWORDS: Navigation: use the links below to view more comments. first 1-50, 51-100, 101-125 next last 1 posted on 3/20/2002, 4:46:13 PM by tpaine http://www.freerepublic.com/focus/f-chat/650379/posts?page=17#17 To: tpaine You should be flamed just for starting a whole bleeping thread for your edification. What was wrong with leaving your WOD battle where it was? Gotta have a thread with your name on the top or something? I don't care that you posted this turkey in cheese-ville. 17 posted on 3/20/2002, 5:55:00 PM by Cyber Liberty http://www.freerepublic.com/focus/f-chat/650379/posts?page=24#24 To: tpaine And you with there wondering why "discussions" with you always turn to flame-fests. You are either stupid or just self-absorbed to the point that you have no idea how ridiculous you look. Buh bye. I have some hot dogs to go steam. 24 posted on 3/20/2002, 6:08:38 PM by Cyber Liberty http://www.freerepublic.com/focus/f-chat/650379/posts?page=29#29' To: Eagle Eye I understand your frustration, believe me. -- But get this: --- I was once suspended for a week for 'abusing abuse'. When abuse first came in, it was 'abused'. By a lot of us. -- I was the first to be honored to know it was to be verboten, -- at a mods discretion.] 29 posted on 3/20/2002, 6:47:15 PM by tpaine Damn. How many times did you have to hit the abuse button to get suspended for a week for abusing abuse? = = = = = = = = = = A tpaine victory http://www.freerepublic.com/focus/f-chat/650379/posts?page=36#36 To: tpaine You and Tex completely ruined that thread. You dragged in an unrelated ongoing argument and ended up taking the thread completely off topic. What was particularly galling was that you continued your flame war even after Mr. March, the subject of the article, made an appearance on the thread and even went as far as asking you to stop. You pissed him off so bad that now he is banned for using vulgar language. 36 posted on 3/20/2002, 7:35:31 PM by Sandy http://www.freerepublic.com/focus/f-chat/650379/posts?page=37#37 To: Sandy I was about to respond [belatedly, I admit] to him, and offer encouragement, etc, when he blew up. I am sorry that you think, -- that I was at fault beyond that. -- I don't see it that way at all. I'm responsible for what I actually do or say. - Not for anyones perceived opinions about my actions. 37 posted on 3/20/2002, 8:03:49 PM by tpaine http://www.freerepublic.com/focus/f-chat/650379/posts?page=40#40">http://www.freerepublic.com/focus/f-chat/650379/posts?page=40#40 To: tpaine I'll ask John to start a new topic called "Whine and Cheese" just for you. Thanks, Jim 40 posted on 3/20/2002, 9:33:42 PM by Jim Robinson And the unanswered question remains, How many times did you have to hit the abuse button to get suspended for a week for abusing abuse? And you were obviously referring to your antics on yet some previous thread. nolu chan  posted on  2015-07-13   20:19:54 ET  Reply   Trace   Private Reply   #192. To: nolu chan (#191) 13/14 years ago, I posted: --- -- the anonomods decided that tex & I were having a 'flamewar' . 'They' - [JR?] -- suspended tex & I for 24 hrs, --- while we were in mid- discussion of a constitutional issue on gun control. No one was violating any socalled forum 'rules' at that point, in my estimation. I'd like to protest this rather silly form of censorship. -- Tex & I were hurting no one but each other with our exchange. And for the umteenth time, I'd like to call for a better definition of the posting guidlelines, and for some sort of accountability from the capracious acts of the anonomods. I won't hold my breath for a reasonable answer. -- And please, -- spare me any more snide whine n' cheese remarks. ---- I, and many others, are well aware that the FR-PTB don't give a damn about dissenting opinions. 1 posted on 3/20/2002, 4:46:13 PM by tpaine Shortly after, I received this post from JR.. To: tpaine --- I'll ask John to start a new topic called "Whine and Cheese" just for you. Thanks, Jim ----- 40 posted on 3/20/2002, 9:33:42 PM by Jim Robinson And, if memory serves, JR suspended me for another short period, right after that.. And the unanswered question remains, How many times did you have to hit the abuse button to get suspended for a week for abusing abuse? I answered, just above, that I have no idea 'how many times'. -- Look it up if it's important to you. -- That seems to be your major obsession the last few days, trying to convict be of some 'crime' over at FR, 13 years ago. Get a life. Find a new hobby. -- Or rave on, and continue your obsessive- compulsive behaviour. It's becoming funny/weird. tpaine  posted on  2015-07-13   20:52:16 ET  Reply   Trace   Private Reply   #193. To: tpaine (#192) Get a life. Find a new hobby. -- Or rave on, and continue your obsessive- compulsive behaviour. It's becoming funny/weird. http://libertypost.org/cgi-bin/readart.cgi?ArtNum=349961&Disp=10#C10 #10. To: sysadmin, gatlin, Y'ALL (#5) I also thank TC for his contributions to help improve LP. I noticed he tried to talk some common sense to a couple of stalkers and agitators to have them see the error in their ways. I doubt it worked and I will not know since I have them on bozo. Gatlin There was an article TPR recently posted purely to instigate a flame war. I pinged you with a request to move it to the Biker Bar. --- Gatlin I saw that and fixed the title accordingly. TPR has been warned that one more incident and he's busted down to a lower posting level. --- sysadmin Gatlin keeps posting barely disguised remarks referring to me as a "stalker" purely to instigate a flame war. I'm pinging you with a request to give him a warning. tpaine posted on 2015-01-06 18:47:32 ET http://libertypost.org/cgi-bin/readart.cgi?ArtNum=349961&Disp=16#C16 #16. To: Palmdale, sysadmin, Y'ALL (#14) Palmdale keeps posting barely disguised silly words referring to me as "pt/tp" purely to instigate a flame war. I'm pinging you with a request to give him a warning. Pthe tpoor ptattle ptale... ---- Palmdale tpaine posted on 2015-01-06 19:09:14 ET http://libertypost.org/cgi-bin/readart.cgi?ArtNum=349961&Disp=17#C17 #17. To: tpaine, Palmdale, All (#16) Palmdale keeps posting barely disguised silly words referring to me as "pt/tp" purely to instigate a flame war. I'm pinging you with a request to give him a warning. If I were to start issuing formal warnings to every person here who uses "silly words" in their comments I'd have time for nothing else. People make fun of each other and call each other names here at least a dozen times before breakfast and it continues throughout the day. It is part and parcel of political debate even face-to-face in many instances, and it is very easy to fall into that habit when dealing with anonymous, faceless opponents online. (Frankly I believe in most cases the people doing the name calling are saying more about themselves than the persons being targeted.) However, I will keep an eye out for reports of anything that rises to the level of being truly objectionable. As always, if you guys (or anyone else) really want to get into it with each other that's no skin off my nose but please take it to the Biker Bar where it belongs. sysadmin posted on 2015-01-06 20:39:31 ET http://libertypost.org/cgi-bin/readart.cgi?ArtNum=349961&Disp=18#C18 #18. To: sysadmin (#17) Sorry about the silly words. I'll try to be less of a tpettifogger starting at some unspecified date in the near future. Palmdale posted on 2015-01-06 20:48:34 ET http://libertypost.org/cgi-bin/readart.cgi?ArtNum=349961&Disp=19#C19 #19. To: Palmdale (#18) Sorry about the silly words. I'll try to be less of a tpettifogger starting at some unspecified date in the near future. OK, thanks -- just don't graduate to silly walks or we'll be in real trouble! sysadmin posted on 2015-01-06 20:57:28 ET http://libertypost.org/cgi-bin/readart.cgi?ArtNum=349961&Disp=20#C20 #20. To: tpaine (#16) To: Palmdale, sysadmin, Y'ALL Palmdale keeps posting barely disguised silly words referring to me as "pt/tp" purely to instigate a flame war. I'm pinging you with a request to give him a warning. Pthe tpoor ptattle ptale... ---- Palmdale You are just insufferable. Stop whining. SOD posted on 2015-01-06 21:21:18 ET Everybody else tries to instigate flame wars with you, but you remain resolute in keeping the peace. It's a tough job but somebody has to do it. nolu chan  posted on  2015-07-13   21:07:36 ET  Reply   Trace   Private Reply   #194. To: nolu chan (#193) (Edited) Thank you for reposting those remarks. Obviously, I'm opposed by a lot of very unstable people who are very unhappy about them. Makes me proud. tpaine  posted on  2015-07-13   21:24:23 ET  Reply   Trace   Private Reply   #195. To: tpaine (#194) Thank you for reposting those remarks. Obviously, I'm opposed by a lot of very unstable people who are very unhappy about them. Makes me proud. Yes, everybody else is unstable. You poor baby. You accuse everyone of trying to start a flame war with you. On this thread you started your modus operandi at your #39 to TooConservative. You continued your modus operandi at your #79 to myself, nolu chan. I have been documenting your pulling this same stunt at this site and other sites. By doing it with me (again), you invited the rebuttal. Sometimes the truth hurts. I am not flaming you, I am coldly, almost robotically, destroying your whines. http://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=40732&Disp=39#C39 #39. To: TooConservative, Y'ALL (#8) 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, and that officials of the executive, legislative, and judicial branches of our various levels of gov'ts could give their opinions to that effect, and refuse to implement such and act, as per their oaths of office Do you contend that our only recourse from a majority passing amendments that take away our basic human rights is violence? - 'Treasonous' violence? - Civil war? Nolu is correct. Every portion of the Constitution can be amended. Or it could be abolished entirely. What a silly clickbait vanity thread. What a silly, click-baiting reply. -- Take your attempts to start a flame war elsewhere. tpaine posted on 2015-07-09 15:33:25 ET http://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=40732&Disp=79#C79 #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. We agree... 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. 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 posting your wingnut nonsense certainly does not prove your point. Your pejorative comments lead me to believe you want to end this discussion in a flame war. -- No thanks... tpaine posted on 2015-07-09 21:45:58 ET http://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=40732&Disp=82#C82 #82. To: tpaine (#79) Your pejorative comments lead me to believe you want to end this discussion in a flame war. -- No thanks... A flame war does not consist of mildly perjorative comments. I am expressing my disdain for your blather. nolu chan posted on 2015-07-09 21:55:09 ET http://www2.libertysflame.com/cgi-bin/readart.cgi?ArtNum=40732&Disp=89#C89 #89. To: nolu chan (#75) [...] 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.. tpaine posted on 2015-07-09 22:05:19 ET This is the #75 that you respond to by saying I want to end this discussion with a flame war. What you characterize as an entry in a flame war bears repeating to show your desperation. #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. 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: 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 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 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. The argument was characterized in W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, V1 XXX, No. 4, February 1921, p. 333. This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. [...] 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, 1. Eighteenth Amendment, with respect to its subject-matter, held within the power to amend given by article 5, and valid. 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. nolu chan  posted on  2015-07-09   21:35:57 ET  Reply   Trace   Private Reply   nolu chan  posted on  2015-07-14   1:10:14 ET  Reply   Trace   Private Reply   #196. To: nolu chan (#195) (Edited) Thank you for reposting those remarks. Obviously, I'm opposed by a lot of very unstable people who are very unhappy about them. Makes me proud. Yes, everybody else is unstable. What can I say? -- You're certainly overwrought, as evidenced by your last reply.. You poor baby. You accuse everyone of trying to start a flame war with you. On this thread you started your modus operandi at your #39 to TooConservative.--- You continued your modus operandi at your #79 to myself, nolu chan. Who's acting like a poor baby? You are kiddo. I have been documenting your pulling this same stunt at this site and other sites. By doing it with me (again), you invited the rebuttal. Sometimes the truth hurts. I am not flaming you, I am coldly, almost robotically, destroying your whines. Whatever.... But do tell us more about your robotic fantasies.... tpaine  posted on  2015-07-14   1:33:04 ET  Reply   Trace   Private Reply   #197. To: tpaine (#196) Thank you for reposting those remarks. Obviously, I'm opposed by a lot of very unstable people who are very unhappy about them. But do tell us more about your robotic fantasies.... If you insist on more stories about your legal acumen and the pride you take in your posting history, I am compelled to comply. When Legal Giants Collide http://www.freerepublic.com/focus/news/802290/posts?page=133#133 To: bvw Homosexual sodomy is a criminal act This is absolute lunacy. In order for there to be a crime, someone must be injured by either force or fraud. Period. Otherwise no crime has been committed. 133 posted on 12/6/2002, 10:25:27 PM by Jonathon Spectre http://www.freerepublic.com/focus/news/802290/posts?page=211#211 To: Illbay Jonathon Spectre said: "In order for there to be a crime, someone must be injured by either force or fraud. Period." False. Period. 193 - roscoe Give JS & I an example of a 'criminal' act we could commit upon *you*, roscoe, -- that would injure you without using force or fraud. - Can you? 196 posted on 12/07/2002 1:05 PM PST by tpaine Sure. You could open a crack house in my neighborhood. How am I defrauded? How am I forced? 209 - illb Hmmm, - I open a 'bootleg' party house in your neighborhood. Unless I'm really stupid, and let my customers disturb the peace, you wouldn't even know we were there, correct? Unless we create a disturbance/cause harm, there is no criminal action committed to affect *you*, billy. -- But if the peace of the neighborhood is being disturbed, you are being *forced* to contend with an undesireable situation, and if it continued your property could also lose value, -a type of *fraud*. - You would have lawful recourse for your injuries. 211 posted on Saturday, December 07, 2002 17:33:37 by tpaine Let's see, disturbing the peace is a form of fraud. Only in tpaineworld. Give JS & I an example of a 'criminal' act we could commit upon *you*, roscoe, -- that would injure you without using force or fraud. I prefer to give examples of what could be done to yukon tpaine without using force or fraud. You could have your pocket picked. You could be plagiarized, but can think of no reason why anyone would. Your second greatest admirer kills you in your sleep to stop the incessant whine (he later gets off on jury nullification). Unaware that you are dead, your greatest admirer comes along and shoots you sixteen times, remarkably with 16 hits that would have been fatal if you had not already been dead. One cannot really injure a dead person, but your greatest admirer has committed a crime. In tpaineworld, how does one commit a crime against another person, with or without violence? You could always violate the laws of nature. nolu chan  posted on  2015-07-14   12:40:07 ET  Reply   Trace   Private Reply   #198. To: nolu chan (#197) --- I am compelled to comply. You reAlly are going off the deep end with your last post, my boy. I'd recommend a mental health counselor, but I don't know any. Please, get help. I'm sorry that you feel I've driven you to this compulsion... tpaine  posted on  2015-07-14   14:21:24 ET  Reply   Trace   Private Reply   #199. To: tpaine (#198) You reAlly are going off the deep end with your last post, my boy. I'd recommend a mental health counselor, but I don't know any. That one way to avoid admitting that you do not any more clue about criminal law than you do about constitutional law. You don't even know what I was talking about, you are that incompetent. nolu chan  posted on  2015-07-14   14:38:23 ET  Reply   Trace   Private Reply   #200. To: nolu chan (#199) That one way to avoid admitting that you do not any more clue about criminal law than you do about constitutional law. You don't even know what I was talking about, you are that incompetent. Your mistaken opinions about my character have been noted and you are entitled to them, but you really should lighten up, for your own mental health.. I've disputed your opinions about our Constitution. You really should try to live with the possibility that your education (in some politically correct law school?) may be flawed.. But in any case, it is not the end of the world when someone disputes what you INSIST are the way things MUST be. And believe me, I really am concerned about your compulsive and repetitive posts. Please, get help... tpaine  posted on  2015-07-14   15:24:23 ET  Reply   Trace   Private Reply   #201. To: tpaine (#200) Your mistaken opinions about my character have been noted and you are entitled to them, but you really should lighten up, for your own mental health.. That's one way to avoid admitting that you do not any more clue about criminal law than you do about constitutional law. You don't even know what I was talking about, you are that incompetent. http://www.freerepublic.com/focus/news/802290/posts?page=224#224 To: Roscoe; Illbay; bvw bvw: Other than you and young Sprout's own imaginations and wanna-be-ism can you give any historical support for your novel definition of crime? No, he can't. 218 - roscoe lies - My comments at #211 stand unrefuted by you three clowns, -- and now, to divert attention away from that fact, you claim that victimless 'crime' law is historically justified. -- This nations constitution was written in an attempt to correct such historical injustice. You boys, and your weird opinions on constitutional law are testimony that much work remains to educate americans on their own liberty. 224 posted on 12/8/2002, 1:59:56 PM by tpaine [ Post Reply | Private Reply | To 218 | View Replies] Unrefuted, indeed! Observing the Dean of the tpaine School of Law flail about in the dark is more fun than the typical TV sitcom. Nobody could possibly refute your scholarship at criminal law. Americans need to be educated oni the law and you, as leader of the Black Widows, are the one for the job. nolu chan  posted on  2015-07-14   21:32:49 ET  Reply   Trace   Private Reply   #202. To: nolu chan (#201) How weird that you pick 'Roscoe' for your hero. --- But that's fine. --- Just another example of how overwrought and unstable you've become. I still don't understand just what disturbs you so.. The mere fact that we disagree about the constitutionality of amending away our basic human rights, -- shouldn't have set you off to this extent. Please nolu, tell us what is really bothering you...If you can.. tpaine  posted on  2015-07-14   23:04:23 ET  Reply   Trace   Private Reply   #203. To: tpaine (#202) Please nolu, tell us what is really bothering you...If you can.. Nothing. I am having a good time laughing at your helplessness. You can only try to divert attention from the fact that you are unable to understand why your comments on criminal law are so absurd. Your legal acumen was accurately assessed years ago by dpa5923. Your lack of understanding of criminal law is almost criminal. http://www.freerepublic.com/focus/news/1907774/posts?page=177#177 To: tpaine; Kevmo Do not take up law as a profession. Your lack of understanding of basic principles of constitution or common law is almost criminal. It would definitely be grounds for malpractice if you ever tried to present such flawed arguments in a court of law. Before I call this issue dead, I feel I must address this though... You invited me on your property to do business. My concealed weapon does not make me a trespasser. If I invite you on my property with the stipulation that you must not be armed and you are indeed armed without my consent, then you have entered my property without my consent (my consent was conditional on you not being armed) and you would be a trespasser. If I make no mention of such a condition you would not be trespassing until I tell you that you cannot be on my land with weapons and you refused to leave. That's the law (which does not contradict the US Constitution) 177 posted on 10/13/2007, 5:07:03 PM by dpa5923 nolu chan  posted on  2015-07-14   23:16:46 ET  Reply   Trace   Private Reply   #204. To: nolu chan (#203) I still don't understand just what disturbs you so.. The mere fact that we disagree about the constitutionality of amending away our basic human rights, -- shouldn't have set you off to this extent. Please nolu, tell us what is really bothering you...If you can.. Nothing. I am having a good time laughing at your helplessness. Me? Helpless? Dream on boy. You can only try to divert attention from the fact that you are unable to understand why your comments on criminal law are so absurd. You keep repeating your mistaken opinions and attempt to prove them by digging up old threads from FR. --- Do you really imagine this silly tactic is working? Your legal acumen was accurately assessed years ago by dpa5923. Your lack of understanding of criminal law is almost criminal. www.freerepublic.com/focu...907774/posts?page=177#177 Thanks again for the link. I urge anyone to read the thread for context. tpaine  posted on  2015-07-14   23:43:25 ET  Reply   Trace   Private Reply   #205. To: tpaine (#204) [tpaine #200] I've disputed your opinions about our Constitution. You really should try to live with the possibility that your education (in some politically correct law school?) may be flawed.. I see that you have entered your excuse making phase to explain why you are incapable of discerning what is so boneheaded about your discussion of criminal law quoted in my #197 and #201. Your abject lack of legal knowledge, i.e. not knowing what you were talking about, now leaves you helpless to to do anything but bluster and bloviate. It is fun to watch. While I have not claimed to be a lawyer, you allusion to my purported politically correct law school education is your way of explaining why your own knowledge of law is revealed to be so deficient. It is a crutch to explain the boneheaded nature of your discussion of criminal law. [tpaine #202] Please nolu, tell us what is really bothering you...If you can.. [tpaine #204] Please nolu, tell us what is really bothering you...If you can.. Asked and answered at my #203, "Nothing. I am having a good time laughing at your helplessness." Your legal acumen was accurately assessed years ago by dpa5923. Your lack of understanding of criminal law is almost criminal. http://www.freerepublic.com/focus/news/1907774/posts?page=177#177 Thanks again for the link. I urge anyone to read the thread for context. Oh, that's alright, I'll repeat the context. It was that "[y]our lack of understanding of basic principles of constitution or common law is almost criminal. It would definitely be grounds for malpractice if you ever tried to present such flawed arguments in a court of law." To: tpaine; Kevmo Do not take up law as a profession. Your lack of understanding of basic principles of constitution or common law is almost criminal. It would definitely be grounds for malpractice if you ever tried to present such flawed arguments in a court of law. Before I call this issue dead, I feel I must address this though... You invited me on your property to do business. My concealed weapon does not make me a trespasser. If I invite you on my property with the stipulation that you must not be armed and you are indeed armed without my consent, then you have entered my property without my consent (my consent was conditional on you not being armed) and you would be a trespasser. If I make no mention of such a condition you would not be trespassing until I tell you that you cannot be on my land with weapons and you refused to leave. That's the law (which does not contradict the US Constitution) 177 posted on 10/13/2007, 5:07:03 PM by dpa5923 As for your general legal acumen, the following is a fun example: http://libertypost.org/cgi-bin/readart.cgi?ArtNum=204789&Disp=30#C30 #30. To: robertpaulsen, tolsti, yall (#28) [...] It is correct to state that the right to life is an inalienable right that man cannot take away. The right to self defense is part of that inalienable right to life. Everyone has it. A four-year-old has it. A prisoner has it. An illegal alien has it. A foreign visitor has it. An insane person has it. It is then argued that our inalienable right to self defense does not include using a gun because if it did, then the aforementioned group would have the right to use one and they don't; -- which is faulty logic. If any of the above group use a weapon of any type in self defense, a fully informed jury, judging both the facts and the law of the case at hand [self defense] would be duty bound to rule the defendant innocent. Case closed. [to those with logical, open minds] tpaine posted on 2007-10-30 9:08:50 ET In tpaineworld, certified lunatics have the inalienable right to keep and bear arms. And to deposit their turds of thought upon the internet. I prefer to print them out, cut them into 4-inch squares, and store them in the little reading room to see if any of tpaine's inspired wisdom will rub off. Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. As per tpaine, "the right to life is an inalienable right that man cannot take away," I suppose the capital crime cited in the Constitution must refer to a crime committed in Washington, D.C. As for the certified insane having a right to keep and bear arms, some people should not be allowed to keep and bear keyboards. nolu chan  posted on  2015-07-15   15:01:39 ET  Reply   Trace   Private Reply   #206. To: nolu chan, continues reposting old threads, in an obsessive effort to 'win' something? (#205) tpaine #200] I've disputed your opinions about our Constitution. You really should try to live with the possibility that your education (in some politically correct law school?) may be flawed.. »I see that you have entered your excuse making phase to explain why you are incapable of discerning what is so boneheaded about your discussion of criminal law quoted in my #197 and #201. Your abject lack of legal knowledge, i.e. not knowing what you were talking about, now leaves you helpless to to do anything but bluster and bloviate. It is fun to watch. --- While I have not claimed to be a lawyer, you allusion to my purported politically correct law school education is your way of explaining why your own knowledge of law is revealed to be so deficient. It is a crutch to explain the boneheaded nature of your discussion of criminal law. Thanks for finally admitting you are not a lawyer, arguing as an authority. -- Thus, your opinions are just that, opinions. I and many others, both here and on other forums, have rejected some of your opinions, as your links to FR and LP have proved. Thanks again do posting them.. As for your general legal acumen, the following is a fun example: libertypost.org/cgi- bin/r...ArtNum=204789&Disp=30#C30 #30. To: robertpaulsen, tolsti, yall (#28) [...] It is correct to state that the right to life is an inalienable right that man cannot take away. The right to self defense is part of that inalienable right to life. Everyone has it. A four-year-old has it. A prisoner has it. An illegal alien has it. A foreign visitor has it. An insane person has it. It is then argued that our inalienable right to self defense does not include using a gun because if it did, then the aforementioned group would have the right to use one and they don't; -- which is faulty logic. If any of the above group use a weapon of any type in self defense, a fully informed jury, judging both the facts and the law of the case at hand [self defense] would be duty bound to rule the defendant innocent. Case closed. [to those with logical, open minds] tpaine posted on 2007-10-30 9:08:50 ET In tpaineworld, certified lunatics have the inalienable right to keep and bear arms. And to deposit their turds of thought upon the internet. I prefer to print them out, cut them into 4-inch squares, and store them in the little reading room to see if any of tpaine's ----- Yada yada, --- on you go with your silly effort to prove something, -- any damn thing... Again, I urge everyone who is still interested in this discussion to read at leastcthe last portions of the thread nolu posted. Both he and robertpaulsen slink away from the argument, in defeat. tpaine  posted on  2015-07-15   16:07:07 ET  Reply   Trace   Private Reply   #207. To: tpaine (#206) It's like rock 'n' roll, the hits just keep on coming. Continuing to review your legal incompetence, Thanks for finally admitting you are not a lawyer, arguing as an authority. -- Thus, your opinions are just that, opinions. Any claim to be a lawyer by an internet handle is meaningless. Citations to and quotes of competent legal authority are not. My quotes and citations outweigh your brain farts, such as your still hilarious about what acts do, or do not, constitute a crime of one person against another person. It is correct to state that the right to life is an inalienable right that man cannot take away. Amendment V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless...." It is correct to state that the DoI, a political statement, refers to inalienable rights, such as the right to liberty and the pursuit of happiness, except for their slaves, and the inalienable right to life. It is correct to state that the DoI has never been adopted as the law of any jurisdiction. The paramount law of the United States explicitly provides for capital punishment. While you maintain that the right to life is an inalienable right that man can not take away, the law of the land provides for executions. The several states and the United States have executed man and woman, using such methods as firing squad, hanging, electrocution, gas chamber, and lethal injection. The objects of the exercise found their supposed inalienable right was quite alienable. If any of the above group use a weapon of any type in self defense, a fully informed jury, judging both the facts and the law of the case at hand [self defense] would be duty bound to rule the defendant innocent. Of course, the person ineligible to possess a weapon, or if the weapon was unlawful to possess, would be guilty of illegal possession of a weapon. The right to self-defense does not authorize unlawful possession of a weapon. In the Bernhard Goetz case, he was found not guilty of four counts of attempted murder, three counts of assault in the first degree, but was found guilty of criminal possession of a weapon in the third degree (N.Y.P.L. 265.02). Goetz served time as a result of the criminal conviction. People v Pons, Ct App NY, 68 NY2d 264, 266 (1986) In People v Almodovar (62 N.Y.2d 126, supra), where defendant was charged with counts of murder, assault and criminal possession of a weapon, we held that the court correctly refused to charge justification as a defense to criminal possession of a weapon, second degree. There, defendant claimed that he came into possession of the weapon by wresting control of it from the victim who had attacked him with a gun and a screwdriver. We concluded that "the only charge defendant was entitled to on the [possession] count of the indictment was temporary innocent possession" (id., at p 130) and that any benefit "he was entitled to because of the claim of self-defense pertained to the use of a weapon and he received that when the court charged justification in connection with the counts of attempted murder and assault" (id., at pp 130-131). Emphasizing that crimes involving possession of a weapon are distinct from those involving its use, we observed that once "the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime" (id., at p 130). Juries have consistently found the guilty party to be guilty, contrary to your baseless claim to the contrary. The right to self-defense does not infer a right to unlawful possession of a weapon. nolu chan  posted on  2015-07-16   16:26:17 ET  Reply   Trace   Private Reply   #208. To: nolu chan, continuing on with his strange obsession.. (#207) In tpaineworld, certified lunatics have the inalienable right to keep and bear arms. And to deposit their turds of thought upon the internet. I prefer to print them out, cut them into 4-inch squares, and store them in the little reading room to see if any of tpaine's ----- Yada yada, --- on you go with your silly effort to prove something, -- any damn thing... Again, I urge everyone who is still interested in this discussion to read at least the last portions of the last thread nolu posted. Both he and robertpaulsen slink away from the argument, in defeat. It's like rock 'n' roll, the hits just keep on coming. Continuing to review your legal incompetence, You imagine you're 'hitting' me? How idiotic, -- all you're doing is displaying your obsessive weirdness, by posting old threads on which you and I disagreed, most of which you left, unable to prove your points. You're acting like a real crazy guy on FR, 'Roscoe'.. Keep up the good work. tpaine  posted on  2015-07-16   16:52:43 ET  Reply   Trace   Private Reply   #209. To: tpaine (#208) At #208 yukon tpaine once again demonstrates his yukonesque to spew ad hominems and blather about imaginary victories when he cannot respond in substance because he has been shown, yet again, to not know what he is talking about, as with his fun debate about what does, or does not, constitute a crime by one person against another. Poor fella is still running and hiding like a trapped rat from that one. As for the inalienable right to life, yukon tpaine cannot explain the constitutional provision for capital crimes. The death penalty is in the Constitution, the purported inalienable right to life (or guns) is not. Inalienable rights are political rhetoric, not law. The capital crimes of the 5th Amdt and the attendant executions are law. It's like rock 'n' roll, the hits just keep on coming. Continuing to review your legal incompetence, You imagine you're 'hitting' me? How idiotic, Only yukon tpaine would consider rock 'n' roll hits to be people beating up on each other. It is a mark of his desperation. yukon tpaine has trouble explaining how his inalienable right to keep and bear arms by everyone asserts a right to keep and bear arms by lunatics, such as himself, and by prison inmates. Either the claimed right is inalienable or it is not. Use in self-defense does not excuse unlawful possession of a firearm or other weapon by anyone. I provide the specific case of Bernhard Goetz who served time for unlawful possession of a firearm, even though he was acquitted of all other charges in the subway shooting of four yoots. And I provide the court opinion in Pons. Faced with proof that his claims are bullcrap, yukon tpaine predictably blathers. tpaine responds to my #207 with the following quote, making believe it appears in my #207. I does not. In tpaineworld, certified lunatics have the inalienable right to keep and bear arms. And to deposit their turds of thought upon the internet. I prefer to print them out, cut them into 4-inch squares, and store them in the little reading room to see if any of tpaine's ----- This is the actual content of my #207 which so flattened his #206 that he cannot respond in substance but must make believe. It's like rock 'n' roll, the hits just keep on coming. Continuing to review your legal incompetence, Thanks for finally admitting you are not a lawyer, arguing as an authority. -- Thus, your opinions are just that, opinions. Any claim to be a lawyer by an internet handle is meaningless. Citations to and quotes of competent legal authority are not. My quotes and citations outweigh your brain farts, such as your still hilarious about what acts do, or do not, constitute a crime of one person against another person. It is correct to state that the right to life is an inalienable right that man cannot take away. Amendment V: "No person shall be held to answer for a capital, or otherwise infamous crime, unless...." It is correct to state that the DoI, a political statement, refers to inalienable rights, such as the right to liberty and the pursuit of happiness, except for their slaves, and the inalienable right to life. It is correct to state that the DoI has never been adopted as the law of any jurisdiction. The paramount law of the United States explicitly provides for capital punishment. While you maintain that the right to life is an inalienable right that man can not take away, the law of the land provides for executions. The several states and the United States have executed man and woman, using such methods as firing squad, hanging, electrocution, gas chamber, and lethal injection. The objects of the exercise found their supposed inalienable right was quite alienable. If any of the above group use a weapon of any type in self defense, a fully informed jury, judging both the facts and the law of the case at hand [self defense] would be duty bound to rule the defendant innocent. Of course, the person ineligible to possess a weapon, or if the weapon was unlawful to possess, would be guilty of illegal possession of a weapon. The right to self-defense does not authorize unlawful possession of a weapon. In the Bernhard Goetz case, he was found not guilty of four counts of attempted murder, three counts of assault in the first degree, but was found guilty of criminal possession of a weapon in the third degree (N.Y.P.L. 265.02). Goetz served time as a result of the criminal conviction. People v Pons, Ct App NY, 68 NY2d 264, 266 (1986) In People v Almodovar (62 N.Y.2d 126, supra), where defendant was charged with counts of murder, assault and criminal possession of a weapon, we held that the court correctly refused to charge justification as a defense to criminal possession of a weapon, second degree. There, defendant claimed that he came into possession of the weapon by wresting control of it from the victim who had attacked him with a gun and a screwdriver. We concluded that "the only charge defendant was entitled to on the [possession] count of the indictment was temporary innocent possession" (id., at p 130) and that any benefit "he was entitled to because of the claim of self-defense pertained to the use of a weapon and he received that when the court charged justification in connection with the counts of attempted murder and assault" (id., at pp 130-131). Emphasizing that crimes involving possession of a weapon are distinct from those involving its use, we observed that once "the unlawful possession of the weapon is established, the possessory crime is complete and any unlawful use of the weapon is punishable as a separate crime" (id., at p 130). Juries have consistently found the guilty party to be guilty, contrary to your baseless claim to the contrary. The right to self-defense does not infer a right to unlawful possession of a weapon. nolu chan  posted on  2015-07-17   15:06:28 ET  Reply   Trace   Private Reply   #210. To: tpaine (#208) Both he and robertpaulsen slink away from the argument, in defeat. tpaine only wishes I would slink away. I have left him hit from argument like a trapped rat. Whenever tpaine presents his clueless interpretations of the Constitution to an attorney, he is told that he is a fool. http://www.freerepublic.com/focus/f-news/1149329/posts?page=45#45 To: Congressman Billybob It is crystal clear that the Bill of Rights was written to restrain the power and reach of the federal government only. -Billybob- Your own words above confirm that you support the State of California's 'power' to prohibit assault weapons. Congressman Billybob wrote: I haven't said a word about California gun laws. I HAVE said that you are a fool for not understanding that the Constitution means what it says. The supremacy clause of Art VI says that the States are bound to honor our Constitution/BOR's. You are wrong in saying that States are not "restrained" by our BOR's; -- namely, the 2nd Amendment. Case closed. 45 posted on 6/8/2004, 12:24:43 AM by tpaine (The line dividing good and evil cuts through the heart of every human be" -- Solzhenitsyn) [ Post Reply | Private Reply | To 44 | View Replies] http://www.freerepublic.com/focus/f-news/1149329/posts?page=46#46 To: tpaine The only "case closed" is your inability to read and understand plain English used in the Constitution. You remain a fool. 46 posted on 6/8/2004, 12:31:09 AM by Congressman Billybob (www.ArmorforCongress.com Visit. Join. Help. Please.) [ Post Reply | Private Reply | To 45 | View Replies] Congressman Billybob, the late John Armor, was an attorney. nolu chan  posted on  2015-07-17   15:09:00 ET  Reply   Trace   Private Reply   #211. To: nolu chan (#210) In tpaineworld, certified lunatics have the inalienable right to keep and bear arms. And to deposit their turds of thought upon the internet. I prefer to print them out, cut them into 4-inch squares, and store them in the little reading room to see if any of tpaine's ---- Yada yada, --- on you go with your silly effort to prove something, -- any damn thing... Again, I urge everyone who is still interested in this discussion to read at least the last portions of the thread nolu posted, where both he and robertpaulsen slink away from the argument, in defeat. tpaine only wishes I would slink away. I have left him hit from argument like a trapped rat. Anyone can read the thread in question, wherein both you and Paulsen quit posting. Whenever tpaine presents his clueless interpretations of the Constitution to an attorney, he is told that he is a fool. Congressman Billybob, the late John Armor, was an attorney. Big deal. Most anyone on FR at that time could also testify that he was a big bag of wind.. --- Just as you experienced yourself.. Please continue your hissy fit display though.. It's really getting amusing.. tpaine  posted on  2015-07-17   17:00:57 ET  Reply   Trace   Private Reply   #212. To: tpaine (#211) Yada yada, --- on you go with your silly effort to prove something, -- any damn thing... Again, I urge everyone who is still interested in this discussion to read at least the last portions of the thread nolu posted, where both he and robertpaulsen slink away from the argument, in defeat. One will have to gain entry to tpaine's mind to find a place where anyone has ever slinked away from tpaine in defeat. Here on the tpaine vanity thread, he has been reduced to responding with "yada, yada, yada," because he is unable to debate the merits of his inane legal arguments, or the lack of such merts. So far, tpain has opined that the courts are wrong, the lawyers are wrong, anyone who disagrees with his nonsense is insane, and has cited imaginary comments. As he has been reduced to unintelligible spluttering, it is time for basic history lessons. Today's lesson is Judicial Review, as explained in the constitutional debates prior to ratification. Reality is readily found, tpaine's bloviations are unsupported. JUDICIAL REVIEW: Farrand and Elliot, Constitutional Debates Farrand's Records is a record of the Federal Constitutional Convention, in three volumes. Elliott's Debates is a record of the State Conventions on the Constitution in five volumes. 1 Farrand 21-22: [James Madison] 8. Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by of the members of each branch. 9. Resd. that a National Judiciary be established to consist of one or more supreme tribunals, and of inferior tribunals to be chosen by the National Legislature, to hold their offices during good behaviour; and to receive punctually at stated [22] times fixed compensation for their services, in which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution, that the jurisdiction of the inferior tribunals shall be to hear & determine in the first instance, and of the supreme tribunal to hear and determine in the dernier resort, all piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other States applying to such jurisdictions may be interested, or which respect the collection of the National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony. Note: dernier resort means last resort. - - - - - 1 Farrand 97: [Elbridge Gerry] (First) Clause (of Proposition 8th) relating to a Council of Revision taken into consideration. Mr. Gerry doubts whether the Judiciary ought to form a part of it [nc - a Council of Revision], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. - - - - - 2 Farrand 27: [Governeur Morris and Roger Sherman] (The next. —) "To negative all laws passed by the several States (contravening in the opinion of the Nat: Legislature the articles of Union, or any treaties subsisting under the authority of ye Union") Mr. Govr. Morris opposed this power as likely to be terrible to the States, and not necessary, if sufficient Legislative authority should be given to the Genl. Government. Mr. Sherman thought it unnecessary, as the Courts of the States would not consider as valid any law contravening the Authority of the Union, and which the legislature would wish to be negatived. - - - - - 2 Farrand 28: [James Madison] In R. Island the Judges who refused to execute an unconstitutional law were displaced, and others substituted, by the Legislature who would be willing instruments of the wicked & arbitrary plans of their masters. A power of negativing the improper laws of the States is at once the most mild & certain means of preserving the harmony of the system. - - - - - 2 Farrand 93: [James Madison] He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a Constitution. The former in point of moral obligation might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. 1. A law violating a treaty ratified by a preexisting law, might be respected by the Judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves, would be considered by the Judges as null & void. - - - - - 2 Elliott 131: [Samuel Adams] Your excellency's first proposition is, "that it be explicitly declared, that all powers not expressly delegated to Congress are reserved to the several states, to be by them exercised." This appears, to my mind, to be a summary of a bill of rights, which gentlemen are anxious to obtain. It removes a doubt which many have entertained respecting the matter, and gives assurance that, if any law made by the federal government shall be extended beyond the power granted by the proposed Constitution, and inconsistent with the constitution of this state, it will be an error, and adjudged by the courts of law to be void. - - - - - 2 Elliott 196: [Oliver Elsworth] If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. - - - - - 2 Elliott 443: [George Nicholas] Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people ; they have not parted with it; they have only dispensed such portions of power as were conceived necessary for the public welfare. This Constitution stands upon this broad principle. - - - - - 2 Elliott 445: [James Wilson] As far as I can understand the idea of magistracy in every government, this seems to be a proper arrangement; the judicial department is considered as a part of the executive authority of government. Now, I have no idea that the authority should be restricted so as not to be able to perform its functions with full effect. I would not have the legislature sit to make laws which cannot be executed. It is not meant here that the laws shall be a dead letter: it is meant that they shall be carefully and duly considered before they are enacted, and that then they shall be honestly and faithfully executed. This observation naturally leads to a more particular consideration of the government before us. In order, sir, to give permanency, stability, and security to any government, I conceive it of essential importance, that its legislature should be restrained; that there should not only be what we call a passive, but an active power over it for, of all kinds of despotism, this is the most dreadful, and the most difficult to be corrected. With how much contempt have we seen the authority of the people treated by the legislature of this state! and how often have we seen it making laws in one session, that have been repealed the next, either on account of the fluctuation of party, or their own impropriety. This could not have been the case in a compound legislature; it is therefore proper to have efficient restraints upon the legislative body. These restraints arise from different sources. I will mention some of them. In this Constitution, they will be produced, in a very considerable degree, by a division of the power in the legislative body itself. Under this system, they may arise likewise from the interference of those officers who will be introduced into the executive and judicial departments. They may spring also from another source — the election by the people; and finally, under this Constitution, they may proceed from the great and last resort — from the people themselves. I say, under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department. - - - - - 4 Elliott 553: [John Marshall] These, sir, are the points of federal jurisdiction to which he objects, with a few exceptions. Let us examine each of them with a supposition that the same impartiality will be observed there as in other courts, and then see if any mischief will result from them. With respect to its cognizance in all cases arising under the Constitution and the laws of the United States, he says that, the laws of the United States being paramount to the laws of the particular states, there is no case but what this will extend to. Has the government of the United States power to make laws on every subject? Does he understand it so? Can they make laws affecting the mode of transferring property, or contracts, or claims, between citizens of the same state? Can they go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void. nolu chan  posted on  2015-07-20   18:27:58 ET  Reply   Trace   Private Reply   #213. To: nolu chan, Y'ALL (#212) (Edited) --- nolu chan contends an amendment to repeal the 2nd Amdt could be passed --- Nolu wrote this proposed amendment that follows, and claims that it would be constitutional.. 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. Since posting this thread, I'm flat amazed at how many self described 'conservatives' agree with Nolu, that a tyranny of a (super?) majority could repeal the 2nd Amendment, in a supposedly constitutional manner. Now, of course, nolu is still posting opinions from courts and 'expert' authorities that agree with his opinions. -- None of which, in my opinion, have proved his point. - -- (Although in his last post, oddly enough, he quotes from opinions that agree with points I have made, previously). -- His other efforts, to smear me, --- only reinforce, in my opinion, nolu' s obsessive and almost fanatical delusion that the majority rules in this Republic. We formed this Republic under the rule of law, Constitutional law, to protect individual rights. -- Passing amendments that repealed individual rights would in effect, nullify our constitutional principles.. tpaine  posted on  2015-07-20   20:19:19 ET  Reply   Trace   Private Reply   #214. To: tpaine (#213) [tpaine #213 to nolu chan #212] Now, of course, nolu is still posting opinions from courts and 'expert' authorities that agree with his opinions. tpaine feels a need to put derisive quotation marks around expert when referring back to James Madison, Elbridge Gerry, Governeur Morris, Roger Sherman, and Samuel Adams at the Federal constitution convention, and Oliver Ellsworth, George Nicholas, James Wilson, and John Marshall at the State conventions in debate about the Constitution. Those are the experts I quoted at my #212. Here on the tpaine vanity thread, he has been reduced to responding with "yada, yada, yada," because he is unable to debate the merits of his inane legal arguments, or the lack of such merits. Again, tpaine has opined that the courts are wrong, the legal experts are wrong. tpaine is amazed the a Constitution of the people, which permits amendment, can be amended by the people, without the approval of tpaine or his imaginary “deemers.” In all the years he has been excreting his mental dumps upon the net, he has not cited recognized legal authority to support his absurdities. As he has been reduced to unintelligible spluttering, it is time to continue the basic history lessons. Today's lesson continues Jurisdiction and Judicial Review. - - - Henry St. George Tucker, Lectures on Constitutional Law, for the use of the Law Class at the University of Virginia, Lecture VII, pp. 205-207. 205 A citizen of Pennsylvania sues a Virginian in the federal court of this state in a case, in which the constitutional question of the right to sue is involved. Judgment is rendered against the Virginian. He appeals to his state for redress. Virginia decides that the law or judgment is unconstitutional, and that there was no right to sue. The judgment then must be suspended till three fourths approve it. With this state of things the Pennsylvanian is dissatisfied. He appeals to his state, which decides that there was a right to sue. He then demands an enforcement of the judgment, until three fourths of the states pronounce it wrong. Thus Virginia denies that there is any right to sue unless three fourths of the states determine otherwise. On the other hand, Pennsylvania, with equal rights, insists that there is a right to sue until three fourths of the states determine otherwise. Both cannot be. For one or the other must be overruled by one more than one fourth. Which shall it be ? A casuist even would be puzzled to decide. It is earnestly contended, indeed, that the right of the states to determine, for themselves, every question of constitutional law, and to decide whether the compact is broken, is inseparable from its sovereignty. This is, indeed, most true, where no umpire is appointed to decide the question. But where parties standing in antagonist relations appoint an umpire, they cannot question or renounce his decision. Bona fides demands their compliance with it. Now, as will be presently shewn, the judiciary have been appointed by the states to decide all questions arising under the constitution. They do therefore constitute the umpire between the states and the United States, and between the several states of the confederacy and their citi- - - - - - [206] zens, and both parties are conclusively bound by its decisions. Nor can there be danger in such an umpirage. Selected for their virtues and ability, and lifted above all fear or favour or affection, they merit confidence from all; but as they are citizens of the states and attached peculiarly to them, the states have surely little reason for distrust: And if we could suspect them of any leaning which does not spring from honest conviction, we should surely apprehend a leaning to the states. Let us see then in whom are the judicial powers of the government vested by the constitution. The third article, section 1st, declares that they “shall be vested in ONE supreme court, and in such inferior courts as congress may from time to time ordain vand establish.” And in the 2d section it provides, that the judicial power shall extend to ALL cases arising under the constitution,” so that the decision of ALL cases arising under the constitution, is vested in the supreme court, and such inferior courts, &c. But if the constitution of the United States vests the power to decide a question arising under the constitution in the supreme court, there can be no constitutional appeal from its decision; for if there could, it would no longer be supreme. For the power to decide (which is the judicial power), is a power to determine a question or dispute;(o) and the vesting that power in one supreme court, is a negative of the power of any other body to controvert its determination. For if the judgment of the supreme court may be controverted by another court, then it is clear that the court is not supreme, and that its judgment has not determined [or put an end to] the question, although, the power to determine it is given by the constitution. The judgments then of the supreme court, “in cases arising under the constitution,” must be final and conclusive. This, indeed, seems to be admitted as to all other tribunals;(p) and I think I have shewn there can be no other appeal, except that which consists in a rejection of the “cancelled obligations of the violated compact, and a resort to original rights, and the law of self-preservation.” What then are “cases arising under the constitution?” Are questions of constitutional law, and questions of the (o) Walker’s Dictionary. (p) Review p. 80, para. 2. - - - - - [207] jurisdiction of the supreme court such cases? If so, they are comprehended by the judicial power which is vested in the supreme court, and its decisions thereupon are final and conclusive. Now, it would not seem to admit of doubt that all questions of constitutional law, whether respecting the true meaning and intention of the instrument, or the extent and character of the several powers granted to the federal government, or any department thereof, are questions arising under the constitution; and all cases between proper parties, which depend upon such questions, are, therefore, cases arising under the constitution. To all such cases it is declared that the jurisdiction shall extend. When, therefore, the court is in possession of such a case, the determination of which depends upon a constitutional question, it must of necessity determine that question, if it determines the case; and that determination, we have endeavoured to shew, must be final and conclusive. This is emphatically the case as to the subject of jurisdiction,(q) and, therefore, the judgment of the supreme court, on a question of jurisdiction, however erroneous it may seem, is final and conclusive, and cannot be controverted by any other court or organ of the government. The supreme court itself, indeed, may, in a subsequent case, reconsider the question and overrule the precedent; but until they do so, it must be held to be final and conclusive, and can in no wise be lawfully resisted. The states may, indeed, amend the constitution, but until amended there seems to be no mode of getting rid of an obnoxious precedent, but by the act of the court itself in overruling it. (q) “It is admitted,” says the reviewer very truly, “that every court must necessarily determine every question of jurisdiction before it, and, so far, it must of course be the judge of its own powers. If it be a court of the last resort, its decision is necessarily final, so far as those authorities are concerned which belong to the same system of government with itself.” nolu chan  posted on  2015-07-21   15:32:17 ET  Reply   Trace   Private Reply   #215. To: tpaine, Nolu Chan (#0) 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? This is very illustrative of how I see many so called conservatives use the "constitution". If an amendment is passed, of course, it is constitutional. But this is not the first time I have heard some (not all) so called conservatives proclaim an amendment to the constitution is not constitutional. In any case, here is some comedy: Pericles  posted on  2015-07-21   15:56:03 ET  Reply   Trace   Private Reply   #216. To: tpaine (#213) As tpaine has been reduced to unintelligible spluttering, it is time to continue the basic history lessons. Today's lesson continues Judicial Power and the Supremacy Clause. William Rawle, A View of the Constitution, 1825, Chapter 20, of the Judicial Power, p. 188: CHAPTER XX. Of the Judicial Power. NO form of government is complete unless it be accompanied with a judicial power. To make laws and to execute them are the two great operations of government, but they cannot be fully and correctly executed unless there is somewhere resident a power to expound and apply them. This power is auxiliary to the executive authority, and in some degree partakes of its nature. But it is also required at times to control the executive, and what it decides to be unlawful the executive cannot perform. It may also in some degree be said to participate in the legislative power. Its construction of the acts of the legislature is received as binding and conclusive, although it does not prevent the legislature from repairing its own defects, or clearing up its own ambiguities by subsequent laws, operating on subsequent cases. A high function also appertains to the judiciary in the exclusive right to expound the constitution, and thereby to test the validity of all the acts of the legislature. To the people at large, therefore, this institution is peculiarly valuable and ought to be eminently cherished by them. On its firm and independent structure they repose with safety, while they perceive in it a power which is only set in motion when applied to, but which when thus brought into action, proceeds with competent power when required, to correct the error or subdue the oppression of both or either of the two other branches. - - - - - - - - - - William Rawle, A View of the Constitution, 1825, Chapter 30, Of checks and controls on other branches of the Government, p. 277: Secondly, as this may not always be a sufficient restraint, the judicial power presents an effectual barrier against its excesses, the observations on which need not be repeated. But, as observed, the judicial power possesses no spontaneous motion—it must be called into action by the application of others—either individuals or constituted authorities, and in the mean time, the obnoxious law may not only take its place in the statute book, but be injuriously acted upon. The third corrective therefore is in the hands of the people, who do not, as disingenuously remarked, make no other use of their power than to give it away. The biennial election of the house of representatives, of which the people can by no artifice be deprived, secures to them the power of removing every member of that house who has shown either an inability to comprehend, or an unwillingness to conform to the transcendent obligations of the constitution, which he has sworn to support. Here, then, we have the protection and safety unknown to those countries where either the legislature elect themselves, or enjoy an hereditary right, or where, although the representative principle may be nominally kept up, its exercise may be suspended or postponed at the pleasure of another part of the government. - - - - - - - - - - Joseph Story, Commentaries on the Constitution of the United States, Vol. 3, 1833, pages 693-694: § 1830. The next clause is, "This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. And the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." § 1831. The propriety of this clause would seem to result from the very nature of the constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme. It would be a perfect solecism to affirm, that a national government should exist with certain powers; and yet, that in the exercise of those powers it should not be supreme. What other inference could have been drawn, than of their supremacy, if the constitution had been totally silent? And surely a positive affirmance of that, which is necessarily implied, cannot in a case of such vital importance be deemed unimportant. The very circumstance, that a question might be made, would irresistibly lead to the conclusion, that it ought not to be left to inference. A law, by the very meaning of the term, includes supremacy. It is a rule, which those, to whom it is prescribed, are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws, which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those [694] societies, and the individuals, of whom they are composed, It would otherwise be a mere treaty, dependent upon the good faith of the parties, and not a government, which is only another name for political power and supremacy. But it will not follow, that acts of the larger society, which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. They will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive, that the above clause only declares a truth, which flows immediately and necessarily from the institution of a national government.1 It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution; a caution very proper in itself but in fact the limitation would have arisen by irresistible implication, if it had not been expressed.2 1 The Federalist, No. 33. See Gibbons v. Ogden, 9 Wheat R. 210, 211; McCulloch v. Maryland, 4 Wheat R. 405, 406. — This passage from the Federalist (No. 33) has been, for another purpose, already cited in Vol. I. § 340; but it is necessary to be here repeated to give due effect to the subsequent passages. 2 Ibid. See also 1 Tuck. Black. Comm. App. 369, 370. Joseph Story, Commentaries on the Constitution of the United States, Vol. 3, 1833, page 703: § 1836. From this supremacy of the constitution and laws and treaties of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by congress or by a state legislature void. So, in like manner, the same duty arises, whenever any other department of the national or state governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution. Such a power belongs to it only, when it sits to administer the local law of a state, and acts exactly, as a state tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy. nolu chan  posted on  2015-07-22   18:34:27 ET  Reply   Trace   Private Reply   #217. To: tpaine (#213) As tpaine has been reduced to unintelligible spluttering, it is time to continue the basic history lessons. Today's lesson is the U.S. Supreme Court explaining that Congress may not legislatively supersede its decisions interpreting and applying the Constitution. Dickerson v United States, 530 US 428, 436-37 (2000) Given § 3501’s express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. See also Davis v. United States, 512 U. S. 452, 464 (1994) (Scalia, J., concurring) (stating that, prior to Miranda, “voluntariness vel non was the touchstone of admissibility of confessions”). Because of the obvious conflict between our decision in Miranda and § 3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, § 3501’s totality of- the-circumstances approach must prevail over Miranda’s requirement of warnings; if not, that section must yield to Miranda’s more specific requirements. The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. Carlisle v. United States, 517 U. S. 416, 426 (1996). However, the power to judicially create and enforce nonconstitutional “rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress.” Palermo v. United States, 360 U. S. 343, 353, n. 11 (1959) (citing Funk v. United States, 290 U. S. 371, 382 (1933), and Gordon v. United States, 344 U. S. 414, 418 (1953)). Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. Palermo, supra, at 345–348; Carlisle, supra, at 426; Vance v. Terrazas, 444 U. S. 252, 265 (1980). But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e. g., City of Boerne v. Flores, 521 U. S. 507, 517–521 (1997). nolu chan  posted on  2015-07-23   16:41:09 ET  Reply   Trace   Private Reply   #218. To: nolu chan (#216) Please continue your hissy fit display though.. It's really getting amusing.. --- Particularly amusing is your last quote, which makes my point: --- Joseph Story, Commentaries on the Constitution of the United States, Vol. 3, 1833, page 703: ---- § 1836. From this supremacy of the constitution and laws and treaties of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by congress or by a state legislature void. So, in like manner, the same duty arises, whenever any other department of the national or state governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution. Such a power belongs to it only, when it sits to administer the local law of a state, and acts exactly, as a state tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy. Thank you, again... tpaine  posted on  2015-07-26   7:46:18 ET  Reply   Trace   Private Reply   #219. To: tpaine (#218) But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy. Although you have proven your utter lack of reading comprehension, I will continue, at your request. As you make believe you are unable to fathom the bare fundamentals of judicial review, I will now cover your beloved Supremacy Clause, at the mention of which, magic unicorns fly out your arse and transform it into something previously unknown. https://en.wikipedia.org/wiki/Supremacy_Clause The Federalist Papers There are two sections of The Federalist Papers that deal with the Supremacy Clause. In Federalist No. 33, Alexander Hamilton argues that the Supremacy Clause is simply an assurance that the government's powers can be properly executed, saying that a law itself implies supremacy, and without supremacy it would amount to nothing. In Federalist No. 44, James Madison similarly defends the Supremacy Clause as vital to the functioning of the nation. He noted that state legislatures were invested with all powers not specifically defined in the constitution, but also said that having the federal government subservient to various state constitutions would be an inversion of the principles of government, concluding that if supremacy were not established "it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members". - - - Supreme Court interpretations In Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), the United States Supreme Court for the first time applied the Supremacy Clause to strike down a state statute. Virginia had passed a statute during the Revolutionary War allowing the state to confiscate debt payments by Virginia citizens to British creditors. The Supreme Court found that this Virginia statute was inconsistent with the Treaty of Paris with Britain, which protected the rights of British creditors. Relying on the Supremacy Clause, the Supreme Court held that the treaty superseded Virginia's statute, and that it was the duty of the courts to declare Virginia's statute "null and void". In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), and Cohens v. Virginia, 19 U.S. 264 (1821), the Supreme Court held that the Supremacy Clause and the judicial power granted in Article III give the Supreme Court the ultimate power to review state court decisions involving issues arising under the Constitution and laws of the United States. Therefore, the Supreme Court has the final say in matters involving federal law, including constitutional interpretation, and can overrule decisions by state courts. In McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Supreme Court reviewed a tax levied by Maryland on the federally incorporated Bank of the United States. The Court found that if a state had the power to tax a federally incorporated institution, then the state effectively had the power to destroy the federal institution, thereby thwarting the intent and purpose of Congress. This would make the states superior to the federal government. The Court found that this would be inconsistent with the Supremacy Clause, which makes federal law superior to state law. The Court therefore held that Maryland's tax on the bank was unconstitutional because the tax violated the Supremacy Clause. In Ableman v. Booth, 62 U.S. 506 (1859), the Supreme Court held that state courts cannot issue rulings that contradict the decisions of federal courts, citing the Supremacy Clause, and overturning a decision by the Supreme Court of Wisconsin. Specifically, the court found it was illegal for state officials to interfere with the work of U.S. Marshals enforcing the Fugitive Slave Act or to order the release of federal prisoners held for violation of that Act. The Supreme Court reasoned that because the Supremacy Clause established federal law as the law of the land, the Wisconsin courts could not nullify the judgments of a federal court. The Supreme Court held that under Article III of the Constitution, the federal courts have the final jurisdiction in all cases involving the Constitution and laws of the United States, and that the states therefore cannot interfere with federal court judgments. In Pennsylvania v. Nelson, 350 U.S. 497 (1956) the Supreme Court struck down the Pennsylvania Sedition Act, which made advocating the forceful overthrow of the federal government a crime under Pennsylvania state law. The Supreme Court held that when federal interest in an area of law is sufficiently dominant, federal law must be assumed to preclude enforcement of state laws on the same subject; and a state law is not to be declared a help when state law goes farther than Congress has seen fit to go. In Reid v. Covert, 354 U.S. 1 (1957), the Supreme Court held that the U.S. Constitution supersedes international treaties ratified by the U.S. Senate. In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court rejected attempts by Arkansas to nullify the Court's school desegregation decision, Brown v. Board of Education. The state of Arkansas, acting on a theory of states' rights, had adopted several statutes designed to nullify the desegregation ruling. The Supreme Court relied on the Supremacy Clause to hold that the federal law controlled and could not be nullified by state statutes or officials. In Edgar v. MITE Corp., 457 U.S. 624 (1982), the Supreme Court ruled: "A state statute is void to the extent that it actually conflicts with a valid Federal statute". In effect, this means that a State law will be found to violate the Supremacy Clause when either of the following two conditions (or both) exist:[1] Compliance with both the Federal and State laws is impossible "State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" In 1920, the Supreme Court applied the Supremacy Clause to international treaties, holding in the case of Missouri v. Holland, 252 U.S. 416, that the Federal government's ability to make treaties is supreme over any state concerns that such treaties might abrogate states' rights arising under the Tenth Amendment. The Supreme Court has also held that only specific, "unmistakable" acts of Congress may be held to trigger the Supremacy Clause. Montana had imposed a 30 percent tax on most sub-bituminous coal mined there. The Commonwealth Edison Company and other utility companies argued, in part, that the Montana tax "frustrated" the broad goals of the national energy policy. However, in the case of Commonwealth Edison Co. v. Montana, 453 U.S. 609 (1981), the Supreme Court disagreed. Any appeal to claims about "national policy", the Court said, were insufficient to overturn a state law under the Supremacy Clause unless "the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained".[2] However, in the case of California v. ARC America Corp., 490 U.S. 93 (1989), the Supreme Court held that if Congress expressedly intended to act in an area, this would trigger the enforcement of the Supremacy Clause, and hence nullify the state action. The Supreme Court further found in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), that even when a state law is not in direct conflict with a federal law, the state law could still be found unconstitutional under the Supremacy Clause if the "state law is an obstacle to the accomplishment and execution of Congress's full purposes and objectives".[3] Congress need not expressly assert any preemption over state laws either, because Congress may implicitly assume this preemption under the Constitution.[4] - - - The Fourteenth Amendment Similarities exist between the Supremacy Clause and the Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution, which states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." The difference between the two is that while the Supremacy Clause deals with the relationship between the Federal Government and the states, the Fourteenth Amendment deals with the relationships among the Federal Government, the States, and the citizens of the United States. - - - References Dow Chemical Co. v. Exxon Corp., 139 F.3d 1470 (Fed Cir 1998). Commonwealth Edison Co. v. Montana, 453 U.S. 609, 634, quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963). Crosby v. National Foreign Trade Council, 530 U.S. 363, 372-374. Crosby v. National Foreign Trade Council, 530 U.S. 363, 386-388. nolu chan  posted on  2015-07-27   13:55:07 ET  Reply   Trace   Private Reply   #220. To: tpaine (#218) Please continue .... http://supreme.justia.com/us/2/419/case.html Chisholm v Georgia, 2 Dal. 419 (1793) Justice Iredell at 2 Dal. 447 The word “corporations,” in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate), whether its power be restricted or transcendant, is in this sense "a corporation." Justice Iredell at 2 Dal. 448 A State does not owe its origin to the Government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: the voluntary and deliberate choice of the people. Justice Wilson at 2 Dal. 455 Man, fearfully and wonderfully made, is the workmanship of his all perfect Creator. A state, useful and valuable as the contrivance is, is the inferior contrivance of man, and from his native dignity derives all its acquired importance. When I speak of a state as an inferior contrivance, I mean that it is a contrivance inferior only to that which is divine. Of all human contrivances, it is certainly most transcendantly excellent. It is concerning this contrivance that Cicero says so sublimely, “Nothing, which is exhibited upon our globe is more acceptable to that divinity which governs the whole universe than those communities and assemblages of men which, lawfully associated, are denominated states.” Let a state be considered as subordinate to the people. But let everything else be subordinate to the state. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics, there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the state has claimed precedence of the people, so, in the same inverted course of things, the government has often claimed precedence of the state, and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the state. This second degree of perversion is confined to the old world, and begins to diminish even there; but the first degree is still too prevalent, even in the several States of which our union is composed. By a "state," I mean a complete body of free persons united together for their common benefit to enjoy peaceably what is their own and to do justice to others. It is an artificial person. It has its affairs and its interests; it has its rules; it has its rights; and it has its obligations. It may acquire property distinct from that of its members. It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts, and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget that, in truth and nature, those who think and speak and act are men. Is the foregoing description of a state a true description? It will not be questioned but it is. Justice Wilson at 2 Dal. 457 As a citizen, I know the government of that state to be republican; and my short definition of such a government is one constructed on this principle — that the supreme power resides in the body of the people. As a judge of this court, I know, and can decide upon the knowledge that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the "People of the United states," did not surrender the supreme or sovereign power to that state, but, as to the purposes of the Union, retained it to themselves. Justice Wilson at 2 Dal. 462-63 In the United states, and in the several states, which compose the Union, we go not so far, but still we go one step farther than we ought to go in this unnatural and inverted order of things. The states, rather than the people, for whose sakes the states exist, are frequently the objects which attract and arrest our principal attention. This, I believe, has produced much of the confusion and perplexity which have appeared in several proceedings and several publications on state politics, and on the politics, too, of the United states. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial, language. Is a toast asked? “The United states,” instead of the “People of the United states,” is the toast given. This is not politically correct. The toast is meant to present to view the first great object in the Union: it presents only the second. It presents only the artificial person, instead of the natural persons who spoke it into existence. A state I cheerfully fully work of God. Concerning the prerogative of Kings, and concerning the sovereignty of states, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. The mode of expression, which I would substitute in the place of that generally used, is not only politically, but also (for between true liberty and true taste there is a close alliance) classically more correct. On the mention of Athens, a thousand refined and endearing associations rush at once into the memory of the scholar, the philosopher, and the patriot. When Homer, one of the most correct, as well as the oldest of human authorities, enumerates the other nations of Greece whose forces acted at the siege of Troy, he arranges them under the names of their different Kings or Princes. But when he comes to the Athenians, he distinguishes them by the peculiar appellation of the PEOPLE of Athens. The well known address used by Demosthenes, when he harrangued and animated his assembled countrymen, was “O Men of Athens.” With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object which the nation could present. “The PEOPLE of the United states” are the first personages introduced. Who were those people? They were the citizens of thirteen states, each of which had a separate constitution and government, and all of which were connected together by Articles of Confederation. Justice Cushing at 2 Dal. 468 But still it may be insisted that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. Chief Justice Jay at 2 Dal. 470 The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain, the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the unappropriated lands, which belonged to that Crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war and in the warmth of mutual confidence, they made a Confederation of the States the basis of a general government. Chief Justice Jay at 2 Dal. 473 There is at least one strong undeniable fact against this incompatibility, and that is this — any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. nolu chan  posted on  2015-07-29   0:57:50 ET  Reply   Trace   Private Reply   #221. To: nolu chan (#220) 218. To: nolu chan (#216) Please continue your hissy fit display though.. It's really getting amusing.. --- Particularly amusing is your this quote, which makes my point: --- Joseph Story, Commentaries on the Constitution of the United States, Vol. 3, 1833, page 703: ---- § 1836. From this supremacy of the constitution and laws and treaties of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by congress or by a state legislature void. So, in like manner, the same duty arises, whenever any other department of the national or state governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution. Such a power belongs to it only, when it sits to administer the local law of a state, and acts exactly, as a state tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy. Thank you, again.. Although you have proven your utter lack of reading comprehension, I will continue, at your request. Sorry but my request is for you to continue making a fool of YOUR self. --- And you're doing just fine.. As you make believe you are unable to fathom the bare fundamentals of judicial review,--- Unlike you, I comprehend the plain words of our Constitution. --- It's wannabe lawyers, and shysters like you who have fouled up the judicial review system. tpaine  posted on  2015-07-29   20:24:08 ET  Reply   Trace   Private Reply   #222. To: tpaine (#221) Please continue your hissy fit display though.. It's really getting amusing.. --- Particularly amusing is your this quote, which makes my point: --- Particulary amusing is your vivid imagination. Joseph Story, Commentaries on the Constitution of the United States, Vol. 3, 1833, page 703: ---- § 1836. From this supremacy of the constitution and laws and treaties of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by congress or by a state legislature void. So, in like manner, the same duty arises, whenever any other department of the national or state governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution. Such a power belongs to it only, when it sits to administer the local law of a state, and acts exactly, as a state tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy. Your assinine opinion is that SCOTUS lacks the authority to exercise judicial review and declare laws constitutional or strike them down as unconstitutional, and you go further to claim that the Executive and Legislative branches are empowered to ignore SCOTUS decisions by some hitherto unknown magical power bestowed by the Supremacy Clause. Justice Story wrote that "the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy." You vividly imagine that this statement confirming the authority to exercise judicial review somehow supports your brain fart. http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=40004&Disp=73#C73 tpaine posted on 2015-06-09 10:03:28 ET [nc] Yep, and in tpaineworld, Obama, the rest of the Executive Branch and the Legislative Branch get to ignore the opinions issued by SCOTUS. Yep, those branches of gov can and have ignored SCOTUS opinions that they consider unconstitutional. -- This is their duty, under the provisions of the supremacy clause, Article VI.... Continuing at your invitation, from SCOTUS predating Marbury. https://supreme.justia.com/cases/federal/us/2/409/case.html U.S. Supreme Court Hayburn’s Case, 2 U.S. 409 (1792) 2 U.S. 409 MOTION FOR MANDAMUS This was a motion for a mandamus to be directed to the Circuit Court for the District of Pennsylvania commanding the said court to proceed in a certain petition of Wm. Hayburn, who had applied to be put on the pension list of the United States as an invalid pensioner. The principal case arose upon the act of Congress passed 23 March, 1792. The Attorney General (Randolph) who made the motion for the mandamus, having premised that it was done ex officio, without an application from any particular person, but with a view to procure the execution of an act of Congress particularly interesting to a meritorious and unfortunate class of citizens, the court declared that it entertained great doubt upon his right, under such circumstances and in a case of this kind, to proceed ex officio, and directed him to state the principles on which he attempted to support the right. The Attorney General accordingly entered into an elaborate description of the powers and duties of his office. But the court being divided in opinion on that question, the motion, made ex officio, was not allowed. The Attorney General then changed the ground of his interposition, declaring it to be at the instance and on behalf of Hayburn, a party interested; and he entered into the merits of the case upon the act of Congress and the refusal of the judges to carry it into effect. The Court observed that it would hold the motion under advisement until the next term, but no decision was ever pronounced, as the legislature, at an intermediate 2 U. S. 410 session, provided in another way for the relief of the pensioners. * 2 U. S. 411 The Circuit Court for the District of Pennsylvania, consisting of Wilson, and Blair, Justices, and Peters, District Judge, made the following representation in a letter jointly addressed to the President of the United States on 18 April, 1792: “To you it officially belongs to ‘take care that the laws’ of the United States ‘to faithfully executed.’ Before you, therefore, we think it our duty to lay the sentiments which, on a late painful occasion, governed us with regard to an act passed by the legislature of the union.” “The people of the United States have vested in Congress all legislative powers ‘granted in the Constitution.’” “They have vested in one Supreme Court and in such inferior courts as the Congress shall establish ‘the judicial power of the United States.’” “It is worthy of remark that in Congress the whole legislative power of the United States is not vested. An important part of that power was exercised by the people themselves when they ‘ordained and established the Constitution.’” “This Constitution is ‘the Supreme Law of the Land.’ This supreme law ‘all judicial officers of the United States are bound, by oath or affirmation, to support.’” “It is a principle important to freedom that in government, the judicial should be distinct from and independent of the legislative department. To this important principle the people of the United States, in forming their Constitution, have manifested the highest regard.” “They have placed their judicial power not in Congress, but in ‘courts.’ They have ordained that the ‘judges of those courts shall hold their offices during good behavior,’ and that ‘during their continuance in office, their salaries shall not be diminished.’” “Congress has lately passed an act to regulate, among other things, ‘the claims to invalid pensions.’” “Upon due consideration, we have been unanimously of opinion that under this act, the circuit court held for the Pennsylvania District could not proceed” “1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the circuit court must consequently have proceeded without constitutional authority.” “2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts, and consequently with that important principle which is so strictly observed by the Constitution of the United States. “ 2 U. S. 412 “These, Sir, are the reasons of our conduct. Be assured that though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of Congress or to a constitutional principle, in our judgment equally obvious, excited feelings in us which we hope never to experience again.” The Circuit Court for the District of North Carolina (consisting of Iredell Justice, and Sitgreaves, District Judge) made the following representation in a letter jointly addressed to the President of the United States on 8 June, 1792. “We, the judges now attending at the Circuit Court of the United States for the District of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of Congress lately passed, entitled” “An act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions.” “We beg leave to premise that it is as much our inclination as it is our duty to receive with all possible respect every act of the legislature, and that we never can find ourselves in a more painful situation than to be obliged to object to the execution of any, more especially to the execution of one founded on the purest principles of humanity and justice, which the act in question undoubtedly is. But however, lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best dictates of our own judgment after duly weighing every consideration that can occur to us, which we have done on the present occasion.” “The extreme importance of the case and our desire of being explicit beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner. We therefore, Sir, submit to you the following:” “1. That the Legislative, Executive, and Judicial departments are each formed in a separate and independent manner, and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority.” “2. That the legislature, among other important powers, unquestionably possess that of establishing courts in such a manner as to its wisdom shall appear best, limited by the terms of the Constitution only, and to whatever extent that power may be exercised, or however severe the duty it may think proper to require, the judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it.” “3. That at the same time, such courts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another act) 2 U. S. 413 any power not in its nature judicial, or, if judicial, not provided for upon the terms the Constitution requires.” “4. That whatever doubt may be suggested, whether the power in question is properly of a judicial nature, yet inasmuch as the decision of the court is not made final, but may be at least suspended in its operation by the Secretary at War, if he shall have cause to suspect imposition or mistake, this subjects the decision of the court to a mode of revision which we consider to be unwarranted by the Constitution, for though Congress may certainly establish, in instances not yet provided for, courts of appellate jurisdiction, yet such courts must consist of judges appointed in the manner the Constitution requires and holding their offices by no other tenure than that of their good behavior, by which tenure the office of Secretary at War is not held. And we beg leave to add with all due deference that no decision of any court of the United States can under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion or even suspension by the legislature itself, in whom no judicial power of any kind appears to be vested but the important one relative to impeachments.” “These, sir, are our reasons for being of opinion, as we are at present, that this circuit court cannot be justified in the execution of that part of the act which requires it to examine and report an opinion on the unfortunate cases of officers and soldiers disabled in the service of the United States. The part of the act requiring the court to sit five days for the purpose of receiving applications from such persons we shall deem it our duty to comply with, for whether in our opinion such purpose can or cannot be answered, it is, as we conceive, our indispensable duty to keep open any court of which we have the honor to be judges as long as Congress shall direct.” “The high respect we entertain for the legislature, our feelings as men for persons whose situation requires the earliest as well as the most effectual relief, and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of Congress so conspicuous on the present as well as on many other occasions have induced us to reflect whether we could be justified in acting under this act personally in the character of commissioners during the session of a court, and could we be satisfied that we had authority to do so, we would cheerfully devote such part of our time as might be necessary for the performance of the service. But we confess we have great doubts on this head. The power appears to be given to the court only, and not to the judges of it, and as the Secretary at War has not a discretion in all instances, but only in those where he has cause to suspect imposition or mistake, to withhold a person recommended by the court from being named on the pension list, it would be necessary for us to be well persuaded we possessed such an authority before we exercised a power, which might be a means of drawing money out of the public treasury as effectually as an express appropriation by law. We do not mean, however, to preclude ourselves from a very deliberate consideration whether we can be warranted in executing the purposes of the act in that manner in case an application should be made.” “No application has yet been made to the court or to ourselves individually, and therefore we have had some doubts as to the propriety of giving an opinion in a case which has not yet come regularly and judicially before us. None can be more sensible than we are of the necessity of judges’ being in general extremely cautious in not intimating an opinion in any case extrajudicially, because we well know how liable the best minds are, notwithstanding their utmost care, to a bias which may arise from a preconceived opinion, even unguardedly, much more deliberately, given. But in the present instance, as many unfortunate and meritorious individuals whom Congress have justly thought proper objects of immediate relief may suffer great distress even by a short delay and may be utterly ruined by a long one, we determined at all events to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule upon every principle of humanity and justice; resolving however, that so far as we are concerned individually, in case an application should be made, we will most attentively hear it, and if we can be convinced this opinion is a wrong one, we shall not hesitate to act accordingly, being as far from the weakness of supposing that there is any reproach in having committed an error, to which the greatest and best men are sometimes liable, as we should be from so low a sense of duty, as to think it would not be the highest and most deserved reproach that could be bestowed on any men (much more on judges) that they were capable from any motive of persevering against conviction in apparently maintaining an opinion which they really thought to be erroneous. “ 2 U. S. 414 RULE. THE Attorney-General having moved for information relative to the system of practice by which the attorneys and counselors of this Court shall regulate themselves and of the place in which rules in causes here depending shall be obtained, THE CHIEF JUSTICE at a subsequent day stated that: The Court considers the practice of the Courts of King’s Bench and Chancery in England as affording outlines for the practice of this Court, and that it will from time to time make such alterations therein as circumstances may render necessary. * See an act passed 28 Feb., 1793. As the reasons assigned by the judges for declining to execute the first act of Congress involve a great constitutional question, it will not be thought improper to subjoin them in illustration of Hayburn’s Case. The Circuit Court for the District of New York (consisting of Jay, Chief Justice, Cushing Justice, and Duane, District Judge) proceeded on 5 April, 1791, to take into consideration the act of Congress entitled “An act to provide for the settlement of the claims of widows, and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions,” and was thereupon unanimously of opinion and agreed “That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from and to oppose, encroachments on either.” “That neither the Legislative nor the Executive branches can constitutionally assign to the Judicial any duties but such as are properly judicial and to be performed in a judicial manner.” “That the duties assigned to the circuit courts by this act are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War and then to the revision of the legislature, whereas by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court.” “As, therefore, the business assigned to this Court by the act is not judicial nor directed to be performed judicially, the act can only be considered as appointing commissioners for the purposes mentioned in it by official instead of personal descriptions.” “That the judges of this court regard themselves as being the commissioners designated by the act, and therefore as being at liberty to accept or decline that office.” “That as the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress, and as the judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature, they will execute this act in the capacity of commissioners.” “That as the legislature has a right to extend the session of this court for any term which it may think proper by law to assign, the term of five days, as directed by this act, ought to be punctually observed.” “That the judges of this court will, as usual, during the session thereof, adjourn the court from day to day or other short periods as circumstances may render proper, and that they will regularly, between the adjournments, proceed as commissioners to execute the business of this act in the same courtroom or chamber.” nolu chan  posted on  2015-07-29   23:27:48 ET  Reply   Trace   Private Reply   #223. To: nolu chan (#222) nc] Yep, and in tpaineworld, Obama, the rest of the Executive Branch and the Legislative Branch get to ignore the opinions issued by SCOTUS. Yep, those branches of gov can and have ignored SCOTUS opinions that they consider unconstitutional. -- This is their duty, under the provisions of the supremacy clause, Article VI.... Your assinine opinion is that SCOTUS lacks the authority to exercise judicial review and declare laws constitutional or strike them down as unconstitutional, That's YOUR asinine opinion about my opinion, and my opinion is backed up by the supremacy clause. and you go further to claim that the Executive and Legislative branches are empowered to ignore SCOTUS decisions by some hitherto unknown magical power bestowed by the Supremacy Clause. Read the clause. It says that all officials of our republic are duty bound to honor our Constitution as the supreme law. -- Which gives them the power to ignore unconstitutional 'laws'. ( At their own peril, of course) --- This concept is called 'checks and balances', and without it, we would have a tyranny run by smart assed wannabe lawyers, like you. Justice Story wrote that "the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy." --- You vividly imagine that this statement confirming the authority to exercise judicial review somehow supports your brain fart. You imagine that I'm having brain farts, while your own theories about our Constitution are akin to a bag of noxious fumes.. tpaine  posted on  2015-07-30   9:51:23 ET  Reply   Trace   Private Reply   #224. To: tpaine (#223) Continuing your remedial education. https://supreme.justia.com/cases/federal/us/2/409/case.html Hayburn’s Case, 2 US 409 (1792) U.S. Supreme Court Hayburn’s Case, 2 U.S. 409 (1792) 2 U.S. 409 MOTION FOR MANDAMUS This was a motion for a mandamus to be directed to the Circuit Court for the District of Pennsylvania commanding the said court to proceed in a certain petition of Wm. Hayburn, who had applied to be put on the pension list of the United States as an invalid pensioner. The principal case arose upon the act of Congress passed 23 March, 1792. The Attorney General (Randolph) who made the motion for the mandamus, having premised that it was done ex officio, without an application from any particular person, but with a view to procure the execution of an act of Congress particularly interesting to a meritorious and unfortunate class of citizens, the court declared that it entertained great doubt upon his right, under such circumstances and in a case of this kind, to proceed ex officio, and directed him to state the principles on which he attempted to support the right. The Attorney General accordingly entered into an elaborate description of the powers and duties of his office. But the court being divided in opinion on that question, the motion, made ex officio, was not allowed. The Attorney General then changed the ground of his interposition, declaring it to be at the instance and on behalf of Hayburn, a party interested; and he entered into the merits of the case upon the act of Congress and the refusal of the judges to carry it into effect. The Court observed that it would hold the motion under advisement until the next term, but no decision was ever pronounced, as the legislature, at an intermediate 2 U. S. 410 session, provided in another way for the relief of the pensioners. * 2 U. S. 411 The Circuit Court for the District of Pennsylvania, consisting of Wilson, and Blair, Justices, and Peters, District Judge, made the following representation in a letter jointly addressed to the President of the United States on 18 April, 1792: “To you it officially belongs to ‘take care that the laws’ of the United States ‘to faithfully executed.’ Before you, therefore, we think it our duty to lay the sentiments which, on a late painful occasion, governed us with regard to an act passed by the legislature of the union.” “The people of the United States have vested in Congress all legislative powers ‘granted in the Constitution.’” “They have vested in one Supreme Court and in such inferior courts as the Congress shall establish ‘the judicial power of the United States.’” “It is worthy of remark that in Congress the whole legislative power of the United States is not vested. An important part of that power was exercised by the people themselves when they ‘ordained and established the Constitution.’” “This Constitution is ‘the Supreme Law of the Land.’ This supreme law ‘all judicial officers of the United States are bound, by oath or affirmation, to support.’” “It is a principle important to freedom that in government, the judicial should be distinct from and independent of the legislative department. To this important principle the people of the United States, in forming their Constitution, have manifested the highest regard.” “They have placed their judicial power not in Congress, but in ‘courts.’ They have ordained that the ‘judges of those courts shall hold their offices during good behavior,’ and that ‘during their continuance in office, their salaries shall not be diminished.’” “Congress has lately passed an act to regulate, among other things, ‘the claims to invalid pensions.’” “Upon due consideration, we have been unanimously of opinion that under this act, the circuit court held for the Pennsylvania District could not proceed” “1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the circuit court must consequently have proceeded without constitutional authority.” “2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts, and consequently with that important principle which is so strictly observed by the Constitution of the United States. “ 2 U. S. 412 “These, Sir, are the reasons of our conduct. Be assured that though it became necessary, it was far from being pleasant. To be obliged to act contrary either to the obvious directions of Congress or to a constitutional principle, in our judgment equally obvious, excited feelings in us which we hope never to experience again.” The Circuit Court for the District of North Carolina (consisting of Iredell Justice, and Sitgreaves, District Judge) made the following representation in a letter jointly addressed to the President of the United States on 8 June, 1792. “We, the judges now attending at the Circuit Court of the United States for the District of North Carolina, conceive it our duty to lay before you some important observations which have occurred to us in the consideration of an act of Congress lately passed, entitled” “An act to provide for the settlement of the claims of widows and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions.” “We beg leave to premise that it is as much our inclination as it is our duty to receive with all possible respect every act of the legislature, and that we never can find ourselves in a more painful situation than to be obliged to object to the execution of any, more especially to the execution of one founded on the purest principles of humanity and justice, which the act in question undoubtedly is. But however, lamentable a difference in opinion really may be, or with whatever difficulty we may have formed an opinion, we are under the indispensable necessity of acting according to the best dictates of our own judgment after duly weighing every consideration that can occur to us, which we have done on the present occasion.” “The extreme importance of the case and our desire of being explicit beyond the danger of being misunderstood, will, we hope, justify us in stating our observations in a systematic manner. We therefore, Sir, submit to you the following:” “1. That the Legislative, Executive, and Judicial departments are each formed in a separate and independent manner, and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority.” “2. That the legislature, among other important powers, unquestionably possess that of establishing courts in such a manner as to its wisdom shall appear best, limited by the terms of the Constitution only, and to whatever extent that power may be exercised, or however severe the duty it may think proper to require, the judges, when appointed in virtue of any such establishment, owe implicit and unreserved obedience to it.” “3. That at the same time, such courts cannot be warranted, as we conceive, by virtue of that part of the Constitution delegating Judicial power, for the exercise of which any act of the legislature is provided, in exercising (even under the authority of another act) 2 U. S. 413 any power not in its nature judicial, or, if judicial, not provided for upon the terms the Constitution requires.” “4. That whatever doubt may be suggested, whether the power in question is properly of a judicial nature, yet inasmuch as the decision of the court is not made final, but may be at least suspended in its operation by the Secretary at War, if he shall have cause to suspect imposition or mistake, this subjects the decision of the court to a mode of revision which we consider to be unwarranted by the Constitution, for though Congress may certainly establish, in instances not yet provided for, courts of appellate jurisdiction, yet such courts must consist of judges appointed in the manner the Constitution requires and holding their offices by no other tenure than that of their good behavior, by which tenure the office of Secretary at War is not held. And we beg leave to add with all due deference that no decision of any court of the United States can under any circumstances, in our opinion, agreeable to the Constitution, be liable to a reversion or even suspension by the legislature itself, in whom no judicial power of any kind appears to be vested but the important one relative to impeachments.” “These, sir, are our reasons for being of opinion, as we are at present, that this circuit court cannot be justified in the execution of that part of the act which requires it to examine and report an opinion on the unfortunate cases of officers and soldiers disabled in the service of the United States. The part of the act requiring the court to sit five days for the purpose of receiving applications from such persons we shall deem it our duty to comply with, for whether in our opinion such purpose can or cannot be answered, it is, as we conceive, our indispensable duty to keep open any court of which we have the honor to be judges as long as Congress shall direct.” “The high respect we entertain for the legislature, our feelings as men for persons whose situation requires the earliest as well as the most effectual relief, and our sincere desire to promote, whether officially or otherwise, the just and benevolent views of Congress so conspicuous on the present as well as on many other occasions have induced us to reflect whether we could be justified in acting under this act personally in the character of commissioners during the session of a court, and could we be satisfied that we had authority to do so, we would cheerfully devote such part of our time as might be necessary for the performance of the service. But we confess we have great doubts on this head. The power appears to be given to the court only, and not to the judges of it, and as the Secretary at War has not a discretion in all instances, but only in those where he has cause to suspect imposition or mistake, to withhold a person recommended by the court from being named on the pension list, it would be necessary for us to be well persuaded we possessed such an authority before we exercised a power, which might be a means of drawing money out of the public treasury as effectually as an express appropriation by law. We do not mean, however, to preclude ourselves from a very deliberate consideration whether we can be warranted in executing the purposes of the act in that manner in case an application should be made.” “No application has yet been made to the court or to ourselves individually, and therefore we have had some doubts as to the propriety of giving an opinion in a case which has not yet come regularly and judicially before us. None can be more sensible than we are of the necessity of judges’ being in general extremely cautious in not intimating an opinion in any case extrajudicially, because we well know how liable the best minds are, notwithstanding their utmost care, to a bias which may arise from a preconceived opinion, even unguardedly, much more deliberately, given. But in the present instance, as many unfortunate and meritorious individuals whom Congress have justly thought proper objects of immediate relief may suffer great distress even by a short delay and may be utterly ruined by a long one, we determined at all events to make our sentiments known as early as possible, considering this as a case which must be deemed an exception to the general rule upon every principle of humanity and justice; resolving however, that so far as we are concerned individually, in case an application should be made, we will most attentively hear it, and if we can be convinced this opinion is a wrong one, we shall not hesitate to act accordingly, being as far from the weakness of supposing that there is any reproach in having committed an error, to which the greatest and best men are sometimes liable, as we should be from so low a sense of duty, as to think it would not be the highest and most deserved reproach that could be bestowed on any men (much more on judges) that they were capable from any motive of persevering against conviction in apparently maintaining an opinion which they really thought to be erroneous. “ 2 U. S. 414 RULE. THE Attorney-General having moved for information relative to the system of practice by which the attorneys and counselors of this Court shall regulate themselves and of the place in which rules in causes here depending shall be obtained, THE CHIEF JUSTICE at a subsequent day stated that: The Court considers the practice of the Courts of King’s Bench and Chancery in England as affording outlines for the practice of this Court, and that it will from time to time make such alterations therein as circumstances may render necessary. * See an act passed 28 Feb., 1793. As the reasons assigned by the judges for declining to execute the first act of Congress involve a great constitutional question, it will not be thought improper to subjoin them in illustration of Hayburn’s Case. The Circuit Court for the District of New York (consisting of Jay, Chief Justice, Cushing Justice, and Duane, District Judge) proceeded on 5 April, 1791, to take into consideration the act of Congress entitled “An act to provide for the settlement of the claims of widows, and orphans barred by the limitations heretofore established, and to regulate the claims to invalid pensions,” and was thereupon unanimously of opinion and agreed “That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from and to oppose, encroachments on either.” “That neither the Legislative nor the Executive branches can constitutionally assign to the Judicial any duties but such as are properly judicial and to be performed in a judicial manner.” “That the duties assigned to the circuit courts by this act are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War and then to the revision of the legislature, whereas by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court.” “As, therefore, the business assigned to this Court by the act is not judicial nor directed to be performed judicially, the act can only be considered as appointing commissioners for the purposes mentioned in it by official instead of personal descriptions.” “That the judges of this court regard themselves as being the commissioners designated by the act, and therefore as being at liberty to accept or decline that office.” “That as the objects of this act are exceedingly benevolent, and do real honor to the humanity and justice of Congress, and as the judges desire to manifest, on all proper occasions and in every proper manner their high respect for the national legislature, they will execute this act in the capacity of commissioners.” “That as the legislature has a right to extend the session of this court for any term which it may think proper by law to assign, the term of five days, as directed by this act, ought to be punctually observed.” “That the judges of this court will, as usual, during the session thereof, adjourn the court from day to day or other short periods as circumstances may render proper, and that they will regularly, between the adjournments, proceed as commissioners to execute the business of this act in the same courtroom or chamber.” nolu chan  posted on  2015-07-30   22:34:45 ET  Reply   Trace   Private Reply   #225. To: tpaine (#223) Yep, those branches of gov can and have ignored SCOTUS opinions that they consider unconstitutional. -- This is their duty, under the provisions of the supremacy clause, Article VI.... Only in tpaine's Court of the Imagination. U.S. Supreme Court United States v. Peters, 9 U.S. (5 Cranch) 115 (1809) Mr. Chief Justice MARSHALL delivered the opinion of the Court. With great attention, and with serious concern, the Court has considered the return made by the Judge for the District of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others v. Rittenhouse’s Executrixes, or to show cause for not so doing. The cause shown is an act of the Legislature of Pennsylvania, passed subsequent to the rendition of his sentence. This act authorizes and requires the Governor to demand, for the use of the State of Pennsylvania, the money which had been decreed to Gideon Olmstead and others, and which was in the hands of the executrixes of David Rittenhouse; and, in default of payment, to direct the Attorney General to institute a suit for the recovery thereof. This act further authorizes and requires the Governor to use any further means he 9 U. S. 136 may think necessary for the protection of what it denominates “the just rights of the State,” and also to protect the persons and properties of the said executrixes of David Rittenhouse, deceased, against any process whatever, issued out of any federal Court in consequence of their obedience to the requisition of the said act. If the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all, and the people of Pennsylvania, not less than the citizens of every other State, must feel a deep interest in resisting principles so destructive of the union, and in averting consequences so fatal to themselves. The act in question does not, in terms, assert the universal right of the State to interpose in every case whatever, but assigns, as a motive for its interposition in this particular case, that the sentence the execution of which it prohibits was rendered in a cause over which the federal Courts have no jurisdiction. If the ultimate right to determine the jurisdiction of the courts of the Union is placed by the Constitution in the several State legislatures, then this act concludes the subject; but if that power necessarily resides in the supreme judicial tribunal of the nation, then the jurisdiction of the District Court of Pennsylvania over the case in which that jurisdiction was exercised ought to be most deliberately examined, and the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question. [snip] The Federalist No. 81 May 28, 1788 Publius [Alexander Hamilton] [excerpt] But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity. These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended. nolu chan  posted on  2015-07-30   23:18:32 ET  Reply   Trace   Private Reply   #226. To: nolu chan (#225) --- you go further to claim that the Executive and Legislative branches are empowered to ignore SCOTUS decisions by some hitherto unknown magical power bestowed by the Supremacy Clause. Read the clause. It says that all officials of our republic are duty bound to honor our Constitution as the supreme law. -- Which gives them the power to ignore unconstitutional 'laws'. ( At their own peril, of course) --- This concept is called 'checks and balances', and without it, we would have a tyranny run by smart assed wannabe lawyers, like you. Justice Story wrote that "the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy." --- You vividly imagine that this statement confirming the authority to exercise judicial review somehow supports your brain fart. You imagine that I'm having brain farts, while your own theories about our Constitution are akin to a bag of noxious fumes.. Continuing your remedial education. All you're continuing is your repetitive postings of facts not in contention, in an unsuccessful, obsessive effort to gloss over the FACT that you do NOT support our Constitution's checks and balances doctrine. Poor you, stuck on stupid repetitions. tpaine  posted on  2015-07-31   8:17:29 ET  Reply   Trace   Private Reply         .       .       . 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