U.S. Constitution
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Title: GOP rep: 'No president is allowed to burn the First Amendment’
Source:
The Hill
URL Source: http://thehill.com/homenews/house/3 ... ed-to-burn-the-first-amendment
Published: Nov 30, 2016
Author: Mark Hensch
Post Date: 2016-11-30 19:10:50 by Hondo68
Keywords: Impeach Trump, scofflaw, hates BOR
Views: 99784
Comments: 265
Rep. Justin Amash (R-Mich.) on Tuesday defended the constitutionality of flag burning, saying President-elect Donald Trump would violate freedom of speech if he cracked down on it. "Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment," Amash tweeted. Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment. https://t.co/nVkq6WcbHV— Justin Amash (@justinamash) November 29, 2016 Trump earlier Tuesday floated severe penalties for flag burning, mentioning loss of citizenship or a year in jail. “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he tweeted. Trump did not specify what inspired his 7 a.m. tweet about flag burning, which is considered protected speech under U.S. law. The Supreme Court ruled in Texas v. Johnson in 1989 that burning the American flag is allowed under the First Amendment. A spokesman for Trump on Tuesday said he agrees with Trump that the controversial act should be outlawed. “I think most Americans would agree with me that flag burning should be illegal. It’s completely despicable,” Jason Miller told CNN’s “New Day." Rep. Sean Duffy (R-Wis.) told CNN he disagrees with Trump, though. “I don’t think we want to make this a legal issue. So I disagree with Mr. Trump on that, and the court is probably right," Duffy said. “I think the court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it.” House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech. “We have a First Amendment right. We’ll protect our First Amendment. That’s what the court has upheld,” he said on MSNBC’s “Morning Joe” on Tuesday. Poster Comment:
House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech
Already there are the beginnings of an impeach Trump movement in the HOR, and he hasn't even taken office yet. (1 image)
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#1. To: hondo68 (#0)
In Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court held that "insulting or 'fighting words,' -- those that by their very utterance inflict injury or tend to incite an immediate breach of the peace -- are not protected by the first amendment. Burning the flag is no different than fighting words. Or, it can be argued that burning the flag is hate speech and is not protected. Or that burning the flag is "likely to incite imminent lawless action". Three reasons why burning the flag is not protected by the first amendment.
And all 3 reasons are meaningless because the courts have consistently ruled that flag burning is a form of political free speech. I personally wouldn't have it any other way. Seems to me we have the enemy identifying themselves. Seems like win/win to me.
5/4 1989 Time to return to original intent.
Original Intent was FREE SPEECH in ALL it's many forms,and NO speech was to be freer than "Political Speech". Be careful what you ask for,lest you get it.
“[N]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech...” - Judge Richard Posner
Interesting that you would quote someone like Posner as a source for your dementia. Judge Richard Posner: ‘No value’ in studying the U.S. Constitution “I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.” Posner has written several opinions sympathetic to abortion rights, including a decision that held that late term abortion was constitutionally protected in some circumstances.[20] In November 2015 Posner authored a decision in Planned Parenthood of Wisconsin, inc., et al. v. Brad D. Schimel striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They [Wisconsin] may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion. Posner opposes the US "War on Drugs" and called it "quixotic". In a 2003 CNBC interview he discussed the difficulty of enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at Elmhurst College in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana. At the Cybercrime 2020: The Future of Online Crime and Investigations conference held at Georgetown University Law Center on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine. ... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you." Posner also criticized mobile OS companies for enabling end-to-end encryption in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said In September 2014, Posner authored the opinions in the consolidated cases of Wolf v. Walker and Baskin v. Bogan challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that Indiana and Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling.[4] During oral arguments, Wisconsin's Attorney General cited tradition as a reason for maintaining the ban, prompting Posner to note that: "It was tradition to not allow blacks and whites to marry – a tradition that got swept away." Posner claimed that the same-sex marriage bans were both "a tradition of hate" and "savage discrimination".[36] Posner wrote the opinion for the unanimous panel, suggesting the laws unconstitutional under the Equal Protection Clause. The Supreme Court then denied writ of certiorari and left Posner's ruling to stand. Today, although generally viewed as to the right in academia, Posner's pragmatism, his qualified moral relativism and moral skepticism,[16] and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time. In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy. Obama’s Favorite Law Professor (The apple doesn't fall far from the tree) Eric Posner hates freedom of speech. The University of Chicago law prof made this clear in an article for Slate in 2012 titled “The World Doesn’t Love the First Amendment.” “Americans,” Posner wrote, “need to learn that the rest of the world — and not just Muslims — see no sense in the First Amendment,” and realize that “they might have a point.” Posner, son of Judge Richard Posner and a former classmate of President Barack Obama at Harvard Law School, likened the First Amendment to a “dear old uncle who enacted heroic deeds in his youth but on occasion says embarrassing things about taboo subjects in his decline.” Now Posner has weighed in on freedom of the press. Turns out he’s against that, too. In the case in question, New York Times reporter James Risen is being ordered by the federal government to name his source for a story about an attempt by the CIA to scuttle Iran’s nuclear weapons program. This is part of the Obama administration’s alleged “war on whistleblowers.” Risen is being ordered to testify in the government’s case against former CIA hand James Sterling. Posner, who must be one of Obama’s favorite law professors after he sided with the censors on Benghazi and argued the president could unilaterally lift the debt limit with few consequences, is very much rooting against the journalists. The prof argues the press has “not earned our trust.” Why, “if the Supreme Court were to create a reporter’s privilege, it would encourage leaks that ought to be plugged.” Official White House mouthpiece Jay Carney couldn’t have said it better.
Flag burning isn't particularly high tech. Even you could figure out how to do it.
Seriously? That's the best your feeble mind can come up with? I see you are afraid to own up to your apparent worship of a leftist like Posner. Sucks to be you.
Historical facts are historical facts. I know that's way beyond your ken.
Posner: "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you." Hmmm...where have we heard that type of statement before? Oh, I know..
Godwin's law. "The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not unconstitutional..." - Halter v. Nebraska, 205 U.S. 34 (1907)
Halter was brought under the 14th Amendment regarding use of the flag in advertising, and not as a case of individual free speech. The court ruled, "we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer." https://supreme.justia.com/cases/federal/us/205/34/case.html U.S. Supreme Court Halter v. Nebraska, 205 U.S. 34 (1907) Halter v. Nebraska No. 174 Submitted January 23, 1907 Decided March 4, 1907 [excerpts] The plaintiffs in error were proceeded against by criminal information upon the charge of having, in violation of the statute, unlawfully exposed to public view, sold, exposed for sale, and had in their possession for sale a bottle of beer upon which, for purposes of advertisement, was printed and painted a representation of the flag of the United States. Page 205 U. S. 39 The defendants pleaded not guilty, and at the trial insisted that the statute in question was null and void as infringing their personal liberty guaranteed by the Fourteenth Amendment of the Constitution of the United States and depriving them, as citizens of the United States, of the right of exercising a privilege impliedly, if not expressly, guaranteed by the federal Constitution; also that the statute was invalid in that it permitted the use of the flag by publishers, newspapers, books, periodicals, etc., under certain circumstances, thus, it was alleged, discriminating in favor of one class and against others. These contentions were overruled, and the defendants, having been found guilty by a jury, were severally adjudged to pay a fine of $50 and the costs of the prosecution. Upon writ of error, the judgments were affirmed by the Supreme Court of Nebraska, and the case has been brought here upon the ground that the final order in that court deprived the defendants, respectively, or rights specially set up and claimed under the Constitution of the United States. It may be well at the outset to say that Congress has established no regulation as to the use of the flag, except that in the act approved February 20th, 1905, authorizing the registration of trademarks in commerce with foreign nations and among the states, it was provided that no mark shall be refused as a trademark on account of its nature "unless such mark . . . consists of or comprises the flag or coat of arms or other insignia of the United States, or any simulation thereof, or of any state or municipality, or of any foreign nation." 33 Stat. 724, § 5. - - - - - - - - - - Page 205 U. S. 43 in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation -- which, in itself, cannot belong, as property, to an individual -- has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.
Dear Shit for Brains:
Advertising is speech. Advertising using the U.S. flag on a beer bottle is not protected free speech. The court clearly stated: "we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer." Which part are you having difficulty understanding. It's the court opinion YOU cited. You should have tried reading it, shit for brains.
Protected by who, shit for brains?
Protected by who, shit for brains? At your #37, YOU cited and quoted a 1907 opinion of the U.S. Supreme Court as precedent. According to the precedent YOU cited, and from which you quoted, using the U.S. flag on bottles of beer for advertising purposes is not protected free speech. The case you cited was not a 1st Amendment case at all. It was brought under the 14th Amendment which you would have known if you had bothered to read it. As had been demonstrated in my #6, Texas v. Johnson, 491 U.S. 397 (1989) indicates, (a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 491 U. S. 402-406. (b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O'Brien, 391 U. S. 367, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited Page 491 U. S. 398 on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. Flag burning constituting expressive conduct is protected by the 1st Amendment of the U.S. Constitution. Texas v. Johnson, 491 U.S. 397 (1989) is the prevailing precedent on flag burning. The happy horseshit you posted was a 14th Amendment case about using the U.S. flag as advertising on beer bottles.
Not protected by who, shit for brains?
You can ask and ask and he'll never get it. So it's lesson time. Back in 1907, before the 14th amendment was perverted by activist judges, the Bill of Rights first amendment did NOT apply to the states. Gasp! Meaning that states were allowed to pass any laws they wished restricting any activity mentioned by the first amendment. Oh how I long for the days of a federal republic.
Back in 1869 the 14th Amendment was passed. It went into effect 38 years before 1907. The 1907 case was a 14th Amendment case. It did not set a first amendment precedent then, and it is uncitable for such purpose now.
Yes. But it wasn't perverted by liberal justices until decades later. Freedom of speech wasn't "incorporated" until 1925, in Gitlow v. New York. Meaning neither the federal government nor the federal Bill of Rights had anything to do with that 1907 case.
Freedom of speech wasn't "incorporated" until 1925, in Gitlow v. New York. Meaning neither the federal government nor the federal Bill of Rights had anything to do with that 1907 case. Whatever you say. But no matter how you disagree with the justices, their opinion is the one that counts, not yours. Texas v. Johnson, 491 U.S. 397 (1989) (see #6) is a First Amendment case, directly on point about flag burning. Halter v. Nebraska, 205 U.S. 34 (1907) (see #37) is not a First Amendment case and it is not on point about flag burning. It is a 14th Amendment case concerning commercial advertising on beer bottles. Even if Halter could be magically construed to be a First Amendment case related to flag burning, it could still not be cited as precedent over the more recent case, Johnson. Halter is irrelevant to the discussion, as the irrelevant pictures of beer cans. Resort to denigrating a Supreme Court decision as 5-4 (#101), as if that means anything, is fruitless. A 5-4 decision is just as enforceable as a 9-0 decision. Obergefell was 5-4 and it struck down every state law in the land prohibiting same-sex marriage. Neither will resort to citing Gitlow (1925), or your perception of 14th Amendment perversion, change the prevailing binding precedent set by Johnson in 1989. As Antonin Scalia, no perverter of the Constitution, said, So, stop running about espousing the ideas of tyrants. Join with the conservative, original constructionist Justice Scalia, and reject tyranny. Give up trying to be king. Americans do not want a king. Flag burning is a form of protected free speech. Work yourself through the seven stages of grief. You seem to be stuck on denial and anger.
He's dead. And he's wrong. He's dead wrong. The court could rule tomorrow that flag burning is hate speech or 'fighting words' or incites violence. If every time someone burned a flag they got the shit kicked out of them and sent to the hospital, the court would rule that way in a hurry. Is that what you want?
The court could rule tomorrow that flag burning is hate speech or 'fighting words' or incites violence. The court could rule tomorrow that they got it wrong in Brown v. Topeka Board of Education and bring back segregation. One can posit that the court could rule any dumb thing one can imagine. If you entertain a good faith belief that the court will rule that flag burning is hate speech or "fighting words," or incites violence, or is an illegal act, I strongly support a course of therapy. You are fully entitled to your opinion that the Supreme Court is wrong on just about everything. Their opinion is the law, and yours and mine are not.
My point is that there is no "constitutional crisis" created by making flag burning illegal. The U.S. Supreme Court simply declares that behavior to be hate speech or "fighting words," or that it incites violence, or is an illegal act. Done.
Done. And that is still as ridiculous a presumption as the Court ruling that Brown was wrong and separate but equal was decided correctly in Plessy. Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson. Not too long ago there was a proposed constitutional amendment that cleared the House but not the Senate. If it is to change any time soon, it will be by an amendment. PROPOSED FLAG DESCECRATION AMENDMENT An amendment proposal almost made it to the states in 2005. https://www.congress.gov/bill/109th-congress/house-joint-resolution/10 H.J.Res.10 - Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States. 109th Congress (2005-2006) Sponsor: Rep. Cunningham, Randy (Duke) [R-CA-50] (Introduced 01/25/2005) Committees: House - Judiciary Committee Reports: H. Rept. 109-131 Latest Action: 06/22/2005 Motion to reconsider laid on the table Agreed to without objection. - - - - - - - - - - https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12 109th Congress (2005-2006) Sponsor: Sen. Hatch, Orrin G. [R-UT] (Introduced 04/14/2005) Committees: Senate - Judiciary Latest Action: 06/27/2006 Failed of passage in Senate by Yea-Nay Vote. 66 - 34. Record Vote Number: 189.
Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game." If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states. I think everyone has had enough of this f**king judicial oligarchy.
And you could hold your breath until you turn blue. The Executive and Legislature cannot overturn a SCOTUS decision interpreting the Constitution. Continuing the argument to its logical conclusion, the Executive could use the army to imprison the judges and legislatures, and the President could proclaim himself King. In theory, the Congress could totally defund the Executive and Judicial branches by doing nothing. Before the Executive and Legislative engage in nonsense, they could initiate an amendment and give it to the states for ratification. There is a reasonable chance that 3/4ths of the states would ratify it.
No. I said they could threaten to eliminate judicial review in the hope that the U.S.Supreme Court would come to it's senses. Only if the U.S. Supreme Court refused to recognize the will of the people would Congress act.
Only if the U.S. Supreme Court refused to recognize the will of the people would Congress act. The U.S. Supreme Court is a court of law. It is not there to "recognize the will of the people." It is there to interpret the law as it is, and render decisions in accordance with the law. It is not there to stick a finger in the wind, or rule in accordance with the latest opinion poll. Congress can act to change the law via statute, or the Constitution can be amended pursuant to Article 5. Threatening to eliminate judicial review would be threatening to overthrow the lawfully established form of government.
The Roe v Wade decision was based on an "emanation from a penumbra" in response to the will of the people at the time. There is nothing in the U.S. Constitution which protects the right of mothers to kill their unborn children. And that's one example of maybe 10 that come to mind. "Threatening to eliminate judicial review would be threatening to overthrow the lawfully established form of government." Baloney. Our lawfully established form of government allows the elimination of judicial review via the U.S. Constitution, Article III, Section 2.
Shit-For-Brains loves judicial legislation, almost as much as he hates original intent.
Ohhhh, having 50 different laws is so messy and confusing. It's much better to have five unelected and unaccountable justices decide how all of us should live. And if you don't like it, amend the U.S. Constitution.
I am still studying the issue, but here are the bones of the solution. Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally. In any case dependent on the resolution of a question of the constitutionality of an act of Congress, the Court would be allowed to proceed only with the explicit permission of Congress. That permission could be either conditional or unconditional, depending on Congressional will as expressed in the permission granted to the Court in the specific case. I'll return this proposed solution with additional details after a brief discussion of the history of judicial review. Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary. Brutus, the antifederalist, predicted this in his Essay No. XV, when he observed that federal judges would "extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion." We have now arrived at the point where the Court arrogantly and unconstitutionally legislates from the bench at will, assuming powers reserved to Congress. Allowing that to continue undermines our republican form of government and the rule of law. By subjecting the Court to limitations upon such usurpations, Congress could reestablish America's lost balance of powers. A statutory solution provides tremendous opportunities for flexible and innovative solutions, especially with the guidance of a President with great negotiation skills. With that in mind, the following is little more than a very rough first draft for possible statutory construction. Congress would require the Court to submit a request to engage in judicial review on a case-by-case basis, with the Court given an opportunity to provide Congress with a justification for the request. If the justification was sufficiently compelling, Congress might allow the Court to proceed unconditionally, if it so chose. Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities. Personally, I would prefer Congress to impose its will on the Court without any regard to the feelings of the corrupt justices controlling it. However, Congress could take (or pretend to take) a more concilliatory approach, treating the solution as some form of partnership between the two branches. (Such as a binding Memorandum of Understanding or something similar.) Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege. Anyway, like I said, first conceptual draft.
Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The court opines on cases or controversies before the court, pursuant to U.S. Const. Art 3, Sec. 2, Cl. 1, Case or Controversy provision.
"Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257. Poor Shit-For-Brains.
[Roscoe #165] Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege. Laurence Tribe, American Constitutional Law, 3 Ed, p. 207, note 3: - - - - - - - - - - Continuing your public display of being dumb, stupid and ignorant about U.S. law and the U.S. legal system, Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The court opines on cases or controversies before the court, pursuant to U.S. Const. Art 3, Sec. 2, Cl. 1, Case or Controversy provision. "Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257. Poor Shit-For-Brains. George Washington, via Thomas Jefferson, asked if he could receive an advisory opinion from the U.S. Supreme Court. Correction to my #170, it was Jefferson and not Hamilton who wrote on behalf of President George Washington. Philadelphia July 18, 1793 Gentlemen: The war which has taken place among the powers of Europe produces frequent transactions within our ports and limits, on which questions arise of considerable difficulty, and of greater importance to the peace of the United States. These questions depend for their solution on the construction of our treaties, on the laws of nature and nations, and on the laws of the land, and are often presented under circumstances which do not give a cognisance of them to the tribunals of the country. Yet their decision is so little analogous to the ordinary functions of the executive, as to occasion much embarrassment and difficulty to them. The President therefore would be much more relieved if he found himself free to refer questions of this description to the opinions of the judges of the Supreme Court of the United States, whose knowledge of the subject would secure us against errors dangerous to the peace of the United States, and their authority to insure the respect of all parties. He has therefore asked the attendance of such of the judges as would be collected in time for the occasion, to know, in the first place, their opinion, whether the public may, with propriety, be availed of their advice on these questions? And if they may, to present, for their advice, the abstract questions which have already occurred, or may soon occur, from which they will themselves strike out such as any circumstances might, in their opinion, forbid them to pronounce on. I have the honour to be with sentiments of the most perfect respect, gentlemen, Your most obedient and humble servant, - - - - - - - - - - John Jay responded that the U.S. Supreme Court that the Court could not do so. Philadelphia August 8, 1793 Sir: We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on [July 18, on the topic of] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments. We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States. We have the honor to be, with perfect respect, sir, your most obedient and humble servants. - - - - - - - - - - The supreme Court spoke to the action of the Circuit Court in its later case of United States v. Ferreira. https://supreme.justia.com/cases/federal/us/54/40/case.html United States v. Ferreira, 54 U.S. 13 How. 40 (1851) - - - - - - - - - - https://supreme.justia.com/cases/federal/us/514/211/case.html Plaut et al v Spendthrift Farm, Inc, et al, 514 US 211 (1994) We think, however, that § 27 A(b) offends a postulate of Article III just as deeply rooted in our law as those we have mentioned. Article III establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177 (1803). The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy—with an understanding, in short, that "a judgment conclusively resolves the case" because "a 'judicial Power' is one to render dispositive judgments." Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle. https://supreme.justia.com/cases/federal/us/530/327/case.html Miller v. French, 530 U.S. 327 (2000) [...] Hayburn's Case arose out of a 1792 statute that authorized pensions for veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. The statute provided that the circuit courts were to review the applications and determine the appropriate amount of the pension, but that the Secretary of War had the discretion either to adopt or reject the courts' findings. Hayburn's Case, supra, at 408-410. Although this Court did not reach the constitutional issue in Hayburn's Case, the statements of five Justices, acting as circuit judges, were reported, and we have since recognized that the case "stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch." Plaut, supra, at 218; see also Morrison v. Olson, 487 U. S. 654, 677, n. 15 (1988). As we recognized in Plaut, such an effort by a coequal branch to "annul a final judgment" is "'an assumption of Judicial power' and therefore forbidden." 514 U. S., at 224 (quoting Bates v. Kimball, 2 Chipman 77 (Vt. 1824)). Unlike the situation in Hayburn's Case, § 3626(e)(2) does not involve the direct review of a judicial decision by officials of the Legislative or Executive Branches. Nonetheless, the prisoners suggest that § 3626(e)(2) falls within Hayburn's prohibition against an indirect legislative "suspension" or reopening of a final judgment, such as that addressed in Plaut. See Plaut, supra, at 226 (quoting Hayburn's Case, supra, at 413 (letter of Iredell, J., and Sitgreaves, D. J.) ("'[N]o decision of any court of the United States can, under any circumstances, ... be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested' ")). In Plaut, we held that a federal statute that required federal courts to reopen final judgments that had been entered before the statute's enactment was unconstitutional on separation of powers grounds. 514 U. S., at 211. The plaintiffs had brought a civil securities fraud action seeking money damages. Id., at 213. While that action was pending, we ruled in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991), that such suits must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation. In light of this intervening decision, the Plaut plaintiffs' suit was untimely, and the District Court accordingly dismissed the action as time barred. Plaut, supra, at 214. After the judgment dismissing the case had become final, Congress enacted a statute providing for the reinstatement of those actions, including the Plaut plaintiffs', that had been dismissed under Lampf but that would have been timely under the previously applicable statute of limitations. 514 U. S., at 215. We concluded that this retroactive command that federal courts reopen final judgments exceeded Congress' authority. Id., at 218-219. The decision of an inferior court within the Article III hierarchy is not the final word of the department (unless the time for appeal has expired), and "[i]t is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress's latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must 'decide according to existing laws.'" Id., at 227 (quoting United States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). But once a judicial decision achieves finality, it "becomes the last word of the judicial department." 514 U. S., at 227. And because Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy," id., at 218-219, the "judicial Power is one to render dispositive judgments," and Congress cannot retroactively command Article III courts to reopen final judgments, id., at 219 (quoting Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990) (internal quotation marks omitted)).
[Roscoe] Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege. [Shit-For-Brains] congress could not require federal courts to provide the executive branch with advisory opinions An invitation is not a requirement, Shit-For-Brains. The Court would be free to refuse. Then Congress would be free to deny appellate jurisdiction, per its explicit constitutional power. [Roscoe] "Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257. [Shit-For-Brains] Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The Constititution wasn't amended between the Hayburn advisory opinions provided by multiple judges and Justices, and Jay's refusal. Jay's refusal did not amend the Constitution either, Shit-For- Brains. [Shit-For-Brains] "'[N]o decision of any court of the United States can, under any circumstances, ... be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested' " Non sequitur, Shit-For-Brains. The invitation is prior to decision. Prior even to appellate review.
And you are still full of shit, and spinning as usual. You may call me names, but I can document for the world to see that you have no idea what the hell you are talking about. At the Constitutional Convention, on August 20, 1787 James Madison offered the following provision for consideration: "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341. The devious Progressive-Statist Cabal of Framers, foreseeing the events which have only now arisen, corruptly failed to adopt Madison's proposal, initiating a more than two-century old conspiracy. /s The federal courts have refused any and all "invitations" to issue any advisory opinion, any and all of your bullshit to the contrary notwithstanding. Issuance of advisory opinions is prohibited by the federal courts. As you were evidently too dumb, stupid and ignorant to understand the John Jay letter on first reading, read it again. Perhaps it may penetrate. John Jay responded that the U.S. Supreme Court that the Court could not issue an advisory opinion. Philadelphia August 8, 1793 Sir: We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on [July 18, on the topic of] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments. We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States. We have the honor to be, with perfect respect, sir, your most obedient and humble servants. - - - - - - - - - - The President only has the power to call on executive departments for advisory opinions. If you were not so dumb, stupid and ignorant, you would realize that the federal courts cannot issue advisory opinions. They have not issued advisory opinions, except in your vivid imagination. An advisory opinion issued by the Supreme Court justices would make them all recuse themselves in a subsequent related case. As the federal judiciary has always refused to issue any advisory opinion, your bullshit is essentially meaningless. To the extent that you propose that Congress has any authority to limit the appeallate jurisdiction of the U.S. Supreme Court to effect a limitation upon any constitutional right, as coment on this thread supposes, you are just full of shit. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Boumediene v. Bush, 553 U.S. 723 (2008), and my #222. For example, from Hamdan, "the Supreme Court, on June 12, 2008, held, among other things, that a provision denying habeas corpus jurisdiction to federal courts amounted to an unconstitutional suspension of the writ, in violation of Article I, section 9 of the Constitution." Plaut et al v Spendthrift Farm, Inc, et al, 514 US 211 (1994) Plaut Syllabus at 211, Held: Plaut at 219: Plaut at 221-222: 222 eralist No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature ... in many instances decided rights which should have been left to judiciary controversy." Id., at 336 (emphasis deleted).4 If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, § 1, in The Federalist No. 81: The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated," but the power of "[t]he interpretation of the laws" would be "the proper and peculiar province of the courts." Id., No. 78, at 523, 525. Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73:
#229. To: nolu chan (#224)
No "requirement" was called for. I already spanked you once on that feeble and dishonest strawman, Shit-For-Brains. I guess ya like being humiliated.
Top • Page Up • Full Thread • Page Down • Bottom/Latest
#17. To: misterwhite (#1)
Three reasons why burning the flag is not protected by the first amendment.
#18. To: sneakypete (#17)
(Edited)
courts have consistently ruled
#22. To: Roscoe (#18)
Time to return to original intent.
#23. To: sneakypete (#22)
Original Intent was FREE SPEECH in ALL it's many forms
#26. To: Roscoe, sneakypete, hondo68 (#23)
(Edited)
Judge Richard Posner
Abortion
Drugs
National Security
Same-sex marriage
#29. To: Deckard (#26)
“Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”
#30. To: Roscoe (#29)
(Edited)
#31. To: Deckard (#30)
#34. To: Roscoe (#31)
Historical facts are historical facts.
#37. To: Deckard (#34)
#41. To: Roscoe, Deckard (#37)
"The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not unconstitutional..." - Halter v. Nebraska, 205 U.S. 34 (1907)
The act, among other things, makes it a misdemeanor, punishable by fine or imprisonment, or both, for anyone to sell, expose for sale, or have in possession for sale, any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States. It expressly excepted, however, from its operation any newspaper, periodical, book, etc., on which should be printed, painted, or placed a representation of the flag "disconnected from any advertisement." 1 Cobbey's Ann.Stat.Neb. 1903, c. 139.
By the statute in question, the state has in substance declared that no one subject to its jurisdiction shall use the flag for purposes of trade and traffic -- a purpose wholly foreign to that for which it was provided by the nation. Such a use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of national power and national honor. And we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good. Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property
#68. To: nolu chan (#41)
Halter was brought under the 14th Amendment regarding use of the flag in advertising, and not as a case of individual free speech.
#72. To: Roscoe (#68)
Dear Shit for Brains:
#77. To: nolu chan (#72)
protected free speech.
#80. To: Roscoe (#77)
protected free speech.
Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 491 U. S. 402-420.
#82. To: nolu chan (#80)
using the U.S. flag on bottles of beer for advertising purposes is not protected free speech.
#85. To: Roscoe, nolu chan (#82)
"Not protected by who, shit for brains?"
#121. To: misterwhite (#85)
Back in 1907, before the 14th amendment was perverted by activist judges, the Bill of Rights first amendment did NOT apply to the states. Gasp!
#125. To: nolu chan (#121)
"Back in 1869 the 14th Amendment was passed."
#128. To: misterwhite (#125)
Yes. But it wasn't perverted by liberal justices until decades later.
Yes. But it wasn't perverted by liberal justices until decades later.
“If I were king, I wouldn’t go about letting people burn the American flag,” Scalia told Piers Morgan in the above interview. “However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king,” Scalia said at Princeton University in 2015.
Scalia, who died in February 2016, was on the U.S. Supreme Court when two cases centering on flag burning came up – Texas v. Johnson (1989) and United States v. Eichman (1990). In both cases, Scalia voted to protect flag burning as a form of protected free speech and agreed with the majority opinions written by William J. Brennan Jr.
#130. To: nolu chan (#128)
"Join with the conservative, original constructionist Justice Scalia"
#132. To: misterwhite (#130)
He's dead. And he's wrong. He's dead wrong.
#136. To: nolu chan (#132)
"If you entertain a good faith belief that the court will rule that flag burning is hate speech or "fighting words," or incites violence, or is an illegal act"
#137. To: misterwhite (#136)
My point is that there is no "constitutional crisis" created by making flag burning illegal. The U.S. Supreme Court simply declares that behavior to be hate speech or "fighting words," or that it incites violence, or is an illegal act.
06/22/2005-2:38pm
On passage Passed by the Yeas and Nays: (2/3 required): 286 - 130 (Roll no. 296). (text: CR H4904)
Action By: House of Representatives S.J.Res.12 - A joint resolution proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States.
#138. To: nolu chan (#137)
"Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson."
#139. To: misterwhite (#138)
Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."
#140. To: nolu chan (#139)
"And you could hold your breath until you turn blue."
#149. To: misterwhite (#140)
No. I said they could threaten to eliminate judicial review in the hope that the U.S.Supreme Court would come to it's senses.
#150. To: nolu chan (#149)
"It is not there to "recognize the will of the people. It is there to interpret the law as it is, and render decisions in accordance with the law."
#151. To: misterwhite (#150)
The Roe v Wade decision was based on an "emanation from a penumbra" in response to the will of the people at the time. There is nothing in the U.S. Constitution which protects the right of mothers to kill their unborn children.
#160. To: Roscoe (#151)
"Shit-For-Brains loves judicial legislation, almost as much as he hates original intent."
#165. To: misterwhite (#160)
It's much better to have five unelected and unaccountable justices decide how all of us should live.
#170. To: Roscoe (#165)
Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.
#172. To: nolu chan (#170)
Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers.
#206. To: Roscoe (#172)
Earlier, in opinions reported in connection with Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792), the Justices of the Supreme Court, in their capacity as Circuit Justices, had agreed, albeit in separate decisions, that congress could not require federal courts to provide the executive branch with advisory opinions as to the validity of pension claims. In Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), the Supreme court considered whether, in taxing carriages, Congress had constitutionally enacted an unapportioned direct tax.
Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.
LETTER FROM SECRETARY OF STATE THOMAS JEFFERSON TO THE JUSTICES OF THE U.S. SUPREME COURT
Thos. Jefferson LETTER FROM CHIEF JUSTICE JOHN JAY AND THE ASSOCIATE JUSTICES OF THE U.S. SUPREME COURT TO PRESIDENT WASHINGTON
The judges of the Pennsylvania Circuit, consisting of Wilson and Blair, Justices of the Supreme Court, and Peters, District Judge, refused to execute it altogether upon the ground that it was conferred on them as a court, and was not a judicial power when subject to the revision of the Secretary of War and Congress.
Our decisions to date have identified two types of legislation that require federal courts to exercise the judicial power in a manner that Article III forbids. The first appears in United States v. Klein, 13 Wall. 128 (1872), where we refused to give effect to a statute that was said "[to] prescribe rules of decision to the Judicial Department of the government in cases pending before it." Id., at 146. Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress "amend[s] applicable law." Robertson v. Seattle Audubon Soc., 503 U. S. 429, 441 (1992). Section 27 A(b) indisputably does set out substantive legal standards for the Judiciary to apply, and in that sense changes the law (even if solely retroactively). The second type of unconstitutional restriction upon the exercise of judicial power identified by past cases is exemplified by Hayburn's Case, 2 Dall. 409 (1792), which stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 (1948). Yet under any application of § 27A(b) only courts are involved; no officials of other departments sit in direct review of their decisions. Section 27 A(b) therefore offends neither of these previously established prohibitions.
The Constitution enumerates and separates the powers of the three branches of Government in Articles I, II, and III, and it is this "very structure" of the Constitution that exemplifies the concept of separation of powers. INS v. Chadha, 462 U. S. 919, 946 (1983). While the boundaries between the three branches are not" 'hermetically' sealed," see id., at 951, the Constitution prohibits one branch from encroaching on the central prerogatives of another, see Loving v. United States, 517 U. S. 748, 757 (1996); Buckley v. Valeo, 424 U. S. 1, 121-122 (1976) (per curiam). The powers of the Judicial Branch are set forth in Article III, § 1, which states that the "judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," and provides that these federal courts shall be staffed by judges who hold office during good behavior, and whose compensation shall not be diminished during tenure in office. As we explained in Plaut v. Spendthrift Farm, Inc., 514 U. S., at 218-219, Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy."
#210. To: nolu chan (#206)
(Edited)
"This construction of the federal judicial power was not inevitable. In addition to the numerous advisory opinions given by the early Justices, English judges had a longstanding practice of issuing advisory opinions upon the monarch’s request. And federal judges and Justices have continued to give opinions informally, including through extrajudicial publications and interviews, dicta in judicial opinions, and ex parte advice to political actors... In fact, it has been suggested that the Jay Court was motivated by political rather than doctrinal factors in refusing to address Washington’s queries: the Justices were hoping that Congress would absolve them of their burden-some circuit-riding duties and were therefore unwilling to take sides in the neutrality controversy for fear of alienating potential supporters in the legislature. Jay and his brethren were seasoned political actors, and they were not the type to squander political capital unnecessarily, so they concocted a doctrinal excuse to avoid giving a direct answer to Washington." Harvard Law Review: Volume 124, Number 8 - June 2011
#224. To: Roscoe (#210)
An invitation is not a requirement, Shit-For-Brains. The Court would be free to refuse.
LETTER FROM CHIEF JUSTICE JOHN JAY AND THE ASSOCIATE JUSTICES OF THE U.S. SUPREME COURT TO PRESIDENT WASHINGTON
the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
Then Congress would be free to deny appellate jurisdiction, per its explicit constitutional power.
(b) Article III establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177. The Framers crafted this charter with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them conclusively, subject to review only by superior courts in the Article III hierarchy. Thus, the Constitution forbids the Legislature to interfere with courts' final judgments. Pp. 219-225.
The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. G. Wood, The Creation of the American Republic 1776-1787, pp. 154-155 (1969). Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. M. Clarke, Parliamentary Privilege in the American Colonies 49-51 (1943). See, e. g., Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208 (1902) (collecting documents from 1708-1709); 5 Laws of New Hampshire, Including Public and Private Acts, Resolves, Votes, Etc., 1784-1792 (Metcalf ed. 1916). Thus, as described in our discussion of Hayburn's Case, supra, at 218, such legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments.
The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." The Fed-
"It is not true ... that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act .... A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, p. 545 (J. Cooke ed. 1961).
The question whether a federal court has jurisdiction to review the constitutionality of a congressional withdrawal of jurisdiction is distinct from the question of what limitations the Constitution in fact imposes upon such legislation. Plainly, the usual limitations of the Bill of Rights and of Article I, § 9, apply: the paradigmatic example of an external constitutional limitation would be the undisputed prohibitions imposed by the Due Process and Free Speech Clauses on legislation that would, say, restrict access to the federal courts on the basis of a litigant's race, religion, gender or political affiliation or viewpoint. Moreover, laws designed to hinder the exercise of constitutional rights are, to that degree, unconstitutional. Likewise, even those jurisdictional statutes which unintentionally burden the exercise of such rights warrant strict scrutiny;24 thus, if busing were demonstrably the only remedy to effectuate one's right not to attend a segregated school, federal legislation limiting judicial power to order busing as a remedy would appear highly suspect. Even the withdrawal of a gratuity—whether in the form of a welfare payment that a state is not independently required to make25 or in the form of an extension of court jurisdiction that Congress is not independently compelled to provide—may be forbidden if it penalizes a separately secured right.26 Congress, in short, is not entirely at liberty to create free-fire zones around currently unpopular constitutional rights.27
Replies to Comment # 224. "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341.
End Trace Mode for Comment # 224.
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