U.S. Constitution
See other U.S. Constitution Articles
Title: GOP rep: 'No president is allowed to burn the First Amendment’
Source:
The Hill
URL Source: http://thehill.com/homenews/house/3 ... ed-to-burn-the-first-amendment
Published: Nov 30, 2016
Author: Mark Hensch
Post Date: 2016-11-30 19:10:50 by Hondo68
Keywords: Impeach Trump, scofflaw, hates BOR
Views: 110865
Comments: 265
Rep. Justin Amash (R-Mich.) on Tuesday defended the constitutionality of flag burning, saying President-elect Donald Trump would violate freedom of speech if he cracked down on it. "Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment," Amash tweeted. Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment. https://t.co/nVkq6WcbHV— Justin Amash (@justinamash) November 29, 2016 Trump earlier Tuesday floated severe penalties for flag burning, mentioning loss of citizenship or a year in jail. “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” he tweeted. Trump did not specify what inspired his 7 a.m. tweet about flag burning, which is considered protected speech under U.S. law. The Supreme Court ruled in Texas v. Johnson in 1989 that burning the American flag is allowed under the First Amendment. A spokesman for Trump on Tuesday said he agrees with Trump that the controversial act should be outlawed. “I think most Americans would agree with me that flag burning should be illegal. It’s completely despicable,” Jason Miller told CNN’s “New Day." Rep. Sean Duffy (R-Wis.) told CNN he disagrees with Trump, though. “I don’t think we want to make this a legal issue. So I disagree with Mr. Trump on that, and the court is probably right," Duffy said. “I think the court is probably right that we want to protect those people who want to protest and their right to actually demonstrate with disgracing our flag, even though so many of us who love our country and love our flag object to it.” House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech. “We have a First Amendment right. We’ll protect our First Amendment. That’s what the court has upheld,” he said on MSNBC’s “Morning Joe” on Tuesday. Poster Comment:
House Majority Leader Kevin McCarthy (R-Calif.) also split with Trump and defended flag burning as free speech
Already there are the beginnings of an impeach Trump movement in the HOR, and he hasn't even taken office yet. (1 image)
Post Comment Private Reply Ignore Thread
Top • Page Up • Full Thread • Page Down • Bottom/Latest
Comments (1-167) not displayed.
.
.
.
#168. To: Roscoe (#165)
What you desire the Congress is, of course, blatantly unconstitutional. Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73: Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court. Congress was not granted the authority to limit the original jurisdiction of any federal court, and that is where the trial is held, the court of first instance. Congress cannot limit the original jurisdiction of any court, and cannot limit the appellate jurisdiction of ant U.S. Circuit Court of Appeals. Article 3, Section 2: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Do try reading the constitutional provision with the knowledge that Appellate jurisdiction does not arise until Original jurisdiction has been exercised at the trial court level. Appellate jurisdiction seems to arise in the U.S. Supreme Court after it has been excercised first in a U.S. Circuit Court of Appeals. 1 Stat. 80 (24 Sept. 1789) To see the jurisdiction held by the U.S. District Courts, see 28 U.S.C. Chapter 85 (§§ 1330 - 1369).
Marbury is not the first decision of judicial review in the U.S. Supreme Court. That would be Hylton v. United States, 3 U.S. 71 (1796). Hylton reviewed the constitutionality of a tax law and upheld it. Calder v. Bull was also a case of judicial review. What distinguishes Marbury is that it was the first case of judicial review resulting in a law being overturned, not that it is the source of judicial review. Judicial review is not arguable as unconstitutional in court unless you desire to invite Rule 11 sanctions. https://supreme.justia.com/cases/federal/us/3/171/ Hylton v. United States 3 U.S. (3 Dall.) 171 Syllabus The act of Congress of 6 June 1794, laying "a tax on carriages for the conveyance of persons, kept for the use of the owner," is a constitutional law, and is within the authority granted to Congress by the eighth section of the first article of the Constitution. https://supreme.justia.com/cases/federal/us/3/386/ AUGUST TERM, 1798. CALDER and wife v. BULL and wife. Constitutional law.—Eminent domain.—Ex post facto laws. The judiciary is a co-ordinate branch of the government, and may declare a statute to be void, as repugnant to the constitution.
Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The court opines on cases or controversies before the court, pursuant to U.S. Const. Art 3, Sec. 2, Cl. 1, Case or Controversy provision.
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. " Congress may limit both the appellate and original jurisdiction of the inferior courts it establishes. For example, the United States Bankruptcy Court. Poor Shit-For-Brains.
"Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257. Poor Shit-For-Brains.
False interpretation of the Courts interpretive powers. Congress lacks authority to make law repugnant to the Constitution. The SCOTUS lacks authority to issue opinions repugnant to the the Constitution. All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution.
This, I like. Have the courts review legislation prior to a vote. I'm guessing they wouldn't be interested in 99.9% of the legislation that goes on, so this isn't that much of a burden. This is an issue that's always bothered me anyways. Congress takes forever to pass legislation and, when they do, it's struck down by the courts. What a waste of time. This way the judicial branch has their say but they're not the final word. Moreso, the court's constitutional findings could be used as part of the debate in Congress. This places the onus on representatives elected by the people, not unelected and unaccountable justices. (I'd also like to see Congress directly involved in passing regulations, rather than avoiding responsibility by allowing agencies to issue them. But that's a topic for another thread.) (I'd also like Congress to issue a "Declaration of Conflict" whenever we send troops into battle anywhere. Time for them to go on record before money is spent and people start dying. Again, another topic for another thread.) OK. I'm done.
If the review is nonbinding the court could say whatever they want. If they try this "emanation from a penumbra" bullshit, Congress could simply laugh at them Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.
Congress sure thought they could. The House even passed legislation removing judicial review on the definition of marriage. Had it gotten out of committee and passed the Senate you'd be eating your words. "Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL." It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue. We would never know.
Yep. Or even say nothing at all. Congress could remind them of their silence if they later pray for permission to consider a constitutional challenge to that particular federal statute.
Yep. Congress, in its act of 27th March, 1868, removed the Supreme Court's appellate jurisdiction to hear habeas corpus appeals. In response, the Court, in Ex parte McCardle, 74 U.S. 506, (1868), went to its collective knee and kissed the legislature's, er, ring.
Weren't Trumps comments just an example of how strongly he feels about flag burning. It reflects what many would say and feel. That is why we have divided government, so crazy ideas are not implemented. People are just afraid now because of the Imperial Presidency we have had on and off since Lincoln(on), Coolidge(off), FDR(on), Johnson/Nixon/Reagan/Bushes/Clinton/Obama(all on)
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Good point. Helping to clarify potential legal considerations in the legislative history and aiding statutory interpretation in future adjudications. That could even reach to more pedestrian concerns such a statutory ambiguity.
The USSC, as it usually is or was, ruled wrongly. Free speech should not be a reason for a fight or "breach of the peace" to ensue. When it does, it shouldn't be a reason for another law to be written. Let juries sort these things out with fully informed people. In this country we do not need a cop, jailer, court stenographer, doctor, lawyer, fancy building, appointed attys, file clerk etc, to produce Justice. What we really have here is too much time on peoples hands, and too much government in the form of the Just Us system. We can have justice without having laws against words or "offending words". If you own a flag and you burn it, what skin is it off of my nose? If it is a publicly displayed flag, or one that does not belong to the person destroying it, now we have theft and destruction involved. Those are actual crimes.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
If they own the flag, they can do with it as they wish I couldn't agree more. Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
If you burn my flag, it is a crime. If I burn my flag it is free speech. The right way to rule on the case is so simple.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Yes, original intent is the only way to go. All precedents should be burned, and each case decided with only logical understanding of the intent of the law. This comment is not sarcasm. It has always struck me that the USSC and the US Justice system is very much like that of the Jewish religion. They follow more the commentary on the Word, than the Word itself. Centuries of thought by what they say is the best and brightest, is thought to be equal to or above the actual words handed down to Moses. Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
I understand. As I'm sure you understand that to most people the American flag is a symbol of our country and it stands for something. And I'm sure you understand how some people (not you, obviously) could become upset when someone burns the flag at a protest. And that action could lead to violence. Now. Why would you want to protect this behavior yet ban "hate speech", "fighting words" and other behavior that acts as an incitement to imminent violence?
Hate speech is just words and nothing is burned. Yet there are laws against it.
Not a good record. Trump's comment about jail time is bad enough, but the idea of "loss of citizenship" is too much. Most of us were born in the USA of citizen parents. What would one be if they lost US citizenship, United Nations citizens? Where would they deport someone who's not a citizen of any country? Some dopey kid who burned a US flag, would likely become radicalized. If you just laughed at them, they'd likely outgrow it in a few years and become a great American. The "cure" is worse than the disease. Well, original "something". Scalia was big on original meaning. Original intent would be what the writer had in mind when he wrote the words. Original meaning would be what an average reader thinks when he reads those words in that historical period. Either one would be better than the method the courts use today ... which is "what they think".
Well, they obviously hate the United States. So they must believe there are other countries they'd prefer. Ask them to pick one and we'll work something out with that country.
Yeah. What you said. That too. (I think "The Ambiguous Statutes" would be a great name for a rock band.)
No, most likely they just hate the corrupt unconstitutional government. You seem to love Obama and worship his tyrannical regime, but you're in the minority. Love the USA, but hate the rotten D&R government. The American flag represents the country, not the current government. If you "Love the USA, but hate the rotten D&R government", then find something else to burn.
Right. By burning the symbol of your country.
Protecting our country includes the symbol such as flag burning to make an explicit perspective that there is whole lot of wrongs by the US Government that are not addressed by politicians.
Liberal clap-trap gobbledygook. You don't like the government? Burn something else.
With a government closing free expression, that you agree with, no wonder the place has turned into a tyrannical do-nothing failure for all the world to see.
Do you mean banning "hate speech"?
False interpretation of the Courts interpretive powers. Congress lacks authority to make law repugnant to the Constitution. The SCOTUS lacks authority to issue opinions repugnant to the the Constitution. All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution. I've made that argument many times here, to our local chumps, --- but they can't seem to understand. Maybe it's because they don't really honor our constitutions original intent.
Explain "hate speech" and the authority of Congress to close the obvious "loop holes."
I have never supported hate speech laws. I see no reason to ban any speech, or action unless it can be proven to damage another human being. With that said, there also should not be any law protecting the State or Federal government as in the govt taking the place of the harmed individual, like The State of Vermont vs a shoplifter, or other common criminal. That is nonsense on its face, and reeks of a Monarchy.
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Exactly
Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
Yes, original intent is the only thing that matters in laws and board games. People are mad, and we voted for Trump hoping for a new chance at restoration. Now most of his voters are filling up the Obama worshipping lane in the Church of DC. Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.
No you lying sack of shit. This is why you are banned. You have no class. You lie and make up stuff when you are challenged on your hypocrisy.
[Roscoe #165] Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally. Damn, you are truly a fucking idiot, and apparently proud of it. To support your idiotic argument that Congress may limit the appellate and original jurisdiction of the inferior courts it establishes, you cite the bankruptcy courts in a discussion of your pathetic and braindead argument that Congress can take away the original and appellate jurisdiction of the U.S. Supreme Court, the U.S. Circuit Courts of Appeal, and the U.S. District Courts. You merely demonstrate how dumb, stupid and ignorant you are. The U.S. Supreme Court, the Circuit Courts of Appeal, and the U.S. District Courts are Article III courts. Their jurisdiction is derived from Article III of the Constitution. The jurisdiction of Article III courts is assigned by the Constitution and not derived from Congress. Congress has a grant of authority to limit the appellate jurisdiction of the U.S. Supreme Court. It has no other grant of authority to limit the original or appellate jurisdiction of any Article III court. And Bankruptcy Courts are Article I courts. Article I is the section on the powers of the EXECUTIVE branch. You do not know what the hell you are talking about.
[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)).
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, [...]
Comments (208 - 265) not displayed.
Top • Page Up • Full Thread • Page Down • Bottom/Latest Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally.
The question whether a federal court has jurisdiction to review the constitutionality of a congressional withdrawal of jurisdiction is distinct from the question of what limitations the Constitution in fact imposes upon such legislation. Plainly, the usual limitations of the Bill of Rights and of Article I, § 9, apply: the paradigmatic example of an external constitutional limitation would be the undisputed prohibitions imposed by the Due Process and Free Speech Clauses on legislation that would, say, restrict access to the federal courts on the basis of a litigant's race, religion, gender or political affiliation or viewpoint. Moreover, laws designed to hinder the exercise of constitutional rights are, to that degree, unconstitutional. Likewise, even those jurisdictional statutes which unintentionally burden the exercise of such rights warrant strict scrutiny;24 thus, if busing were demonstrably the only remedy to effectuate one's right not to attend a segregated school, federal legislation limiting judicial power to order busing as a remedy would appear highly suspect. Even the withdrawal of a gratuity—whether in the form of a welfare payment that a state is not independently required to make25 or in the form of an extension of court jurisdiction that Congress is not independently compelled to provide—may be forbidden if it penalizes a separately secured right.26 Congress, in short, is not entirely at liberty to create free-fire zones around currently unpopular constitutional rights.27
Section 2.
SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.
#169. To: Roscoe (#165)
Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary.
Hylton v. United States, 3 U.S. 3 Dall. 171 (1796)
Calder v. Bull, 3 Dall. 386 (1798)
#170. To: Roscoe (#165)
Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.
#171. To: nolu chan (#168)
Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court.
#172. To: nolu chan (#170)
Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers.
#173. To: Yall (#161)
"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution."
#174. To: Roscoe (#165)
"Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities."
#175. To: Roscoe (#165)
"Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege."
#176. To: nolu chan (#166)
"You cannot escape the law with your juvenile tricks."
#177. To: misterwhite (#175)
If the review is nonbinding the court could say whatever they want.
Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.
Exactly.
#178. To: misterwhite (#176)
It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue.
#179. To: hondo68 (#0)
#180. To: misterwhite (#174)
Moreso, the court's constitutional findings could be used as part of the debate in Congress.
#181. To: misterwhite (#1)
#182. To: hondo68 (#5)
And you don't respect private property either, so you're a communist as well!
#183. To: Deckard (#14)
#184. To: Roscoe (#18)
#185. To: jeremiad (#181)
"If you own a flag and you burn it, what skin is it off of my nose?"
#186. To: jeremiad (#183)
"If you burn my flag, it is a crime. If I burn my flag it is free speech."
#187. To: jeremiad (#179)
the Imperial Presidency we have had on and off since Lincoln(on), Coolidge(off), FDR(on), Johnson/Nixon/Reagan/Bushes/Clinton/Obama(all on)
The "anti-establishment" establishment
#188. To: Roscoe (#18)
"Time to return to original intent."
#189. To: hondo68 (#187)
"Where would they deport someone who's not a citizen of any country?"
#190. To: Roscoe (#180)
(Edited)
"That could even reach to more pedestrian concerns such a statutory ambiguity."
#191. To: misterwhite, Obamas Canaries, Tyranny Worship, *The Two Parties ARE the Same* (#189)
(Edited)
they obviously hate the United States.
The "anti-establishment" establishment
#192. To: hondo68 (#191)
"No, most likely they just hate the corrupt unconstitutional government."
#193. To: misterwhite, tpaine, Thomas Paine (#192)
The "anti-establishment" establishment
#194. To: hondo68 (#193)
#195. To: misterwhite (#194)
By burning the symbol of your country.
#196. To: buckeroo (#195)
"Protecting our country includes the symbol such as flag burning to make an explicit perspective that there is whole lot of wrongs by the US Government that are not addressed by politicians."
#197. To: misterwhite (#196)
clap-trap gobbledygook
#198. To: buckeroo (#197)
"With a government closing free expression"
#199. To: jeremiad, yall (#184)
"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.". Nolu chump
Yes, original intent is the only way to go. All precedents should be burned, and each case decided with only logical understanding of the intent of the law.
#200. To: misterwhite (#198)
#201. To: misterwhite (#186)
#202. To: hondo68 (#187)
#203. To: tpaine (#199)
#204. To: sneakypete (#111)
#205. To: Roscoe (#171)
[Roscoe #171] Congress may limit both the appellate and original jurisdiction of the inferior courts it establishes. For example, the United States Bankruptcy Court.
#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."
#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.
.
.
.
[Home] [Headlines] [Latest Articles] [Latest Comments] [Post] [Mail] [Sign-in] [Setup] [Help] [Register]