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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: 110755
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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#194. To: hondo68 (#193)
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, [...]
False interpretation of the Courts interpretive powers. Congress lacks authority to make law repugnant to the Constitution. Correct interpretation of the powers of Congress. The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same-sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions. Deal with reality. Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others. You may not like the American system of law and desire to replace it with your own personal bullshit. Take your bullshit to tpaine's Court of the Imagination.
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. Congress thought it could? It didn't get out of committee. Had the dog not stopped to take a shit, it would have caught the rabbit. Had the Congress passed an unconstitutional law, the Judicial branch would have struck it down. It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue. We would never know. Nonsense. After the Court of Appeals finds your unconstitutional law UNCONSTITUTIONAL, you would have no appeal. Remove the appellate jurisdiction of SCOTUS and the decision of the Court of Appeals is final. The original jurisdiction of the District Courts would not disappear, and neither would the appellate jurisdiction of the Circuit Courts. The existing decisions of the U.S. Supreme Court would not be changed. They would remain binding precedent upon all lower courts. Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73:
[Roscoe] Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege. [Shit-For-Brains] congress could not require federal courts to provide the executive branch with advisory opinions An invitation is not a requirement, Shit-For-Brains. The Court would be free to refuse. Then Congress would be free to deny appellate jurisdiction, per its explicit constitutional power. [Roscoe] "Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257. [Shit-For-Brains] Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The Constititution wasn't amended between the Hayburn advisory opinions provided by multiple judges and Justices, and Jay's refusal. Jay's refusal did not amend the Constitution either, Shit-For- Brains. [Shit-For-Brains] "'[N]o decision of any court of the United States can, under any circumstances, ... be liable to a revision, or even suspension, by the [l]egislature itself, in whom no judicial power of any kind appears to be vested' " Non sequitur, Shit-For-Brains. The invitation is prior to decision. Prior even to appellate review.
The Circuit Courts of Appeal and the U.S. District Courts aren't even mentioned in Article III. They, like the Bankruptcy Courts, are creations of Congressional legislation, which may be amended or rescinded at will, Shit-For-Brains. Here's what Article III actually says: 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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. Half liar, half imbecile.
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.
At least those precedents dependent on "judicial review." Congress has the explicit Constitutional power to reign those in. Outside of the Court playing super-legislature, precedent has value to the extent that it makes the law predictable.
Like his EBT card?
Then that would represent a perfect example of how the courts are out of control. Under Article III, Section 2 of the U.S. Constitution, Congress has the power to eliminate judicial review. How can you possibly say it's unconstitutional?
Ah! So your conclusion is that it didn't get out of committee because it was unconstitutional?
Well, we have them. And since we do, I don't see how flag burning is any different. But, think outside the box. Isn't it possible that Trump brought this flag burning issue up precisely because of hate speech laws? To get people to see that both are the same thing? And that the result will be that people will insist on free speech, thereby forcing the elimination of our hate speech laws.
Whatever it is, Congress banned it. And my position is that flag burning is hate speech and should also be banned. Or, conversely, both hate speech and flag burning should be allowed. Your choice.
"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution." --- SFB's False interpretation of the Courts interpretive powers. 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. Congress lacks authority to make law repugnant to the Constitution. You bet, nice to see a shit for brains agreeing for a change. True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution. Deal with reality. The Courts opinion remains an opinion, not a law. You may not like the American system of law and desire to replace it with your own personal bullshit. Take your bullshit to nolu chumps Court of the Imagination.
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. Our constitution was designed to be predictable, --- laws made in its name are not necessarily so. -- Better liberty than predictability.
You so nice, mristerwite-san.
Cleaning up your messes is a challenge. You have the Midas touch. Everything you touch turns to shit. McCardle as precedent? Really?? What a fucking nitwit. You seriously do not what you are talking about. American Constitutional Law, 5 Ed., 2012, Otis H. Stephens, jr. and Jon M. Scheb II, pp. 204-05 [...] In Hamdan v. Rumsfeld (2006), a Yemeni national detained at Guantanamo Bay brought suit to challenge the legality and constitutionality of the military tribunal before which he was to be tried. [...] On June 29, 2006, the final day of the Term, the Supreme Court issued its historic ruling in Hamdan v. Rumsfeld. Dividing 5-to-3 (Chief Justice Roberts not participating because he had previously voted in the case at the court of appeals level) the Court held that the Bush Administration's plan to try Guantanamo Bay detainees before military commissions was unauthorized by statute and violated international law. In 2005 Congress had passed the Detainee Treatment Act, in effect barring federal jurisdiction to review the cases of Guantanamo Bay detainees. The majority, in a lengthy opinion by Justice Stevens, held that this Act did not bar federal court review of pending cases, including that of Hamdan. Nor were the military tribunals sanctioned by the Congressional Resolution of September 14, 2001, Authorizing the Use of Military Force in the aftermath of the 9/11 attacks. The overarching rationale of the Court's decision is summed up by Justice Stevens's assertion that: "Even assuming that Hamdan is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment." The majority indicated that Congress could, through appropriate legislation, provide for the use of military tribunals to try Guantanamo Bay detainees. In a concurring opinion Justice Breyer observed that "Congress [had] not issued the Executive a blank check." He added that "nothing prevents the President from returning to Congress to seek the authority he believes necessary." Early indications were that the Bush Administration would work with Congress in formulating legislation regarding military tribunals that would withstand judicial scrutiny. Justices Scalia, Thomas, and Alito filed dissenting opinions in this important case. Justice Scalia spoke for all three dissenters in insisting that as of December 30, 2005, the date on which the Detainee Treatment Act took effect, "no court had jurisdiction to hear or consider" Hamdan's petition for habeas corpus. He found the Court's conclusion to the contrary "patently erroneous." In essence, Scalia would have followed the long-abandoned McCardle precedent by recognizing the power of Congress to withdraw the Supreme Court's jurisdiction in a pending case. Responding to the Hamdan decision, Congress passed the Military Commissions Act, signed by the President on October 17, 2006. This legislation authorized "trial by military commission for violations of the law of war. ..." Reviewing a challenge to this Act, the Supreme Court, on June 12, 2008, held, among other things, that a provision denying habeas corpus jurisdiction to federal courts amounted to an unconstitutional suspension of the writ, in violation of Article I, section 9 of the Constitution. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) Boumediene v. Bush, 553 U.S. 723 (2008)
You are the one who was too dumb, stupid, and ignorant not to realize that bankruptcy courts are Article I courts and not Article III courts. 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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. You are a fucking idiot. Article III does not begin and end with your pull quote. Section 1. 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. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. 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. Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. Article III, Section I provides that, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office." Bankruptcy court judges are appointed to 14-year terms. They are employees whose compensation can be lowered during their time in office. They can be removed by majority vote of a council. They are not appointed by the President. https://en.wikipedia.org/wiki/United_States_bankruptcy_court 28 U.S.C. § 152 - - - - - - - - - - Whenever a majority of the judges of any court of appeals cannot agree upon the appointment of a bankruptcy judge, the chief judge of such court shall make such appointment. - - - - - - - - - - The judges of the district courts for the territories shall serve as the bankruptcy judges for such courts. The United States court of appeals for the circuit within which such a territorial district court is located may appoint bankruptcy judges under this chapter for such district if authorized to do so by the Congress of the United States under this section. - - - - - - - - - - A bankruptcy judge may be removed during the term for which such bankruptcy judge is appointed, only for incompetence, misconduct, neglect of duty, or physical or mental disability and only by the judicial council of the circuit in which the judge's official duty station is located. Removal may not occur unless a majority of all of the judges of such council concur in the order of removal. Before any order of removal may be entered, a full specification of charges shall be furnished to such bankruptcy judge who shall be accorded an opportunity to be heard on such charges. - - - - - - - - - - SALARY INCREASES 1988—Salaries of bankruptcy judges continued at $72,500 per annum by Ex. Ord. No. 12622, Dec. 31, 1987, 53 F.R. 222, formerly set out as a note under section 5332 of Title 5, Government Organization and Employees. And you continue to maintain that these are Article III judges because you are the shithead who is too dumb, stupid and ignorant to know any better. Mostly liar, all imbecile.
And you are still full of shit, and spinning as usual. You may call me names, but I can document for the world to see that you have no idea what the hell you are talking about. At the Constitutional Convention, on August 20, 1787 James Madison offered the following provision for consideration: "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341. The devious Progressive-Statist Cabal of Framers, foreseeing the events which have only now arisen, corruptly failed to adopt Madison's proposal, initiating a more than two-century old conspiracy. /s The federal courts have refused any and all "invitations" to issue any advisory opinion, any and all of your bullshit to the contrary notwithstanding. Issuance of advisory opinions is prohibited by the federal courts. As you were evidently too dumb, stupid and ignorant to understand the John Jay letter on first reading, read it again. Perhaps it may penetrate. John Jay responded that the U.S. Supreme Court that the Court could not issue an advisory opinion. Philadelphia August 8, 1793 Sir: We have considered the previous question stated in a letter written by your direction to us by the Secretary of State on [July 18, on the topic of] the lines of separation drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments. We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States. We have the honor to be, with perfect respect, sir, your most obedient and humble servants. - - - - - - - - - - The President only has the power to call on executive departments for advisory opinions. If you were not so dumb, stupid and ignorant, you would realize that the federal courts cannot issue advisory opinions. They have not issued advisory opinions, except in your vivid imagination. An advisory opinion issued by the Supreme Court justices would make them all recuse themselves in a subsequent related case. As the federal judiciary has always refused to issue any advisory opinion, your bullshit is essentially meaningless. To the extent that you propose that Congress has any authority to limit the appeallate jurisdiction of the U.S. Supreme Court to effect a limitation upon any constitutional right, as coment on this thread supposes, you are just full of shit. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Boumediene v. Bush, 553 U.S. 723 (2008), and my #222. For example, from Hamdan, "the Supreme Court, on June 12, 2008, held, among other things, that a provision denying habeas corpus jurisdiction to federal courts amounted to an unconstitutional suspension of the writ, in violation of Article I, section 9 of the Constitution." Plaut et al v Spendthrift Farm, Inc, et al, 514 US 211 (1994) Plaut Syllabus at 211, Held: Plaut at 219: Plaut at 221-222: 222 eralist No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson's Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that "the Legislature ... in many instances decided rights which should have been left to judiciary controversy." Id., at 336 (emphasis deleted).4 If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, § 1, in The Federalist No. 81: The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to "prescrib[e] the rules by which the duties and rights of every citizen are to be regulated," but the power of "[t]he interpretation of the laws" would be "the proper and peculiar province of the courts." Id., No. 78, at 523, 525. Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73:
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)]
Ah! So your conclusion is that it didn't get out of committee because it was unconstitutional? No, your claim of Congress thinking they could legally enact your unconstitutional legislation cannot be shown by an act that did not get out of committee. My conclusion is your supposed evidence does not support your bogus conclusion.
All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution. Clearly, you are very confused about legal things. SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions. True,Congress has no such authority, nor does the Court have any except to issue it's opinion on constitutionality. Court opinions do not change the Constitution. The SCOTUS opinion interpreting the Constitution is binding. SCOTUS says what the law is. They may change a prior interpretation and separate but equal goes from constitutional to unconstitutional. SCOTUS says abortion is a constitutional right and it is treated as a constitutional right until they change their interpretation or the Constitution is amended. The Courts opinion remains an opinion, not a law. SCOTUS decides cases. It's opinions are its decisions. It is empowered to interpret the Constitution, and it's interpretation is enforceable. It is the function of SCOTUS not to mae the law, but to interpret it and say what the law is. You act to prevent legal same-sex marriage or legal abortion, as defined by the court, and you may find your ass jammed in a cell. All can freely ignore your bullshit without legal consequence. The opinion of SCOTUS is binding. Your wacko, dingbat opinions are not.
What a pathetic cut and paste data dump, with not one factoid on point. You got your ass handed to you, Shit-For-Brains
No "requirement" was called for. I already spanked you once on that feeble and dishonest strawman, Shit-For-Brains. I guess ya like being humiliated.
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.
That's exactly what the Court did in Obergefell v. Hodges, Shit-For-Brains. And by the way, opinions are NOT decisions. Decisions may be rendered without any written opinions. Your ignorance is like a bottomless septic tank. However, opinions frequently contain advisory opinions in the form of dicta. You remember, that's a previously made point you fled. Rather cowardly.
Logic ain't his long suit. You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message. I suspect advisory opinions from the Court and its members would be quickly forthcoming.
Yes, but after he strips their jurisdiction on some high-profile issue. Say, "Under God" in the Pledge of Allegiance. That might loosen their tongues a little on future cases.
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#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.
#208. To: tpaine (#173)
Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.
#209. To: misterwhite (#176)
"You cannot escape the law with your juvenile tricks."
Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL.
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
#210. To: nolu chan (#206)
(Edited)
"This construction of the federal judicial power was not inevitable. In addition to the numerous advisory opinions given by the early Justices, English judges had a longstanding practice of issuing advisory opinions upon the monarch’s request. And federal judges and Justices have continued to give opinions informally, including through extrajudicial publications and interviews, dicta in judicial opinions, and ex parte advice to political actors... In fact, it has been suggested that the Jay Court was motivated by political rather than doctrinal factors in refusing to address Washington’s queries: the Justices were hoping that Congress would absolve them of their burden-some circuit-riding duties and were therefore unwilling to take sides in the neutrality controversy for fear of alienating potential supporters in the legislature. Jay and his brethren were seasoned political actors, and they were not the type to squander political capital unnecessarily, so they concocted a doctrinal excuse to avoid giving a direct answer to Washington." Harvard Law Review: Volume 124, Number 8 - June 2011
#211. To: nolu chan (#205)
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.
#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,
#213. To: jeremiad (#184)
All precedents should be burned, and each case decided with only logical understanding of the intent of the law.
#214. To: misterwhite (#196)
You don't like the government? Burn something else.
#215. To: nolu chan (#209)
"After the Court of Appeals finds your unconstitutional law UNCONSTITUTIONAL, you would have no appeal."
#216. To: nolu chan (#209)
"Congress thought it could? It didn't get out of committee."
#217. To: jeremiad (#201)
"I have never supported hate speech laws."
#218. To: buckeroo (#200)
"Explain "hate speech" and the authority of Congress to close the obvious "loop holes."
#219. To: nolu chump, aka shit for brains, yall (#208)
Correct interpretation of the powers of Congress.I
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.
Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.
#220. To: Jerimiad, all you chumps (#213)
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.
Roschump -- At least those precedents dependent on "judicial review." Congress has the explicit Constitutional power to reign those in. --- Outside of the Court playing super-legislature, precedent has value to the extent that it makes the law predictable.
#221. To: misterwhite (#218)
Or, conversely, both hate speech and flag burning should be allowed. Your choice.
#222. To: Roscoe (#178)
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.
Detention and Trial of Foreign Nationals Apprehended in the War on Terrorism
#223. To: Roscoe (#211)
Half liar, half imbecile.
The Circuit Courts of Appeal and the U.S. District Courts aren't even mentioned in Article III. They, like the Bankruptcy Courts, are creations of Congressional legislation, which may be amended or rescinded at will, Shit-For-Brains. Here's what Article III actually says:
Article III
United States bankruptcy courts are courts created under Article I of the United States Constitution.
Each bankruptcy judge shall be appointed for a term of fourteen years, subject to the provisions of subsection (e).
#224. To: Roscoe (#210)
An invitation is not a requirement, Shit-For-Brains. The Court would be free to refuse.
LETTER FROM CHIEF JUSTICE JOHN JAY AND THE ASSOCIATE JUSTICES OF THE U.S. SUPREME COURT TO PRESIDENT WASHINGTON
the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
Then Congress would be free to deny appellate jurisdiction, per its explicit constitutional power.
(b) Article III establishes a "judicial department" with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177. The Framers crafted this charter with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to decide them conclusively, subject to review only by superior courts in the Article III hierarchy. Thus, the Constitution forbids the Legislature to interfere with courts' final judgments. Pp. 219-225.
The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. G. Wood, The Creation of the American Republic 1776-1787, pp. 154-155 (1969). Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. M. Clarke, Parliamentary Privilege in the American Colonies 49-51 (1943). See, e. g., Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208 (1902) (collecting documents from 1708-1709); 5 Laws of New Hampshire, Including Public and Private Acts, Resolves, Votes, Etc., 1784-1792 (Metcalf ed. 1916). Thus, as described in our discussion of Hayburn's Case, supra, at 218, such legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments.
The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that "the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison's Federalist No. 48, the famous description of the process by which "[t]he legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex," referred to the report of the Pennsylvania Council of Censors to show that in that State "cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination." The Fed-
"It is not true ... that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act .... A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, p. 545 (J. Cooke ed. 1961).
The question whether a federal court has jurisdiction to review the constitutionality of a congressional withdrawal of jurisdiction is distinct from the question of what limitations the Constitution in fact imposes upon such legislation. Plainly, the usual limitations of the Bill of Rights and of Article I, § 9, apply: the paradigmatic example of an external constitutional limitation would be the undisputed prohibitions imposed by the Due Process and Free Speech Clauses on legislation that would, say, restrict access to the federal courts on the basis of a litigant's race, religion, gender or political affiliation or viewpoint. Moreover, laws designed to hinder the exercise of constitutional rights are, to that degree, unconstitutional. Likewise, even those jurisdictional statutes which unintentionally burden the exercise of such rights warrant strict scrutiny;24 thus, if busing were demonstrably the only remedy to effectuate one's right not to attend a segregated school, federal legislation limiting judicial power to order busing as a remedy would appear highly suspect. Even the withdrawal of a gratuity—whether in the form of a welfare payment that a state is not independently required to make25 or in the form of an extension of court jurisdiction that Congress is not independently compelled to provide—may be forbidden if it penalizes a separately secured right.26 Congress, in short, is not entirely at liberty to create free-fire zones around currently unpopular constitutional rights.27
#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."
#226. To: misterwhite (#216)
"Congress thought it could? It didn't get out of committee."
#227. To: tpaine (#219)
The SCOTUS lacks authority to issue opinions repugnant to the the Constitution.
The Court decided in Obergefell that laws prohibiting same-sex marriage are unconstitutional. Congress has no lawful authority to pass a law prohibiting same- sex marriage. The Court in Roe v. Wade decided that laws prohibiting all abortions were unconstitutional. Congress has no lawful authority to pass a law prohibiting all abortions.
Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.
#228. To: nolu chan (#223)
Bankruptcy court judges are appointed to 14-year terms.
#229. To: nolu chan (#224)
"Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341.
#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
#231. To: nolu chan (#227)
SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.
#232. To: misterwhite (#216)
So your conclusion is that it didn't get out of committee because it was unconstitutional?
#233. To: Roscoe (#232)
"You know, as Congress debated the legislation, President Donald Trump could innocently ask the Court (and its members individually) if they had any concerns with the proposed lawmaking. Sort of a speak now or forever hold your peace message."
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