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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: 99653
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.
Poor Shit-For-Brains. Re Hayburn's Case, Annals of Congress, 2nd Cong, 1st Sess, Appendix, pp 556-57 and 572-573, April 13 and 21, 1792, ltr fm judges April 18, 1792 [H. of R.] Proceedings. [April, 1792.] 556 Friday, April 13. [...] A memorial was presented from William Haburn, setting forth that he had applied yesterday to the Judges of the Circuit Court in this city to be put on the pension list pursuant to a late law of Congress; and that the Court having refused to take cognizance of his case, he was obliged to apply to Congress for relief. The sitting Judges were Messrs. Wilson, Blair, and Peters; and from an account which Mr. Boudinot gave in his place, it appeared that the Court thought the examination of invalids a very extraordinary duty to be imposed on the Judges; and looked on the law which imposes that duty as an unconstitutional one, inasmuch as it directs the Secretary of War to state the mistakes of the Judges to Congress for their revision; they could not, therefore, accede to a regulation tending to render the Judiciary subject to the Legislative and Executive powers, which, from a regard for liberty and the Constitution, ought to be kept carefully distinct; it being a primary principle of the utmost importance, that no decision of the Judiciary Department should, under any pretext, be brought in revision before either the Legislative or Executive Departments of the Government, neither of which have, in any instance, a revisionary authority over the judicial proceedings of the courts ot justice. Another objection on the part of the Judges was, that, whereas, there are laws now in force, prescribing a day, beyond which the Courts shall not sit; this new law declares that the Court shall sit five days for the purpose of hearing claims, whether they be offered or not; and leaves nothing to the discretion and integrity of the judges, to sit as long as they have public business to do. HISTORY OF CONGRESS. 557 This being the first instance in which a court of justice had declared a law of Congress to be unconstitutional, the novelty of the case produced a variety of opinions with respect to the measures to be taken on the occasion. At length a committee of five was appointed to inquire into the facts contained in the memorial, and to report thereon. During the course of the debate, it was mentioned that the Judges of the Circuit Court, in the State of New York, had consented to examine invalids pursuant to the law in question, but on this principle: Congress, they thought, have a right in appointing commissioners for any special purpose, to designate the persons, as well by any official titles with which they are vested, as by their proper names; wherefore, although they would not, in their judicial capacity, undertake the examination of invalids; yet, as commissioners, they devoted each day an hour to the business, after the adjournment of the Court. * Mr. Murray urged the necessity of passing a law to point out some regular mode in which the Judges of the Courts of the United States shall give official notice of their refusal to act under any law of Congress, on the ground of unconstitutionality. No regular motion, however, was made on the subject, which lies over for future consideration. Monday, April 16. Mr. Clark, from the committee to whom was referred the petition of the inhabitants of the town of Newark, praying compensation for an Academy which was destroyed by the. enemy during the late war, made a report; which was read, and ordered to he on the table. A Message was received from the President of the United States enclosing a copy of a Letter from the Judges of the Circuit Court of the United States, held for the New York district; and of their opinion and agreement respecting the "Act to provide for the settlement of the claims of widows and orphans, barred by the lirhitations heretofore established, and to regulate the claims to invalid pensions." The House resolved itself into a Committee of the Whole House on the bill sent from the Senate, entitled "An act for regulating processes in the Courts of the United States, and providing compensations for the officers of the said Courts, and for jurors and witnesses," together with the amendments thereto; and, after some time spent therein, the Chairman reported that the Committee had had the same under consideration, and made some amendments thereto; which were read, and ordered to lie on the table. The several orders of the day were further postponed until to-morrow. [...] - - - - - HISTORY OF CONGRESS. April [21], 1792, 572 [...] WIDOWS AND ORPHANS' CLAIMS. A Message was received from the President of the United States laying before Congress the copy of a letter which he had received from the Judges of the Circuit Court of the United States held for the Pennsylvania District, relatively to the "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." The copy of the Letter referred to in the said Message was read, as follows : Philadelphia, April 18, 1792. To the President of the United States : Sm: To you it officially belongs to "take care that the laws" of the United States "be 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." HISTORY OF CONGRESS. 573 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 behaviour;" and that "during their continuance in office, their salaries shall not be diminished." Congress have lately passed an act, "to regulate" (among other things) "the claims of 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: 1. 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. 2. 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 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. 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 feeling in us, which we hope never to experience again. We have the honor to be, with the most perfect consideration and respect, sir, your most obedient and very humble servants, JAMES WILSON, [...]
And because they thought the examination of invalids a very extraordinary duty to be imposed on the Judges, they offered advisory opinions to the Government, resulting in the modification of the statute. Nice foot shot, Shit-For-Brains.
No, you are just an imbecile who has dug himself a hole and who is trying to bullshit his way out. Black's Law Dictionary, 6th Ed. Erwin Chemerinsky, Constitutional Law, Third Edition, Aspen Publishers, 2009, p. 42: The core of Article III's requirement for cases and controversies is that federal courts cannot issue advisory opinions. What are the characteristics that must be present in a lawsuit to avoid being an advisory opinion? First, there must be an actual dispute between adverse litigants. At p. 44: Many other justiciability doctrines implement the prohibition against advisory opinions. What Wilson, Blair and Peters addressed to the President was not an advisory opinion. It was a courtesy letter stating why they had refused to proceed with the case. There was no official court proceeding. There was no advisory opinion from the court. Re Hayburn's Case, Annals of Congress, 2nd Cong, 1st Sess, Appendix, pp 556-57 and 572-573, April 13 and 21, 1792, ltr fm judges April 18, 1792 [H. of R.] Proceedings. [April, 1792.] 556 Friday, April 13. [...] A memorial was presented from William Haburn, setting forth that he had applied yesterday to the Judges of the Circuit Court in this city to be put on the pension list pursuant to a late law of Congress; and that the Court having refused to take cognizance of his case, he was obliged to apply to Congress for relief. The sitting Judges were Messrs. Wilson, Blair, and Peters; and from an account which Mr. Boudinot gave in his place, it appeared that the Court thought the examination of invalids a very extraordinary duty to be imposed on the Judges; and looked on the law which imposes that duty as an unconstitutional one, inasmuch as it directs the Secretary of War to state the mistakes of the Judges to Congress for their revision; they could not, therefore, accede to a regulation tending to render the Judiciary subject to the Legislative and Executive powers, which, from a regard for liberty and the Constitution, ought to be kept carefully distinct; it being a primary principle of the utmost importance, that no decision of the Judiciary Department should, under any pretext, be brought in revision before either the Legislative or Executive Departments of the Government, neither of which have, in any instance, a revisionary authority over the judicial proceedings of the courts ot justice. Another objection on the part of the Judges was, that, whereas, there are laws now in force, prescribing a day, beyond which the Courts shall not sit; this new law declares that the Court shall sit five days for the purpose of hearing claims, whether they be offered or not; and leaves nothing to the discretion and integrity of the judges, to sit as long as they have public business to do. HISTORY OF CONGRESS. 557 This being the first instance in which a court of justice had declared a law of Congress to be unconstitutional, the novelty of the case produced a variety of opinions with respect to the measures to be taken on the occasion. At length a committee of five was appointed to inquire into the facts contained in the memorial, and to report thereon. [...] HISTORY OF CONGRESS. April [21], 1792, 572 [...] WIDOWS AND ORPHANS' CLAIMS. A Message was received from the President of the United States laying before Congress the copy of a letter which he had received from the Judges of the Circuit Court of the United States held for the Pennsylvania District, relatively to the "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." The copy of the Letter referred to in the said Message was read, as follows : Philadelphia, April 18, 1792. To the President of the United States : Sir: To you it officially belongs to "take care that the laws" of the United States "be 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." HISTORY OF CONGRESS. 573 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 behaviour;" and that "during their continuance in office, their salaries shall not be diminished." Congress have lately passed an act, "to regulate" (among other things) "the claims of 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: 1. 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. 2. 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 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. 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 feeling in us, which we hope never to experience again. We have the honor to be, with the most perfect consideration and respect, sir, your most obedient and very humble servants, JAMES WILSON, [...] And in case it still did not penetrate your extraordinarily thick skull, there is the following: Flast v. Cohen, 392 U.S. 83 (1968) [...] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. [...] And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). [...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963). Footnote 14 of Flast reads: In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said: We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)] "From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)] "This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)]
The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop. Another swing and a miss, Shit-For-Brains.
nc #225 U.S. Supreme Court Flast v. Cohen, 392 U.S. 83 (1968) [...] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. [...] And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). [...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963). Footnote 14 of Flast reads: The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein. In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said: The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions." We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)] "From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)] "This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)] [Shithead Roscoe] The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop. Another swing and a miss, Shit-For-Brains. What an ignorant shithead. And what a weak response. The federal courts have refused to issue an advisory opinion since first asked for one in 1790. It seems my memory of Secretary Alexander Hamilton seeking an advisory opinion and being rebuffed by Chief Justice John Jay was not misplaced after all. Hamilton's effort was in 1790 and Jefferson's effort was in 1793. Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77: The case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to assume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must either be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, noting that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments. Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress. - - - - - - - - - - - - - - - - - - - - Randy E. Barnett, Constitutional Law, Aspen Publishers 2008, pp. 887-88: 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. In response to these objections, Congress modified its pension scheme to eliminate this role of the judiciary. That is not an advisory opinion. It is an explanation of why the court refused to be used to participate in an unconstitutional scheme developed by the legislative branch. - - - - - - - - - - - - - - - - - - - - Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1: - - - - - - - - - - - - - - - - - - - -
Punubral emanations? Figures. Your kind always conflates policy and law, SFB. Congress has an EXPLICIT right to to strip the Court of appellate jursidiction over Constitutional rationalizations for assuming legislative powers, SFB. And I explicitly noted before, the Court may decline to offer any justifications for waiver requests. You're terrified of engaging the actual arguments.
There are no replies to Comment # 246. End Trace Mode for Comment # 246.
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.
#207. To: Roscoe (#172)
"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.
HISTORY OF CONGRESS.
JOHN BLAIR,
RICHARD PETERS.
#212. To: nolu chan (#207)
(Edited)
the Court thought the examination of invalids a very extraordinary duty to be imposed on the Judges; and looked on the law which imposes that duty as an unconstitutional one,
#225. To: Roscoe (#212)
And because they thought the examination of invalids a very extraordinary duty to be imposed on the Judges, they offered advisory opinions to the Government, resulting in the modification of the statute.
Advisory opinion. Such may be rendered by a court at the request of the government ore an interested party indicating how the court would rule on a matter should adversary litigation develop. An advisory opinion is thus an interpretation of the law without binding effect. While the International Court of Justice and some state courts will render advisory opinions the federal courts will not; their jurisdiction being restricted to cases or controversies.
a. Prohibition of Advisory Opinions
NOTES ON ADVISORY OPINIONS
HISTORY OF CONGRESS.
JOHN BLAIR,
RICHARD PETERS. U.S. Supreme Court
The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein.
The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions."
#230. To: nolu chan (#225)
Advisory opinion. Such may be rendered by a court at the request of the government ore an interested party indicating how the court would rule on a matter should adversary litigation develop
#239. To: Roscoe (#230)
And in case it still did not penetrate your extraordinarily thick skull, there is the following:
Advisory Opinions
Perhaps the earliest such limitation was the refusal of the Supreme Court to issue "advisory opinions" to the other branches in advance of a case or controversy. In 1792, the very first Congress enacted a statutory scheme by which U.S. circuit court judges—who were then also Supreme Court Justices—were to consider the pension claims of Revolutionary War veterans and inform the secretary of war of the nature of the claimant's disability and the amount to be paid. The secretary had the discretion to follow the court's recommendation or not. All five Supreme Court Justices— Wilson, Blair, Cushing, Iredell and Chief Justice Jay—sitting as circuit court judges in New York, Pennsylvania, and North Carolina expressed their opinions that this scheme was unconstitutional. Here is how the Pennsylvania panel explained its objections:
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.
advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.
#246. To: nolu chan (#239)
(Edited)
Thus, the implicit policies embodied in Article III
Replies to Comment # 246.
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