Or, it can be argued that burning the flag is hate speech and is not protected.

Or that burning the flag is "likely to incite imminent lawless action".

Three reasons why burning the flag is not protected by the first amendment.

http://www.thegatewaypundit.com/2016/11/watch-communist-losers-burn-american-flags-outside-trump-tower-video/

I supposed that you'd try to deny this law abiding religious cult their civil rights using the same Progressive SJW tyrannical thug logic.

Triggered eh, snowflake?

He would own your ass if you did business with or against him.

Dims played chess while pubic hair played checkers. Now trump plays 3D chess and it's blowing everyone's mind!

Omg!!!

"Nobody should burn the American flag, but our Constitution secures our right to do so. "

You America-haters love altering the Constitution through judicial legislation and penumbral emanations.

America-hater

And you don't respect private property either, so you're a communist as well!

If they own the flag, they can do with it as they wish, you commie rat.

In Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court held that "insulting or 'fighting words,' -- those that by their very utterance inflict injury or tend to incite an immediate breach of the peace -- are not protected by the first amendment. Burning the flag is no different than fighting words.

Or, it can be argued that burning the flag is hate speech and is not protected.

Flag burning is a protected form of political expression.

https://supreme.justia.com/cases/federal/us/491/397/case.html

Texas v. Johnson, 491 U.S. 397 (1989)

U.S. Supreme Court

Texas v. Johnson, 491 U.S. 397 (1989)

Texas v. Johnson

No. 88-155

Argued March 21, 1989

Decided June 21, 1989

491 U.S. 397

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS

Syllabus

During the 1984 Republican National Convention, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.

Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 491 U. S. 402-420.

(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 491 U. S. 402-406.

(b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O'Brien, 391 U. S. 367, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited

Page 491 U. S. 398

on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. This Court's holding does not forbid a State to prevent "imminent lawless action" and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas' interest in preserving the flag as a symbol of nationhood and national unity is related to expression in this case and, thus, falls outside the O'Brien test. Pp. 491 U. S. 406-410.

(c) The latter interest does not justify Johnson's conviction. The restriction on Johnson's political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to "the most exacting scrutiny." Boos v. Barry, 485 U. S. 312. The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone. Pp. 491 U. S. 410-422.

755 S.W.2d 92, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 491 U. S. 420. REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 491 U. S. 421. STEVENS, J., filed a dissenting opinion, post, p. 491 U. S. 436.

Page 491 U. S. 399

JUSTICE BRENNAN delivered the opinion of the Court.

https://supreme.justia.com/cases/federal/us/496/310/case.html

United States v. Eichman, 496 U.S. 310 (1990)

Syllabus

After this Court held, in Texas v. Johnson, 491 U. S. 397, that a Texas statute criminalizing desecration of the United States flag in a way that the actor knew would seriously offend onlookers was unconstitutional as applied to an individual who had burned a flag during a political protest, Congress passed the Flag Protection Act of 1989. The Act criminalizes the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except conduct related to the disposal of a "worn or soiled" flag. Subsequently, appellees were prosecuted in the District Courts for violating the Act: some for knowingly burning several flags while protesting various aspects of the Government's policies and others, in a separate incident, for knowingly burning a flag while protesting the Act's passage. In each case, appellees moved to dismiss the charges on the ground that the Act violates the First Amendment. Both District Courts, following Johnson, supra, held the Act unconstitutional as applied, and dismissed the charges.

Held: Appellees' prosecution for burning a flag in violation of the Act is inconsistent with the First Amendment. The Government concedes, as it must, that appellees' flag-burning constituted expressive conduct, and this Court declines to reconsider its rejection in Johnson of the claim that flag-burning as a mode of expression does not enjoy the First Amendment's full protection. It is true that this Act, unlike the Texas law, contains no explicit content-based limitation on the scope of prohibited conduct. Nevertheless, it is clear that the Government's asserted interest in protecting the "physical integrity" of a privately owned flag in order to preserve the flag's status as a symbol of the Nation and certain national ideals is related to the suppression, and concerned with the content, of free expression. The mere destruction or disfigurement of a symbol's physical manifestation does not diminish or otherwise affect the symbol itself. The Government's interest is implicated only when a person's treatment of the flag communicates a message to others that is inconsistent with the identified ideals. The precise language of the Act's

Page 496 U. S. 311

prohibitions confirms Congress' interest in the communicative impact of flag destruction, since each of the specified terms -- with the possible exception of "burns" -- unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value, and since the explicit exemption for disposal of "worn or soiled" flags protects certain acts traditionally associated with patriotic respect for the flag. Thus, the Act suffers from the same fundamental flaw as the Texas law, and its restriction on expression cannot "be justified without reference to the content of the regulated speech,'" Boos v. Barry, 485 U. S. 312, 485 U. S. 320. It must therefore be subjected to "the most exacting scrutiny," id. at 485 U. S. 321, and, for the reasons stated in Johnson, supra, at 491 U. S. 413-415, the Government's interest cannot justify its infringement on First Amendment rights. This conclusion will not be reassessed in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag-burning, since any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment. While flag desecration -- like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures -- is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Pp. 496 U. S. 313-319.

No. 89-1433, 731 F.Supp. 1123 (DDC 1990); No. 89-1434, 731 F.Supp. 415, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 496 U. S. 319.

Page 496 U. S. 312

Justice BRENNAN delivered the opinion of the Court.

If they own the flag, they can do with it as they wish

If they own the loudspeaker, they can use it to incite an immediate breach of the peace, by your pathetic attempt at reasoning.

If they own the loudspeaker, they can use it

Your ignorance of the BOR knows no bounds!

A little further along in the 1st amendment is the right to petition the government for redress of grievances. We used to go to the White House to yell at LBJ in the '60's! These high rollers can afford a bullhorn. Good for them.

Alex Jones explains the 1st and liberty to your commie brethren....

Alex Jones explains the 1st and liberty to your commie brethren....

you should as hell strike me as some alex jones loon,

TRUMP WON and you can't get over it, you pretend that he didn't or that you morons will impeach him,but you silly people can't do anything but posture and whine like little girls

your tears of pain are salty but enjoyable, post some more of your stupid sh*t it just gets funnier.

you should as hell strike me as some alex jones loon,

Alex is a Trumpanzee so he's closer to you. Jones is a Trumptard because playing that game puts money in his pocket. Like Trump, he's good at playing the suckers.

We used to go to the White House to yell at LBJ in the '60's!

And did that incite an immediate breach of the peace?

Weakling.

Trumpanzee Trumptard Trump

It's going to be a terrible eight years for you, snowflake. Great for people who work for a living.

"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.

Amash is arguably the most pro-freedom loving politician in DC.

Wonder why none of the candidates for POTUS ever even mentioned cutting back on the police/surveillance state.

Instead we have a right wing version of Hillary as president.

it can be argued that burning the flag is hate speech and is not protected.

Or that burning the flag is "likely to incite imminent lawless action".

Three reasons why burning the flag is not protected by the first amendment.

Is Flag Burning Protected Speech?

Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations — the same statutes permitted other public fires — but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.

That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment.

The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as loveable or popular ideas need no protection.

Had they banned all public fires in given locations, for public safety sake,

In the case of burning the American flag in public, the danger to public safety did NOT lie in the possibility of accidentally burning someone.

Transparent and lame.

you should as hell strike me as some alex jones loon,

I guess Trump is one of those "Alex Jones loons" too.

Alex Jones: Trump called to say thanks for support, will appear on show soon

Three reasons why burning the flag is not protected by the first amendment.

And all 3 reasons are meaningless because the courts have consistently ruled that flag burning is a form of political free speech.

I personally wouldn't have it any other way. Seems to me we have the enemy identifying themselves. Seems like win/win to me.

courts have consistently ruled

5/4 1989

Time to return to original intent.

I see the people in that photo more as targets than allies,though.

Wonder why none of the candidates for POTUS ever even mentioned cutting back on the police/surveillance state.

Because the vast majority are leftists that rely on the police state to protect them.

There are no prominent powerful conservatives left in America politics.

Time to return to original intent.

Original Intent was FREE SPEECH in ALL it's many forms,and NO speech was to be freer than "Political Speech".

Be careful what you ask for,lest you get it.

Original Intent was FREE SPEECH in ALL it's many forms

“[N]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech...” - Judge Richard Posner

“[N]othing in the text of the Constitution, or in the eighteenth-century understanding of freedom of speech, supports the proposition that prohibiting the burning of the flag infringes free speech...” - Judge Richard Posner

Yeah,but what would Judge Judy say?

Judge Richard Posner

Interesting that you would quote someone like Posner as a source for your dementia.

Judge Richard Posner: ‘No value’ in studying the U.S. Constitution

“I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation (across the centuries — well, just a little more than two centuries, and of course less for many of the amendments),” he wrote. “Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

Richard Posner

Abortion

Posner has written several opinions sympathetic to abortion rights, including a decision that held that late term abortion was constitutionally protected in some circumstances.^[20]

In November 2015 Posner authored a decision in Planned Parenthood of Wisconsin, inc., et al. v. Brad D. Schimel striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They [Wisconsin] may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion.

Drugs

Posner opposes the US "War on Drugs" and called it "quixotic". In a 2003 CNBC interview he discussed the difficulty of enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at Elmhurst College in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana.

National Security

At the Cybercrime 2020: The Future of Online Crime and Investigations conference held at Georgetown University Law Center on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine.

... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

Posner also criticized mobile OS companies for enabling end-to-end encryption in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said

Same-sex marriage

In September 2014, Posner authored the opinions in the consolidated cases of Wolf v. Walker and Baskin v. Bogan challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that Indiana and Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling.[4]

During oral arguments, Wisconsin's Attorney General cited tradition as a reason for maintaining the ban, prompting Posner to note that: "It was tradition to not allow blacks and whites to marry – a tradition that got swept away." Posner claimed that the same-sex marriage bans were both "a tradition of hate" and "savage discrimination".[36] Posner wrote the opinion for the unanimous panel, suggesting the laws unconstitutional under the Equal Protection Clause. The Supreme Court then denied writ of certiorari and left Posner's ruling to stand.

Today, although generally viewed as to the right in academia, Posner's pragmatism, his qualified moral relativism and moral skepticism,[16] and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives.

As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time.

In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy.

Obama’s Favorite Law Professor (The apple doesn't fall far from the tree)

Eric Posner hates freedom of speech.

The University of Chicago law prof made this clear in an article for Slate in 2012 titled “The World Doesn’t Love the First Amendment.” “Americans,” Posner wrote, “need to learn that the rest of the world — and not just Muslims — see no sense in the First Amendment,” and realize that “they might have a point.”

Posner, son of Judge Richard Posner and a former classmate of President Barack Obama at Harvard Law School, likened the First Amendment to a “dear old uncle who enacted heroic deeds in his youth but on occasion says embarrassing things about taboo subjects in his decline.”

Now Posner has weighed in on freedom of the press. Turns out he’s against that, too.

In the case in question, New York Times reporter James Risen is being ordered by the federal government to name his source for a story about an attempt by the CIA to scuttle Iran’s nuclear weapons program.

This is part of the Obama administration’s alleged “war on whistleblowers.” Risen is being ordered to testify in the government’s case against former CIA hand James Sterling.

Posner, who must be one of Obama’s favorite law professors after he sided with the censors on Benghazi and argued the president could unilaterally lift the debt limit with few consequences, is very much rooting against the journalists.

The prof argues the press has “not earned our trust.” Why, “if the Supreme Court were to create a reporter’s privilege, it would encourage leaks that ought to be plugged.”

Official White House mouthpiece Jay Carney couldn’t have said it better.

There are no prominent powerful conservatives left in America politics.

jones.house.gov/

Walter B. Jones is still in the HOR, and retains his seat on the Armed Services Committee, in spite of Boehner removing him from others. At 73 years old, he still refuses to tow the party line. He's also a member of the Liberty Caucus.

Some people never learn. ;)

“Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century.”

Flag burning isn't particularly high tech. Even you could figure out how to do it.

I see you are afraid to own up to your apparent worship of a leftist like Posner.

Sucks to be you.

Historical facts are historical facts

The historical facts show Posner to be a a pro-abortion, pro-homo marriage loon, yet you parrot his statements as if they were Gospel.

To be fair, he did get it right on the marijuana question.

The historical facts show Posner to be a a pro-abortion, pro-homo marriage loon

And once again your flee the historical facts regarding the actual meaning and original intent of the First Amendment, gibbering angrily.

Work up whatever minuscule reserve of nerve you might have, and at least try.

Historical facts are historical facts.

Posner: "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

Hmmm...where have we heard that type of statement before?

Oh, I know..

And once again your flee the historical facts regarding the actual meaning and original intent of the First Amendment,

The issue has been settled, didn't you get the memo?

By all means, keep up the delusional belief that burning a flag is not protected by the First Amendment.

The issue has been settled, didn't you get the memo?

Quote the "memo."

You've fled in terror each time you've been challenged so far.

"The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not unconstitutional..." - Halter v. Nebraska, 205 U.S. 34 (1907)

our ken

And Donnie...

Given the sentiments expressed by the court that you highlighted, how is it that prohibiting hate speech is constitutional?

Political speech is protected. Hate speech is not necessarily political speech and can be made for the purpose of creating a disturbance.

If Donald Trump went somewhere and gave a political speech, and a bunch of rabble took umbrage and decided to riot, that does not make the speech of Donald Trump a crime. The rioters commit a criminal act.

"The statute of Nebraska preventing and punishing the desecration of the flag of the United States and prohibiting the sale of articles upon which there is a representation of the flag for advertising purposes is not unconstitutional..." - Halter v. Nebraska, 205 U.S. 34 (1907)

Halter was brought under the 14th Amendment regarding use of the flag in advertising, and not as a case of individual free speech. The court ruled, "we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer."

https://supreme.justia.com/cases/federal/us/205/34/case.html

U.S. Supreme Court

Halter v. Nebraska, 205 U.S. 34 (1907)

Halter v. Nebraska

No. 174

Submitted January 23, 1907

Decided March 4, 1907

[excerpts]

The act, among other things, makes it a misdemeanor, punishable by fine or imprisonment, or both, for anyone to sell, expose for sale, or have in possession for sale, any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States. It expressly excepted, however, from its operation any newspaper, periodical, book, etc., on which should be printed, painted, or placed a representation of the flag "disconnected from any advertisement." 1 Cobbey's Ann.Stat.Neb. 1903, c. 139.

The plaintiffs in error were proceeded against by criminal information upon the charge of having, in violation of the statute, unlawfully exposed to public view, sold, exposed for sale, and had in their possession for sale a bottle of beer upon which, for purposes of advertisement, was printed and painted a representation of the flag of the United States.

Page 205 U. S. 39

The defendants pleaded not guilty, and at the trial insisted that the statute in question was null and void as infringing their personal liberty guaranteed by the Fourteenth Amendment of the Constitution of the United States and depriving them, as citizens of the United States, of the right of exercising a privilege impliedly, if not expressly, guaranteed by the federal Constitution; also that the statute was invalid in that it permitted the use of the flag by publishers, newspapers, books, periodicals, etc., under certain circumstances, thus, it was alleged, discriminating in favor of one class and against others. These contentions were overruled, and the defendants, having been found guilty by a jury, were severally adjudged to pay a fine of $50 and the costs of the prosecution. Upon writ of error, the judgments were affirmed by the Supreme Court of Nebraska, and the case has been brought here upon the ground that the final order in that court deprived the defendants, respectively, or rights specially set up and claimed under the Constitution of the United States.

It may be well at the outset to say that Congress has established no regulation as to the use of the flag, except that in the act approved February 20th, 1905, authorizing the registration of trademarks in commerce with foreign nations and among the states, it was provided that no mark shall be refused as a trademark on account of its nature

"unless such mark . . . consists of or comprises the flag or coat of arms or other insignia of the United States, or any simulation thereof, or of any state or municipality, or of any foreign nation." 33 Stat. 724, § 5.

- - - - - - - - - -

By the statute in question, the state has in substance declared that no one subject to its jurisdiction shall use the flag for purposes of trade and traffic -- a purpose wholly foreign to that for which it was provided by the nation. Such a use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem of national power and national honor. And we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer. It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject, in their enjoyment, to such reasonable restraints as may be required for the general good. Nor can we hold that anyone has a right of property which is violated by such an enactment as the one in question. If it be said that there is a right of property

Page 205 U. S. 43

in the tangible thing upon which a representation of the flag has been placed, the answer is that such representation -- which, in itself, cannot belong, as property, to an individual -- has been placed on such thing in violation of law, and subject to the power of government to prohibit its use for purposes of advertisement.

Walter B. Jones is still in the HOR, and retains his seat on the Armed Services Committee, in spite of Boehner removing him from others. At 73 years old, he still refuses to tow the party line. He's also a member of the Liberty Caucus.

Some people never learn. ;)

True,but it has mostly been the alleged Republican Party that has made a determined effort to keep him in the background. Have you ever seen him on one of the Sunday political talk shows?

The area where the USMC base named Camp LeJune is located in is in Jones district,and he actually appeared before an assembly of Marines on the base and gave an anti-Iraq invasion speech before the invasion happened,and I read on the web the report from the local paper that said the Marines gave him a standing ovation for doing so. I stood up and gave him a standing ovation myself when reading about it. I have been hoping ever since that he would run for president.

I am guessing that was the only newspaper that wrote about this.

You're liberal,

Thanks! So were Thomas Jefferson,Ben Franklin,and George Washington.

"If Donald Trump went somewhere and gave a political speech, and a bunch of rabble took umbrage and decided to riot, that does not make the speech of Donald Trump a crime."

Depends on the content and the intent of that speech.

But burning the flag is done intentionally to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

Political speech is protected. Hate speech is not necessarily political speech and can be made for the purpose of creating a disturbance.

I think that even you will admit that is one VERY blurry line.

But burning the flag is done intentionally to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

Burning a flag is done as a form of political expression and all you just said has been repeatedly rejected by the U.S. Supreme Court.

Frequently, the very purpose of protected political expression is to provoke a reaction. If someone decides to indulge themselves in a breach of the peace or other lawless action, they are the one committing the criminal action.

If a nitwit at a Trump rally was incited to some nitwittery, they did not arrest Donald Trump and remove him from the venue.

I think that even you will admit that is one VERY blurry line.

It certainly can be. But if someone is arrested for burning a flag, it is almost guaranteed that his attorney will argue that it was political expression. It would be a real challenge to show that there was no political intent.

A law prohibiting flag burning per se, prohibits political expression.

Hate speech has a nebulous character. Nowadays, it seems snowflakes call anything they do not like hate speech, and they run off to their safe space.

You're liberal, Thanks! So were Thomas Jefferson,Ben Franklin,and George Washington.

lol

They were classical liberals.

You're a leftist liberal 75 percent of the time.

You're a leftist liberal 75 percent of the time.

Only from the POV of a dogmatic loon.

As I keep saying over and over,and over,and over......,We are either ALL free,or NONE of us are free.

It is such a simple concept I honestly can't understand how anyone could not understand it. A government that has the authority to monitor and punish MY thoughts,words,and political deeds,also has the authority to monitor and punish YOUR thoughts,words,and political deeds.

And if they can,they will. It is the nature of ALL governments EVERYWHERE to seize all the power they can seize in order to stay in power. Free Speech is the most important tool we citizens have to use to prevent that from happening here.

What's it going to take -- someone getting injured or killed burning the flag?

We are either ALL free,or NONE of us are free.

No problem with that.

I just disagree with you that Floyd Mayweather should be on the woman's olynmpic boxing team.

That doesn't make him any less equal and free if he isn't allowed.

"A law prohibiting flag burning per se, prohibits political expression."

States ban cross burning and there's no constitutional crisis. Flag burning can be banned for the same reason -- the intent is to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

"I think flag burning is protected "speech'.

Then our laws against hate speech and sexual harassment should be repealed. Time for everyone to suck it up.

Then our laws against hate speech and sexual harassment should be repealed. Time for everyone to suck it up.

If you don't threaten to kill someone. You should be able to say what you want. So i'm ok with that.

Remember Scalia voted to allow flag burning too.

If they made it illegal to burn flags. That wouldn't bother me to much either. Just saying.

'No president is allowed to burn the First Amendment’

The president president can by executive decision, and he has the guns to back him up.

There are people and philosophies in this world that deserve to be hated. Giving voice to that hatred is not to be prohibited. There are worse things than hate speach. One of them is to succumb to compliance and repression by not pointing it out.

president can [burn the First Amendment] by executive decision

That's treason and Trump should be impeached, tried, and beheaded by ISIS McCain, if he does it.

It would require a Constitutional amendment to make America, like North Korea.

Apple and oranges. Burning the American flag is not the same as a political editorial or a political speech. So you can stop trying to convince me that there's no difference.

What's it going to take -- someone getting injured or killed burning the flag?

According to the court, it is protected just the same. If you are offended, and you injure or kill someone, you will be the one going to prison.

States ban cross burning and there's no constitutional crisis. Flag burning can be banned for the same reason -- the intent is to provoke a reaction, to incite an immediate breach of the peace, or to incite imminent lawless action.

That is the law as you want it to be. The law that is, is the law as stated by the U.S. Supreme Court.

The have been a few attempts to amend the Constitution to make desecrating the flag a crime. One attempt passed in the House but failed in the Senate.

Another Scotus opinion can change it, an amendment can change it, a blog post cannot.

The president president can by executive decision, and he has the guns to back him up.

No president is legally authorized, but he has the power if the army will obey the unlawful order. The Lincoln administration used the army to smash printing presses.

No president is legally authorized, but he has the power if the army will obey the unlawful order.

Legally means nothing to Obama & Company. They've already committed enough crimes to be hung and gotten away with it.

"That is the law as you want it to be."

That is the law if it were consistently applied. If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

You're so focused on the action you're ignoring the consequences. Worse, you fault those offended by the action.

"It would require a Constitutional amendment ..."

Nope. Just call it hate speech. Hate speech is not protected under the first amendment. Game over.

Just call it hate speech. Hate speech is not protected under the first amendment.

Really?

In R.A.V. v. City of St. Paul, (1992) the issue of freedom to express hatred arose again when a gang of white people burned a cross in the front yard of a black family. The local ordinance in St. Paul, Minnesota, criminalized such racist and hate-filled expressions and the teenager was charged thereunder.

Associate Justice Antonin Scalia, writing for the Supreme Court, held that the prohibition against hate speech was unconstitutional as it contravened the First Amendment. The Supreme Court struck down the ordinance.

Scalia explicated the fighting words exception as follows: “The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey”.

Because the hate speech ordinance was not concerned with the mode of expression, but with the content of expression, it was a violation of the freedom of speech. Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence.

The opinion noted "This conduct, if proved, might well have violated various Minnesota laws against arson, criminal damage to property", among a number of others, none of which was charged, including threats to any person, not to only protected classes.

In 2011, the Supreme Court issued their ruling on Snyder v. Phelps, which concerned the right of the Westboro Baptist Church to protest with signs found offensive by many Americans.

The issue presented was whether the 1st Amendment protected the expressions written on the signs. In an 8–1 decision the court sided with Phelps, the head of Westboro Baptist Church, thereby confirming their historically strong protection of hate speech, so long as it doesn't promote imminent violence.

The Court explained, "speech deals with matters of public concern when it can 'be fairly considered as relating to any matter of political, social, or other concern to the community' or when it 'is a subject of general interest and of value and concern to the public."

Game over.

"Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence."

That's what I've been saying about burning the flag. If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

Hate speech is not protected under the first amendment

Wrong. It's the stuff you don't like that really needs that protection.

Hate speech is not protected under the first amendment.
Wrong.

Right.

"Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence."

Halter was brought under the 14th Amendment regarding use of the flag in advertising, and not as a case of individual free speech.

Dear Shit for Brains:

Advertising is speech.

"Thus, the Supreme Court embraced the idea that hate speech is permissible unless it will lead to imminent hate violence."

You got to give him credit. He excels at foot shots.

If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

"IF".

That is the law if it were consistently applied. If the intent and the result of the action incites an immediate breach of the peace it should not be constitutionally protected.

No. If one engages in political speech, as did Donald Trump, and some asshole or group of assholes decide to breach the peace or engage in riotous behavior, as some assholes did, it is the assholes who have committed the criminal offense. The speaker cannot be held criminally liable for what some hotheaded, or intolerant asshole will do in response to protected free speech.

If Gary Great wears a MAGA hat, and Arnie Asshole punches him in the face, Gary has committed no criminal offense, Arnie has.

I do not fault anyone for being offended. I fault them for responding with unlawful actions such as disturbing the peace, committing assault, or rioting.

Dear Shit for Brains:

Advertising is speech.

Advertising using the U.S. flag on a beer bottle is not protected free speech.

The court clearly stated: "we cannot hold that any privilege of American citizenship or that any right of personal liberty is violated by a state enactment forbidding the flag to be used as an advertisement on a bottle of beer."

Which part are you having difficulty understanding. It's the court opinion YOU cited. You should have tried reading it, shit for brains.

Legally means nothing to Obama & Company.

It is just the difference between being legally authorized and simply usurping authority where legal authority is lacking.

"If one engages in political speech, as did Donald Trump..."

... and if his speech intended and resulted in an immediate breach of the peace then he should be held liable.

"I do not fault anyone for being offended."

But that's where you're placing 100% of the blame. I should have asked the question earlier -- Does the first amendment protect all speech or is there some speech that is not protected?

I just disagree with you that Floyd Mayweather should be on the woman's olynmpic boxing team.

When and where have I ever made such a claim? The Olympics is not a government,and they have the right to establish any set of rules they want to establish.

In the FREE COUNTRY that America was CREATED to be,INDIVIDUAL CITIZENS had the undisputed right to discriminate against anyone and everyone they wanted to discriminate against BECAUSE THEY ARE PRIVATE CITIZENS,NOT THE GOVERNMENT.

It's the GOVERNMENT THAT IS NOT ALLOWED TO DISCRIMINATE AGAINST CITIZENS,and the feral government of today seems to do little that isn't discriminating against white people. Especially white males.

I think flag burning is protected "speech'.

Then our laws against hate speech and sexual harassment should be repealed. Time for everyone to suck it up.

BINGO! Give the man a cigar!

If you don't like seeing or hearing what someone is doing,you have the right to turn around and walk away,or to get in their faces and tell them what's making you unhappy.

protected free speech.

Protected by who, shit for brains?

When and where have I ever made such a claim?

Oh so you are a hypocrite on what you said earlier. It's ok a lot of people are inconsistent. TO bad you're inconsistent in the evil direction.

"I do not fault anyone for being offended."

But that's where you're placing 100% of the blame. I should have asked the question earlier -- Does the first amendment protect all speech or is there some speech that is not protected?

I did not place the blame. I cited and quoted the U.S. Supreme Court explicitly placing the blame and gave you multiple examples which you can only ignore. When Donald Trump proclaimed an intent to build a wall, and the liberal nutbags proceded to break the law, Donald Trump was not the criminal.

Some speech is not protected, the classic example being shouting "fire" in a crowded theater. That has nothing to do with the specific example of burning a flag which has been directly and explicitly resolved, for legal purposes, by the U.S. Supreme Court.

You do not have to like or approve of the opinion of the court, but what they say matters. It can be reversed by bringing another case before the court and having the court overturn its prior decisions, or by amending the Constitution.

Disagreeing with Roe v. Wade or Obergefell does not make abortion or same-sex marriage illegal.

protected free speech.

Protected by who, shit for brains?

At your #37, YOU cited and quoted a 1907 opinion of the U.S. Supreme Court as precedent. According to the precedent YOU cited, and from which you quoted, using the U.S. flag on bottles of beer for advertising purposes is not protected free speech. The case you cited was not a 1st Amendment case at all. It was brought under the 14th Amendment which you would have known if you had bothered to read it.

As had been demonstrated in my #6, Texas v. Johnson, 491 U.S. 397 (1989) indicates,

Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 491 U. S. 402-420.

(a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 491 U. S. 402-406.

(b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O'Brien, 391 U. S. 367, whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited

Page 491 U. S. 398

on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs.

Flag burning constituting expressive conduct is protected by the 1st Amendment of the U.S. Constitution.

Texas v. Johnson, 491 U.S. 397 (1989) is the prevailing precedent on flag burning. The happy horseshit you posted was a 14th Amendment case about using the U.S. flag as advertising on beer bottles.

When and where have I ever made such a claim?

Oh so you are a hypocrite on what you said earlier. It's ok a lot of people are inconsistent. TO bad you're inconsistent in the evil direction.

In that case it should be easy for you to produce quotes from me.

Do it,or STFU about it.

using the U.S. flag on bottles of beer for advertising purposes is not protected free speech.

Not protected by who, shit for brains?

Not protected by who, shit for brains?

Assholes on the internet with diarrhea of the mouth.

"I did not place the blame."

Person "A" does something offensive. Person "B" reacts. You place 100% of the blame on person "B" and ignore person "A"'s actions which instigated the confrontation.

Yes. You did place the blame.

"I cited and quoted the U.S. Supreme Court"

So? Everyone knows how the U.S. Supreme Court ruled. If you believe their word is the final word and that's the sum and substance of your argument, why are we even discussing the issue?

"Not protected by who, shit for brains?"

You can ask and ask and he'll never get it. So it's lesson time.

Back in 1907, before the 14th amendment was perverted by activist judges, the Bill of Rights first amendment did NOT apply to the states. Gasp!

Meaning that states were allowed to pass any laws they wished restricting any activity mentioned by the first amendment.

Oh how I long for the days of a federal republic.

Assholes on the internet with diarrhea of the mouth.

IOW, you.

You can ask and ask and he'll never get it.

Shit-For-Brain's disengenous passive voice evasions and ambiguous terms are all too predictable.

You can ask and ask and he'll never get it.

Seems to me that you two clowns don't get it - flag burning has been ruled by SCOTUS as protected speech.

I suggest you both sober up and stop whining about it.

Still terrified to quote the Court, I see.

Read the thread simpleton.

When the Supreme Court ruled to allow American flag burning

On June 21, 1989, a deeply divided United States Supreme Court upheld the rights of protesters to burn the American flag in a landmark First Amendment decision.

In the controversial Texas v. Johnson case, the Court voted 5-4 in favor of Gregory Lee Johnson, the protester. Johnson’s actions, the majority argued, were symbolic speech political in nature and could be expressed even at the affront of those who disagreed with him.

Justice William Brennan wrote the majority decision, with Justices Anthony Kennedy, Thurgood Marshall, Harry Blackmun and Antonin Scalia concurring.  “Johnson was convicted for engaging in expressive conduct. The State’s interest in preventing breaches of the peace does not support his conviction because Johnson’s conduct did not threaten to disturb the peace,” said Brennan. “Nor does the State’s interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression.”

Justice Anthony Kennedy, writing a concurrence, spelled out his reasoning succinctly.

“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result,” Kennedy said. “And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

In 1984, Gregory Lee Johnson burned a flag at the Republican National Convention in Dallas. Officials in Texas arrested Johnson and convicted him of breaking a state law; he was sentenced to one year in prison and ordered to pay a $2,000 fine.

In reaction to the Johnson decision, which only applied to the state of Texas, Congress passed an anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Court struck down that law as unconstitutional.

“If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” said Justice William Brennan.

Now crawl back in your hole.

Johnson was convicted for engaging in expressive conduct.

Expressive conduct, whatever that is. Not speech. You really should try reading your cut and pastes.

Johnson was convicted for engaging in expressive conduct.

Expressive conduct, whatever that is. Not speech. You really should try reading your cut and pastes.

Maybe you should learn to read the entire post instead of cherry-picking the sentences that you delusionally believe bolster your case.

In reaction to the Johnson decision, which only applied to the state of Texas, Congress passed an anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Court struck down that law as unconstitutional.

In reaction to the Johnson decision, which only applied to the state of Texas, Congress passed an anti-flag burning law called the Flag Protection Act of 1989. But in 1990, the Court struck down that law as unconstitutional.

1. The word "speech" doesn't even appear in the quote.

2. It's not a quote from the decision.

Be careful not to set yourself on fire at your next flag burning.

1. The word "speech" doesn't even appear in the quote.

The Court found that, "Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment.

... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."

The Court rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments."

In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."

You will never accept the fact that flag burning has been ruled constitutional by SCOTUS, so we're done here.

"the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."

Conduct, not speech. Nice foot shot!

When you and your cronies expressively wiggle your dinkies in front of an elementary school, that's not speech either.

Conduct, not speech.

Do you not understand the meaning of the phrase "elements of communication"?

The Court rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.

Fucking moron.

Do you not understand the meaning of the phrase "elements of communication"?

Do you understand the meaning of the word "ambiguous"?

SCOTUS has settled the issue - just deal with it.

The 5/4 decision doesn't even say flag burning is speech.

WTF do you think the First Amendment protects?

Your hatred of our Constitution

Your hatred of free speech is deplorable.

WTF do you think the First Amendment protects?

Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Anything else I can help you with?

"WTF do you think the First Amendment protects?"

Nude dancing.

Nude dancing.

And street riots (aka uprisings, fka looting).

In that case it should be easy for you to produce quotes from me.

Ok if you want to go there.

You don't think Mayweather should be allowed to do what women do.

But you are not ok with some faggot not being to do what some women do.

Faggots are immoral not born that way. You're immoral too. That is a fact.

You're also a hypocrite and want special privileges for sex offenders.

Don't go making any pro faggot remarks. Pro faggot remarks are greeted with bannings.

Pro faggot remarks are greeted with bannings.

You need to change the LF Banner:

Welcome to Liberty's Flame

Welcome to Liberty's Flame, an online meeting place for liberty minded people to discuss any and all national and international current events. There will be discussions about our rights under the constitution and rights endowed to us from our creator. The new world order, Bush's wars, government corruption and the coming cashless society will also be included on the discussion boards. Foreign invasions threatening our nation and its culture. Guns, primitive weapons and outdoor survival will also have discussion boards. A "how to" board as well as boards for business and education. Any 9/11 related news and articles. A Bible discussion board for discussion and Bible study. Also for those users interested we'll also have a place for you to submit your own articles. Also a discussion area to leak documents. The discussion boards are not limited to the topics listed; any news that one feels needs to be discussed is welcome at Liberty's Flame. This site was built upon the idea of free speech so everyone is welcome to come and discuss and debate the issues on hand.

Otherwise you will be known as a hypocrite.

You don't think Mayweather should be allowed to do what women do.

Name ONE woman that is a professional heavyweight boxer.

But you are not ok with some faggot not being to do what some women do.

Which is.....?

Faggots are immoral not born that way. You're immoral too. That is a fact.

No,it's religious dogma,which is nothing more than historic superstition.

You're also a hypocrite and want special privileges for sex offenders.

Either name the special privileges or admit you are a liar.

Don't go making any pro faggot remarks. Pro faggot remarks are greeted with bannings.

The sooner you come out of the closet and admit you are bi-sexual or homosexual,the happier you will be. You may even be happy for the first time in your life. Assuming of course you are not one of those people who are never happy unless they are unhappy. Most of those people vote Dim,though.

BTW,it is you and Fire Island who are ALWAYS the ones that bring up the issue of homosexuality here,not me. You might want to spend a little time wondering why that is the case.

Are you pimping for your faggot friends again?

You can tell your pimp to not worry. Nobody is trying to take you away from him,Princess.

You best live by yourself in the woods like the kook Uni bomber.

So? Everyone knows how the U.S. Supreme Court ruled. If you believe their word is the final word and that's the sum and substance of your argument, why are we even discussing the issue?

Because their opinion states what the law actually is and is enforceable, as distinguished from your misguided ruminations which are not the law and are not enforceable against anyone, no matter how much you insist on repeating your meaningless blather.

As you certify that you know that the U.S. Supreme Court precedent is, you have no valid excuse.

Back in 1907, before the 14th amendment was perverted by activist judges, the Bill of Rights first amendment did NOT apply to the states. Gasp!

Back in 1869 the 14th Amendment was passed. It went into effect 38 years before 1907. The 1907 case was a 14th Amendment case. It did not set a first amendment precedent then, and it is uncitable for such purpose now.

IOW, you.

No, the dumb asshole who cited a 1907 14th Amendment case as a 21st century precedent on the First Amendment, after having the actual prevailing precedent cited and quoted.

Seems to me that you two clowns don't get it - flag burning has been ruled by SCOTUS as protected speech.

The world is coming to an end. Deckard and I are in perfect agreement.

Texas v. Johnson, 491 U.S. 397 (1989) (see #6) is a First Amendment case, directly on point about flag burning.

Halter v. Nebraska, 205 U.S. 34 (1907) (see #37) is not a First Amendment case and it is not on point about flag burning. It is a 14th Amendment case concerning commercial advertising on beer bottles.

Even if Halter could be magically construed to be a First Amendment case related to flag burning, it could still not be cited as precedent over the more recent case, Johnson. Halter is irrelevant to the discussion, as are the irrelevant pictures of beer cans.

JUSTICE SCALIA ON FLAG-BURNING

http://heavy.com/news/2016/11/watch-antonin-scalia-flag-burning-donald-trump-video-justice-say-about-first-amendment-freedom-of-speech/

“If I were king, I wouldn’t go about letting people burn the American flag,” Scalia told Piers Morgan in the above interview. “However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”

“Burning the flag is a form of expression,” Scalia continued. He later added that burning a flag is an action that “expresses an idea.”

Scalia made similar comments over the years, referring to people who burn flags as “weirdos.”

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king,” Scalia said at Princeton University in 2015.

In his tweet, Trump showed that he disagrees with that. “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail,” Trump wrote.

Scalia, who died in February 2016, was on the U.S. Supreme Court when two cases centering on flag burning came up – Texas v. Johnson (1989) and United States v. Eichman (1990). In both cases, Scalia voted to protect flag burning as a form of protected free speech and agreed with the majority opinions written by William J. Brennan Jr. The 1989 case overturned a Texas state statue that banned the burning of the flag, while the 1990 case overturned the Flag Protection Act.

"flag burning has been ruled by SCOTUS as protected speech."

No one is saying they didn't. Where did you read that?

The argument is that SCOTUS is being selective and inconsistent. How can they ban hate speech but allow flag burning? How can they ban "fighting words" but allow flag burning? How can they ban behavior that incites violence but allow flag burning?

The FCC bans swear words over the air. Libel is banned. Slander is banned. Shouting "fire" in a theater is banned. There are plenty of examples of speech banned by the federal government.

In reality, you're supporting an exception.

"Back in 1869 the 14th Amendment was passed."

Yes. But it wasn't perverted by liberal justices until decades later.

Freedom of speech wasn't "incorporated" until 1925, in Gitlow v. New York. Meaning neither the federal government nor the federal Bill of Rights had anything to do with that 1907 case.

But it wasn't perverted by liberal justices until decades later.

You're wasting your time. Shit-For-Brains hates the truth.

No one is saying they didn't. Where did you read that?

Good. Then we are in perfect agreement that, according to law, flag burning is protected free speech as determined and reaffirmed by the U.S. Supreme Court.

Yes. But it wasn't perverted by liberal justices until decades later.

Freedom of speech wasn't "incorporated" until 1925, in Gitlow v. New York. Meaning neither the federal government nor the federal Bill of Rights had anything to do with that 1907 case.

Yes. But it wasn't perverted by liberal justices until decades later.

Whatever you say. But no matter how you disagree with the justices, their opinion is the one that counts, not yours.

Texas v. Johnson, 491 U.S. 397 (1989) (see #6) is a First Amendment case, directly on point about flag burning.

Halter v. Nebraska, 205 U.S. 34 (1907) (see #37) is not a First Amendment case and it is not on point about flag burning. It is a 14th Amendment case concerning commercial advertising on beer bottles.

Even if Halter could be magically construed to be a First Amendment case related to flag burning, it could still not be cited as precedent over the more recent case, Johnson. Halter is irrelevant to the discussion, as the irrelevant pictures of beer cans.

Resort to denigrating a Supreme Court decision as 5-4 (#101), as if that means anything, is fruitless. A 5-4 decision is just as enforceable as a 9-0 decision. Obergefell was 5-4 and it struck down every state law in the land prohibiting same-sex marriage.

Neither will resort to citing Gitlow (1925), or your perception of 14th Amendment perversion, change the prevailing binding precedent set by Johnson in 1989.

As Antonin Scalia, no perverter of the Constitution, said,

“If I were king, I wouldn’t go about letting people burn the American flag,” Scalia told Piers Morgan in the above interview. “However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”

So, stop running about espousing the ideas of tyrants. Join with the conservative, original constructionist Justice Scalia, and reject tyranny.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king,” Scalia said at Princeton University in 2015.

Give up trying to be king. Americans do not want a king.

Scalia, who died in February 2016, was on the U.S. Supreme Court when two cases centering on flag burning came up – Texas v. Johnson (1989) and United States v. Eichman (1990). In both cases, Scalia voted to protect flag burning as a form of protected free speech and agreed with the majority opinions written by William J. Brennan Jr.

Flag burning is a form of protected free speech. Work yourself through the seven stages of grief. You seem to be stuck on denial and anger.

• Shock or Disbelief
• Denial
• Anger
• Bargaining
• Guilt
• Depression
• Acceptance and Hope

"Good. Then we are in perfect agreement that, according to law, flag burning is protected free speech as determined and reaffirmed by the U.S. Supreme Court."

Yep. And we are in perfect agreement that, according to law, abortion is legal, marijuana is illegal, asset forfeiture is legal, school prayer is not allowed, gay marriage is legal, gays in the military is allowed, discrimination against gays is illegal (despite religious views), nativity scenes on public lands are illegal, hate crimes (charged against whites) are legal, reverse discrimination is legal at universities, diversity targets (quotas) are legal, voluntary black segregation (at universities) is legal ... well, you get the idea.

Since these are all legal, there's no point in discussing them, right?

"Join with the conservative, original constructionist Justice Scalia"

He's dead. And he's wrong. He's dead wrong.

The court could rule tomorrow that flag burning is hate speech or 'fighting words' or incites violence.

If every time someone burned a flag they got the shit kicked out of them and sent to the hospital, the court would rule that way in a hurry. Is that what you want?

Yep. And we are in perfect agreement that, according to law, abortion is legal, marijuana is illegal, asset forfeiture is legal, school prayer is not allowed, gay marriage is legal, gays in the military is allowed, discrimination against gays is illegal (despite religious views), nativity scenes on public lands are illegal, hate crimes (charged against whites) are legal, reverse discrimination is legal at universities, diversity targets (quotas) are legal, voluntary black segregation (at universities) is legal ... well, you get the idea.

Since these are all legal, there's no point in discussing them, right?

The point of such discussion is that you disagree with the law as it is. That does not change the law. Whether one agrees with it or not, abortion is legal, marijuana is illegal, same-sex marriage is legal... well, you get the idea.

He's dead. And he's wrong. He's dead wrong.

The court could rule tomorrow that flag burning is hate speech or 'fighting words' or incites violence.

The court could rule tomorrow that they got it wrong in Brown v. Topeka Board of Education and bring back segregation.

One can posit that the court could rule any dumb thing one can imagine. If you entertain a good faith belief that the court will rule that flag burning is hate speech or "fighting words," or incites violence, or is an illegal act, I strongly support a course of therapy.

You are fully entitled to your opinion that the Supreme Court is wrong on just about everything. Their opinion is the law, and yours and mine are not.

Check case law. When your old lady calls 911... the Po Po is coming and entering... and if you don't like that, train your varmint family to not call for help. No search warrant needed.

You best live by yourself in the woods like the kook Uni bomber.

No one would dare call the useless 9-1-1 for any type of help from a fascist government. What are you crazy with silly assumptions?

No one would dare call the useless 9-1-1 for any type of help from a fascist government. What are you crazy with silly assumptions?

9-1-1 doesn't get any calls. Who knew?

"If you entertain a good faith belief that the court will rule that flag burning is hate speech or "fighting words," or incites violence, or is an illegal act"

My point is that there is no "constitutional crisis" created by making flag burning illegal. The U.S. Supreme Court simply declares that behavior to be hate speech or "fighting words," or that it incites violence, or is an illegal act.

Done.

My point is that there is no "constitutional crisis" created by making flag burning illegal. The U.S. Supreme Court simply declares that behavior to be hate speech or "fighting words," or that it incites violence, or is an illegal act.

Done.

And that is still as ridiculous a presumption as the Court ruling that Brown was wrong and separate but equal was decided correctly in Plessy. Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson.

Not too long ago there was a proposed constitutional amendment that cleared the House but not the Senate. If it is to change any time soon, it will be by an amendment.

PROPOSED FLAG DESCECRATION AMENDMENT

An amendment proposal almost made it to the states in 2005.

https://www.congress.gov/bill/109th-congress/house-joint-resolution/10

H.J.Res.10 - Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States.

109th Congress (2005-2006)

Sponsor: Rep. Cunningham, Randy (Duke) [R-CA-50] (Introduced 01/25/2005)

Committees: House - Judiciary

Committee Reports: H. Rept. 109-131

Latest Action: 06/22/2005 Motion to reconsider laid on the table Agreed to without objection.

https://www.congress.gov/bill/109th-congress/house-joint-resolution/10/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D

06/22/2005-2:38pm
On passage Passed by the Yeas and Nays: (2/3 required): 286 - 130 (Roll no. 296). (text: CR H4904)
Action By: House of Representatives

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https://www.congress.gov/bill/109th-congress/senate-joint-resolution/12

S.J.Res.12 - A joint resolution proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States.

109th Congress (2005-2006)

Sponsor: Sen. Hatch, Orrin G. [R-UT] (Introduced 04/14/2005)

Committees: Senate - Judiciary

Latest Action: 06/27/2006 Failed of passage in Senate by Yea-Nay Vote. 66 - 34. Record Vote Number: 189.

"Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson."

Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."

If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states. I think everyone has had enough of this f**king judicial oligarchy.

Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."

And you could hold your breath until you turn blue.

The Executive and Legislature cannot overturn a SCOTUS decision interpreting the Constitution. Continuing the argument to its logical conclusion, the Executive could use the army to imprison the judges and legislatures, and the President could proclaim himself King.

In theory, the Congress could totally defund the Executive and Judicial branches by doing nothing.

Before the Executive and Legislative engage in nonsense, they could initiate an amendment and give it to the states for ratification. There is a reasonable chance that 3/4ths of the states would ratify it.

"And you could hold your breath until you turn blue."

No. I said they could threaten to eliminate judicial review in the hope that the U.S.Supreme Court would come to it's senses.

Only if the U.S. Supreme Court refused to recognize the will of the people would Congress act.

Time to end the judicial oligarchy and get back to a government which reflects the will of the people.

With the U.S. Supreme Court always having the final word, that kind of negates the Founder's intent of three co-equal branches of government.

Time to end the judicial oligarchy and get back to a government which reflects the will of the people.

I agree that the Supreme court was never given the power it has usurped.

Question though. What happens when courts disagree?

I guess we will never have a perfect system.

In the 90's the Ohio Supreme court ruled that the schools in Ohio are unconstitutionally funded. Today we have the same system.

So maybe there is a way to ignore the Supreme court and some of its dumb decisions.

"Question though. What happens when courts disagree?"

You mean when lower federal appellate courts disagree? Right now the U.S. Supreme Court is the final arbiter and their decision applies to every state and every citizen.

But if Congress decides that an issue is too divisive (abortion, gay marriage, "Under God", school prayer, flag burning, whatever), they could eliminate the judicial review of the U.S. Supreme Court and leave those decisions to the Regional federal courts. Or, eliminate the judicial review of all federal courts and leave the decision with each state Supreme Court.

Now that may sound hodge-podge and arbitrary, but keep in mind that's the way it was for 200 years until the U.S. Supreme Court started incorporating the federal BOR and extending those rights to the states. Each state had it's own BOR and the state Supreme Court interpreted those rights for that state.

Maybe along the lines of an MOU model.

"In the 90's the Ohio Supreme court ruled that the schools in Ohio are unconstitutionally funded. Today we have the same system."

Yes, the Ohio Supreme Court ruled that Ohio's current method of funding schools violated the Ohio Constitution, but it provided no real guidance on how to create a constitutional school-funding program.

Years passed and the Ohio Supreme Court eventually determined that the Ohio government had made a good- faith effort to change public school funding, and the justices overturned their earlier rulings.

Ohio got lucky. The Kansas Supreme Court ordered billions of dollars of additional taxpayer spending on schools. And they're still not happy.

"I have not forgotten that I am overdue on delivering a possible statutory solution."

Neither have I.

"For now, think structural rather than topic specific restrictions. Maybe along the lines of an MOU model."

Glad to. As long as I don't have to come up with your solution. But, short of an amendment, any solution could be negated by the next administration or the next Congress.

The ideal structural solution would be to repeal the 14th amendment which is being used by the U.S. Supreme Court as their authorization to interfere with state decisions.

No. I said they could threaten to eliminate judicial review in the hope that the U.S.Supreme Court would come to it's senses.

Only if the U.S. Supreme Court refused to recognize the will of the people would Congress act.

The U.S. Supreme Court is a court of law. It is not there to "recognize the will of the people." It is there to interpret the law as it is, and render decisions in accordance with the law.

It is not there to stick a finger in the wind, or rule in accordance with the latest opinion poll. Congress can act to change the law via statute, or the Constitution can be amended pursuant to Article 5.

Threatening to eliminate judicial review would be threatening to overthrow the lawfully established form of government.

"It is not there to "recognize the will of the people. It is there to interpret the law as it is, and render decisions in accordance with the law."

The Roe v Wade decision was based on an "emanation from a penumbra" in response to the will of the people at the time. There is nothing in the U.S. Constitution which protects the right of mothers to kill their unborn children.

And that's one example of maybe 10 that come to mind.

"Threatening to eliminate judicial review would be threatening to overthrow the lawfully established form of government."

Baloney. Our lawfully established form of government allows the elimination of judicial review via the U.S. Constitution, Article III, Section 2.

The Roe v Wade decision was based on an "emanation from a penumbra" in response to the will of the people at the time. There is nothing in the U.S. Constitution which protects the right of mothers to kill their unborn children.

Shit-For-Brains loves judicial legislation, almost as much as he hates original intent.

With the U.S. Supreme Court always having the final word, that kind of negates the Founder's intent of three co-equal branches of government.

Arguing from a false premise.

The Supreme Court has the final say on interpreting the law.

If it is a statute law, the legislature has the power to amend or repeal the statute.

The Supreme Court has the final say on interpreting the Constitution. Article 5 provides the means to amend or repeal a provision of the Constitution.

In the 90's the Ohio Supreme court ruled that the schools in Ohio are unconstitutionally funded. Today we have the same system.

So maybe there is a way to ignore the Supreme court and some of its dumb decisions.

The Ohio constitution of 1851 at Article 6, Section 2, provided:

Sec. 2. The general assembly shall make such provisions, by taxation or otherwise, as, with the interest arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State; but no religious or other sect or sects shall ever have any exclusive right to or control of any part of the school funds of this State.

The Ohio Supreme Court issued four opinions on school system and funding from 1997 thru 2002, known as DeRolph I thru IV.

The problem is that feel-good bullshit was inserted into the state constitution. Consider if the Federal Constitution had said, "the Congress shall make such provisions as will secure a thorough and efficient system of health care throughout the nation." It sounds good, it would be the organic law of the land, but what the hell would it mean in a legal sense?

An Amendment could be made to the Federal constitution requiring the legislature to fully fund Medicare, Medicaid, Social Security and whatever else one may choose to throw in there. And if the money does not exist, then what? On its face, the Ohio provision requires funding without regard to what funds are available, and to achieve an unclear result. The Court seems unable to define, in specific terms, what they require.

In DeRolph, the court took the case and then did not know what to do with it.

The Opinion of the Court is given below in full. In the dissenting opinion of MOYER, C.J., paragraphs 34 to 38:

{¶34} Unfortunately, the majority today issues an opinion that ignores as many questions as it decides. It thereby evades its fundamental responsibility to resolve a dispute it agreed five years ago to resolve and leaves the citizens of Ohio with a decision that can at best be described as ambiguous.

{¶35} As a result, it is virtually inconceivable that today’s judgment will, in fact, end litigation relative to the constitutionality of Ohio’s current schoolfunding system. The issues will almost certainly again come before this, or another, Ohio court. I write today in anticipation of that unfortunate eventuality. Specifically, I write to reiterate that I do not consider dicta contained in DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733 (“DeRolph I”), or DeRolph v. State (2000), 89 Ohio St.3d 1, 728 N.E.2d 993 (“DeRolph II”), to constitute the law of this case or controlling precedent.

{¶36} Unlike the majority, I do not believe the creation of a “complete systematic overhaul” to be the “core constitutional directive of DeRolph I,” majority opinion at ¶ 5, nor do I believe that the General Assembly is constitutionally required to make such an overhaul. See DeRolph III, 93 Ohio St.3d at 312, 754 N.E.2d 1184 (“It is the law contained in the syllabi to DeRolph I and DeRolph II and the principles established by court entry in the case at bar by which we are required to evaluate the constitutionality of the school-funding system now statutorily in place” [emphasis added]). Indeed, today’s majority opinion at ¶ 2 acknowledges that DeRolph I did “ ‘neither more nor less than the syllabus law sets forth,’ ” quoting DeRolph I, 78 Ohio St.3d at 262, 677 N.E.2d 733 (Pfeifer, J., concurring).

{¶37} The majority today vacates our decision in DeRolph III, replaces it with little more than a summary proclamation of a change of “collective mind,” declares the current school-funding system unconstitutional, and proclaims DeRolph I and II to be the law of the case. It thereby returns the parties (and all Ohio citizens) to the uncertain positions in which they stood two and one-half years ago on May 11, 2000, when DeRolph II was decided, with one exception: the majority fails to retain jurisdiction of the cause by the courts as it did after both DeRolph I and DeRolph II. In so doing, it implicitly declares this case concluded, yet does so without fully disposing of the issues that have developed during the litigation.

{¶38} The court in DeRolph I stayed the effect of its decision for 12 months and remanded the cause to the trial court, which was granted plenary jurisdiction to enforce that decision. Id., 78 Ohio St.3d at 213, 677 N.E.2d 733. Shortly thereafter, this court answered in the negative the trial court’s question whether the Supreme Court should “retain exclusive jurisdiction of the case to review all remedial legislation enacted.” DeRolph v. State (1997), 78 Ohio St.3d 419, 678 N.E.2d 886.

In DeRolph IV below, the majority made believe they solved the problem by pronouncing at paragraph 5, "we direct the General Assembly to enact a school-funding scheme that is thorough and efficient, as explained in DeRolph I, DeRolph II, and the accompanying concurrences."

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http://www.sconet.state.oh.us/rod/docs/pdf/0/1997/1997-ohio-84.pdf

DeRolph I, 51 pp.

DeRolph v. State, 78 Ohio St.3d 193, 1997

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http://www.sconet.state.oh.us/rod/docs/pdf/0/2000/2000-ohio-437.pdf

DeRolph II, 82 pp.

DeRolph v. State, 89 Ohio St.3d 1, 2000-Ohio-437

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http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-1343.pdf

DeRolph III, 108 pp.

DeRolph v. State, 93 Ohio St.3d 309, 2001-Ohio-1343

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http://www.sconet.state.oh.us/rod/docs/pdf/0/2002/2002-ohio-6750.pdf

DeRolph IV, 25 pp.

DeRolph v. State, 97 Ohio St.3d 434, 2002-Ohio-6750

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DeRolph IV, Opinion of the Court (only)

DEROLPH ET AL., APPELLEES, v. THE STATE OF OHIO ET AL., APPELLANTS.

[Cite as DeRolph v. State, 97 Ohio St.3d 434, 2002-Ohio-6750.]

Constitutional law — Education — Schools — Current school-funding system unconstitutional —General Assembly directed to enact a school-funding scheme that is thorough and efficient.

(No. 1999-0570 — Submitted October 30, 2001 — Decided December 11, 2002.)

Common Pleas Court of Perry County, No. 22043.

ON MOTION FOR RECONSIDERATION.

__________________

PFEIFER, J.

{¶1} In DeRolph v. State (2001), 93 Ohio St.3d 309, 310, 754 N.E.2d 1184 (“DeRolph III”), this court issued an opinion with which none of the majority was “completely comfortable.” As the author, Chief Justice Moyer, noted, we did so in an attempt to eliminate the “uncertainty and fractious debate” occasioned by our continued role in the case. Id. at 311, 754 N.E.2d 1184. A motion was filed asking this court to reconsider its decision. We granted that motion and ordered a settlement conference pursuant to S.Ct.Prac.R. XIV(6)(A). DeRolph v. State (2001), 93 Ohio St.3d 628, 758 N.E.2d 1113. Settlement efforts were unavailing, and we now rule on the merits of the case on reconsideration.

{¶2} In DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733, syllabus, (“DeRolph I”), this court stated, “Ohio’s elementary and secondary public school financing system violates Section 2, Article VI of the Ohio Constitution, which mandates a thorough and efficient system of common schools throughout the state.” In DeRolph I, this court admonished the General Assembly to create a new school-funding system, but otherwise provided no specific

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guidance as to how to enact a constitutional school-funding system. Id. at 213, 677 N.E.2d 733. See id. at 262, 677 N.E.2d 733 (Pfeifer, J., concurring) (the majority opinion “does neither more nor less than the syllabus law sets forth”).

{¶3} Three years later, after the General Assembly had enacted various changes to the school-funding system, this court again determined that the schoolfunding system was unconstitutional. DeRolph v. State (2000), 89 Ohio St.3d 1, 728 N.E.2d 993 (“DeRolph II”). We stated, “ ‘[T]he sovereign people made it mandatory upon the General Assembly to secure not merely a system of common schools,’ but rather a thorough and efficient system of common schools. Miller v. Korns (1923), 107 Ohio St. 287, 297-298, 140 N.E. 773, 776, approved and followed.” DeRolph II, paragraph one of the syllabus. As in DeRolph I, the majority did not provide specific guidance to the General Assembly as to how to enact a constitutional school-funding system. But, see, DeRolph II at 47, 728 N.E.2d 993 (Pfeifer, J., concurring). Some of us praised the efforts of the General Assembly, and that praise was deserved. Id. at 41, 728 N.E.2d 993 (Douglas, J., concurring).

{¶4} We are aware of the difficulties that the General Assembly must overcome, and that is why we have been patient. The consensus arrived at in DeRolph III was in many ways the result of impatience. We do not regret that decision, because it reflected a genuine effort by the majority to reach a solution to a troubling constitutional issue. However, upon being asked to reconsider that decision, we have changed our collective mind. Despite the many good aspects of DeRolph III, we now vacate it. Accordingly, DeRolph I and II are the law of the case, and the current school-funding system is unconstitutional.

{¶5} To date, the principal legislative response to DeRolph I and DeRolph II has been to increase funding, which has benefited many schoolchildren. However, the General Assembly has not focused on the core

[2]

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constitutional directive of DeRolph I: “a complete systematic overhaul” of the school-funding system. Id., 78 Ohio St.3d at 212, 677 N.E.2d 733. Today we reiterate that that is what is needed, not further nibbling at the edges. Accordingly, we direct the General Assembly to enact a school-funding scheme that is thorough and efficient, as explained in DeRolph I, DeRolph II, and the accompanying concurrences.

{¶6} We are not unmindful of the difficulties facing the state, but those difficulties do not trump the Constitution. Section 2, Article VI of the Ohio Constitution states, “The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools * * *.” This language is essentially unchanged from the initial report from the Standing Committee on Education at the Constitutional Convention of 1850-51. I Report of the Debates and Proceedings of the Convention for the Revision of the Constitution, 1850-51 (1851) 693 (“Debates”). Even the minority report, presented by those opposed to the above language, had virtually the same import. It stated, “The General Assembly shall provide by law a system of common schools, and permanent means for the support thereof * * *.” Id. at 694.

{¶7} The delegates and through them the people of this state expressed their desire for more and better education and their desire that the state should be responsible for it. Delegate J. McCormick, from Adams County, stated, “Under the old Constitution it is provided that public schools and the cause of education shall be forever encouraged; and, under this constitutional provision, we have trusted the General Assembly for forty-eight years; and we may trust them for forty-eight years longer, without any good result. * * * Our system of common schools, instead of improving in legislative hands, has been degenerating; and I think it is time that we should take the thing in hands ourselves.” II Debates 702.

[3]

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William Hawkins, a delegate from Morgan County, said, “[W]e are warranted by public sentiment in requiring at the hands of the General Assembly a full, complete and efficient system of public education.” Id. at 16. The delegates perceived the General Assembly of that time as being insufficiently committed to education. Even though some delegates wanted to leave matters wholly to local authorities, see id. at 17, the delegates in their wisdom decided to include the Thorough and Efficient Clause in the Constitution. They and the people used the Constitution to command ongoing affirmative action by the General Assembly.

{¶8} James Taylor, a delegate from Erie County, stated, “I think it must be clear to every reflecting mind that the true policy of the statesman is to provide the means of education, and consequent moral improvement, to every child in the State, the offspring of the black man equally with that of the white man, the children of the poor equally with the rich.” Id. at 11. Samuel Quigley, a delegate from Columbiana County, stated, “[T]he report directs the Legislature to make full and ample provision for securing a thorough and efficient system of common school education, free to all the children in the State. The language of this section is expressive of the liberality worthy a great State, and a great people. There is no stopping place here short of a common school education to all children in the State.” Id. at 14. The delegates knew what they wanted, what the people wanted, and that it was necessary to use the Constitution to achieve what they wanted.

{¶9} The Thorough and Efficient Clause is part of our Constitution and part of our heritage. There were delegates who approved of even stronger language. Delegate McCormick proposed “a consolidation of all the general and local funds of the State, and distribution of the amount equally among the children of the State.” II Debates at 17. Otway Curry, a delegate from Union County, expressed his concern that the Thorough and Efficient Clause would “prove totally insufficient and powerless.” Id. at 710. Were this court to avoid its

[4]

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responsibility to give continued meaning to the Constitution, his fears would become reality.

{¶10} The Constitution of this state is the bedrock of our society. It expressly directs the General Assembly to secure a thorough and efficient system of common schools, and it does so expressly because the legislature of the midnineteenth century would not. As R.P. Ranney, a delegate from Trumbull County, put it, “I desire to lay a plan such as within certain limits the Legislature shall be bound to carry out.” Id. at 16.

{¶11} We realize that the General Assembly cannot spend money it does not have. Nevertheless, we reiterate that the constitutional mandate must be met. The Constitution protects us whether the state is flush or destitute. The Free Speech Clause of the United States Constitution, the Equal Protection Clause of the United States Constitution, the Thorough and Efficient Clause of the Ohio Constitution, and all other provisions of the Ohio and United States Constitutions protect and guard us at all times. Harman Stidger, a delegate from Stark County, said, “If we should leave every thing to the Legislature, why not adjourn this Convention sine die, at once?” Id. at 11. The same could be said of this court and the Ohio Constitution.

Judgment accordingly.

RESNICK and F.E. SWEENEY, JJ., concur.

RESNICK, J., concurs separately.

DOUGLAS, J., concurs in judgment only.

LUNDBERG STRATTON, J., concurs in part and dissents in part.

MOYER, C.J., dissents.

COOK, J., dissents.

__________________

"It is not there to "recognize the will of the people. It is there to interpret the law as it is, and render decisions in accordance with the law."

The Roe v Wade decision was based on an "emanation from a penumbra" in response to the will of the people at the time.

[misterwhite #139] Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."

I have voiced my dissent to Roe, believing jurisdiction should reside with the states.

The courts do not exist to "recognize the will of the people." It is not their purpose to respond to polls. It is YOU who espouses that they MUST respond to what you perceive to be the will of the people, or unlawful and unconstitutional action should be taken to knock them out of the game. You explicitly made reference to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions...."

This is preposterous nonsense.

Our lawfully established form of government allows the elimination of judicial review via the U.S. Constitution, Article III, Section 2.

There is no provision to eliminate judicial review. Read it again, more carefully this time. Your assertion leads to the inevitable conclusion that the whole judicial branch can effectively, and permanently, be eliminated by the legislature.

If, as you posit, the legislature has the power to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions," what would escape this awesome power?

If the lawful power exists to eliminate any judicial review of federal legislative or executive actions you desire to exempt from judicial review, what federal legislative or executive actions cannot be exempted from judicial review?

There is authority given to the Congress to limit APPELLATE JURISDICTION of the Supreme Court.

However, were judicial review eliminated, as you indicate it can be, that would result in a king whose edicts could not be challenged by any legal process.

The Constitution states that Justices "shall hold their Offices during good Behaviour."

---

The Supreme Court has the final say on interpreting the Constitution.

Not so, the Justices may be impeached by the HOR. This happened to Justice Samuel Chase in 1805.

www.supremecourt.gov/faq.aspx#faqgi5

They're all eligible to be executed after a speedy trial. So they can't just do whatever they want without facing consequences.

The Supreme Court has the final say on interpreting the Constitution.

Not so, the Justices may be impeached by the HOR. This happened to Justice Samuel Chase in 1805.

The Supreme Court has the final say on interpreting the Constitution.

Justices may be impeached by the House. Justice Chase was impeached by the House, just as President Bill Clinton was impeached by the House.

All charges against Justice Chase involved actions taken as a trial judge in lower courts. Justice Chase was acquitted of all charges by the Senate.

That a Justice may be impeached for high crimes or misdemeanors is irrelevant to whether the U.S. Supreme Court has the final say on interpreting the Constitution.

U.S. Supreme Court
MARBURY v. MADISON, 5 U.S. 137 (1803)
5 U.S. 137

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

* * *

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

"It is YOU who espouses that they MUST respond to what you perceive to be the will of the people, or unlawful and unconstitutional action should be taken to knock them out of the game."

You seem confused so let me be clear:

I am saying that, based on observable action at these flag burning protests, the U.S. Supreme Court should declare flag flag bu fl flag flag bu flag flag burning to be categorized as "hate speech", "fighting words" or an incitement to imminent violence. Before someone is injured or killed.

IF the U.S. Supreme Court refuses to do this, I am saying that Congress should exercise their constitutional power under Article III, Section 2, and strip the court's appellate jurisdiction on this matter and turn it over to the states.

"If, as you posit, the legislature has the power to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions," what would escape this awesome power?"

Nothing. That's like asking, "If Congress has the power to regulate Commerce, what can't they regulate?" Same answer.

And why is this power "awesome" when Congress wields it but not when the U.S. Supreme Court wields it? Need I remind you that the people elect members of Congress, not the judiciary, and that Congress is responsible to the people, not the judiciary.

"If it is a statute law, the legislature has the power to amend or repeal the statute ...."

.... unless Congress removes the court's appellate jurisdiction on the matter.

"Shit-For-Brains loves judicial legislation, almost as much as he hates original intent."

Ohhhh, having 50 different laws is so messy and confusing. It's much better to have five unelected and unaccountable justices decide how all of us should live.

And if you don't like it, amend the U.S. Constitution.

You seem confused so let me be clear:

Let me make crystal clear what you actually said:

#138. To: nolu chan (#137)

"Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson."

Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."

If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states. I think everyone has had enough of this f**king judicial oligarchy.

misterwhite  posted on  2016-12-07   9:31:13 ET  Reply   Trace   Private Reply  

Those are your actual words. You seem confused and unable to recall them accurately. I have done my best to assist with combatting your short-term memory loss and the resulting confusion.

I am saying that, based on observable action at these flag burning protests, the U.S. Supreme Court should declare flag flag bu fl flag flag bu flag flag burning to be categorized as "hate speech", "fighting words" or an incitement to imminent violence. Before someone is injured or killed.

It is not the function of the U.S. Supreme Court to ban flag burning before some asshat does something illegal such as assault or murder. When an asshat acts to unlawfully prevent constitutionally protected free speech, it is not the function of the government to coddle the lawbreaker.

The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning" to be categorized as "hate speech", "fighting words" or an incitement to imminent violence.

Just because some asshat responds with violence to constitutionally protected speech of which he does not approve, does not provide any basis to ban all such speech. The lawbreaker is put behind bars or put in the ground as appropriate.

If the law is deemed to need changing, it is up to the appropriate authority to change the law. That authority is not the court.

[138] Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game." If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states.

[158] IF the U.S. Supreme Court refuses to do this, I am saying that Congress should exercise their constitutional power under Article III, Section 2, and strip the court's appellate jurisdiction on this matter and turn it over to the states.

There is no constitutional way for Congress to so act.

Congress cannot take away the ORIGINAL jurisdiction of the Federal courts. It can only limit the APPELLATE jurisdiction of the U.S. Supreme Court.

The U.S. District Courts hold ORIGINAL jurisdiction in most cases. They are bound by existing precedents set by their Circuit Court or the U.S. Supreme Court.

What you imagine you can do is elimate the entire Federal judicial branch.

Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.

Congress lacks authority to move jurisdiction from the Federal courts to the State courts. Federal jurisdiction is assigned by the Constitution. Federal law only determines which Federal court exercises the jurisdiction assigned by the Constitution. The jurisdiction of the Judicial branch is only limited by declaring and implementing martial law.

Congress has no authority to eliminate the entire Judicial branch, nor limit any Federal jurisdiction except for Supreme Court APPELLATE jurisdiction. That does not leave jack shit up to the States, or State courts as final authority on matters assigned to the jurisdiction of the Federal courts by the Constitution.

There is no ORIGINAL jurisdiction in the Courts of Appeals. They never function as a trial court or court of the first instance.

ORIGINAL jurisdiction for most Federal cases is assigned to the District Courts. They function as trial courts.

The Supreme Court can function as either a trial court or an appellate court. They can even convene a jury trial.

If your illustrious and grand newly powers were real, and were implemented, then by this simple magical device, the Congress could return the questions of slavery and abortion to the State courts as the final arbiter of whether all abortions were lawful (or unlawful) within a state, or whether any provision of the Constitution would be subject to review by the Federal courts.

All Federal court jurisdiction could be rendered null and void near the Mexican border and vigilantes could just aliens crossing illegally. As there would be no applicable Federal law, States could make any such shooting unprosecutable.

And, of course, as you would put the Federal Judicial branch courts out of business, if someone burns a flag in Washington, D.C. and some asshat decides to behead him on the spot, the crime would not have occurred in any state and there could be no Federal prosecution... unless... wait for it.... martial law were declared and the lawless one could be dragged before a military tribunal, a Federal court of the Executive branch.

Quit making believe that Congress has the authority to eliminate the Judicial branch and return constitutionally assigned Federal jurisdiction to the States.

"If it is a statute law, the legislature has the power to amend or repeal the statute ...."

.... unless Congress removes the court's appellate jurisdiction on the matter.

Limiting the APPELLATE jurisdiction of the U.S. SUPREME COURT is irrelevant to this point.

If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes. They have the power to override any veto.

If it is an interpretation of the CONSTITUTION, Congress can't do a thing about it but propose a Constitutional amendment to the States, for their approval.

You may not like the Amercan system of government, and express disdain for it, or even hate it with a passion, and you may wish for a king and all the royal power that comes with royal monarchy, but that is not the system that we have.

Congress cannot remove the jurisdiction of the Federal Judicial branch because you find it inconvenient to your desire to crush what has been held to be constitutionally protected free speech.

"If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes."

Oh? Congress passed, and the President signed, the Defense of Marriage Act and it was ruled unconstitutional by the U.S. Supreme Court. Now what? How do you re-write, "Marriage is between one man and one woman"?

Well, you can't. So the House voted 233-194 to remove U.S. Supreme Court appellate jurisdiction. But the legislation died in the Senate.

"because you find it inconvenient to your desire to crush what has been held to be constitutionally protected free speech."

That's my point. Flag burning shouldn't be protected -- no more than "hate speech", fighting words", or behavior that acts as an incitement to imminent violence.

"The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning"

Are you mocking my stutter? Do you think the first amendment protects your making fun of people with a browser disability?

Go burn a flag.

It's much better to have five unelected and unaccountable justices decide how all of us should live.

I am still studying the issue, but here are the bones of the solution. Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally. In any case dependent on the resolution of a question of the constitutionality of an act of Congress, the Court would be allowed to proceed only with the explicit permission of Congress. That permission could be either conditional or unconditional, depending on Congressional will as expressed in the permission granted to the Court in the specific case.

I'll return this proposed solution with additional details after a brief discussion of the history of judicial review. Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary.

Brutus, the antifederalist, predicted this in his Essay No. XV, when he observed that federal judges would "extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion."

We have now arrived at the point where the Court arrogantly and unconstitutionally legislates from the bench at will, assuming powers reserved to Congress. Allowing that to continue undermines our republican form of government and the rule of law. By subjecting the Court to limitations upon such usurpations, Congress could reestablish America's lost balance of powers.

A statutory solution provides tremendous opportunities for flexible and innovative solutions, especially with the guidance of a President with great negotiation skills. With that in mind, the following is little more than a very rough first draft for possible statutory construction.

Congress would require the Court to submit a request to engage in judicial review on a case-by-case basis, with the Court given an opportunity to provide Congress with a justification for the request. If the justification was sufficiently compelling, Congress might allow the Court to proceed unconditionally, if it so chose. Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities.

Personally, I would prefer Congress to impose its will on the Court without any regard to the feelings of the corrupt justices controlling it. However, Congress could take (or pretend to take) a more concilliatory approach, treating the solution as some form of partnership between the two branches. (Such as a binding Memorandum of Understanding or something similar.)

Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.

Anyway, like I said, first conceptual draft.

"If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes."

Oh? Congress passed, and the President signed, the Defense of Marriage Act and it was ruled unconstitutional by the U.S. Supreme Court. Now what? How do you re-write, "Marriage is between one man and one woman"?

Well, you can't. So the House voted 233-194 to remove U.S. Supreme Court appellate jurisdiction. But the legislation died in the Senate.

Jurisdiction cannot be removed retroactively.

Congress passed a law that was ruled UNCONSTITUTIONAL. the Court held it UNCONSTITUTIONAL. If they rewrote it so it would be CONSTITUTIONAL, they would have no problem.

Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL. It would not remove the binding precedent that has already been cast upon the UNCONSTITUTIONAL effort, and which is binding on all Federal and State courts.

Writing another UNCONSTITITIONAL law will not escape Federal judicial review.

[nolu chan #162]

If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes. They have the power to override any veto.

If it is an interpretation of the CONSTITUTION, Congress can't do a thing about it but propose a Constitutional amendment to the States, for their approval.

You cannot escape the law with your juvenile tricks.

The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning"

Are you mocking my stutter? Do you think the first amendment protects your making fun of people with a browser disability?

Go burn a flag.

I quoted you. It made as much sense as your attempts to reinvent the legal system.

I will go burn your surrender flag, Mr. WHITE.

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.

What you desire the Congress is, of course, blatantly unconstitutional.

Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73:

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

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:

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)

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.

To see the jurisdiction held by the U.S. District Courts, see 28 U.S.C. Chapter 85 (§§ 1330 - 1369).

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.

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 (1796)

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/

Calder v. Bull, 3 Dall. 386 (1798)

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.

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.

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.

Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court.

"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.

Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers.

"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.

"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution."

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.

"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."

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.

"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."

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.

"You cannot escape the law with your juvenile tricks."

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.

If the review is nonbinding the court could say whatever they want.

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.

Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.

It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue.

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.

Moreso, the court's constitutional findings could be used as part of the debate in Congress.

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.

And you don't respect private property either, so you're a communist as well!

If they own the flag, they can do with it as they wish

I couldn't agree more.

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.

"If you own a flag and you burn it, what skin is it off of my nose?"

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?

"If you burn my flag, it is a crime. If I burn my flag it is free speech."

Hate speech is just words and nothing is burned. Yet there are laws against it.

the Imperial Presidency we have had on and off since Lincoln(on), Coolidge(off), FDR(on), Johnson/Nixon/Reagan/Bushes/Clinton/Obama(all on)

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.

"Time to return to original intent."

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".

"Where would they deport someone who's not a citizen of any country?"

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.

"That could even reach to more pedestrian concerns such a statutory ambiguity."

Yeah. What you said. That too.

(I think "The Ambiguous Statutes" would be a great name for a rock band.)

they obviously hate the United States.

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.

"No, most likely they just hate the corrupt unconstitutional 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.

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.

"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.

clap-trap gobbledygook

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.

"With a government closing free expression"

Do you mean banning "hate speech"?

"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.". Nolu chump

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.

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.

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.

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.

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.

[Roscoe #171] Congress may limit both the appellate and original jurisdiction of the inferior courts it establishes. For example, the United States Bankruptcy Court.

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.

• Bankruptcy Courts are decidedly NOT Article III courts, you moron.

• Bankruptcy Courts are ARTICLE I courts, you little shit.

• The non-Article III bankruptcy judges are not appointed for life tenure, or tenure during good behavior. They are appointed for a term of years.

• Removal does not require impeachment by the Congress. They may be removed by a circuit judicial council.

• The Bankruptcy Court and bankruptcy judges only have authority to hear matters that arise under the Bankruptcy Code.

• They do not exercise "the judicial power of the United States" but perform duties delegated to them by district judges. Bankruptcy judges serve as judicial officers of the United States district court established under Article III of the Constitution.

• You are embarrassing yourself.

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:

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.

- - - - - - - - - -

Continuing your public display of being dumb, stupid and ignorant about U.S. law and the U.S. legal system,

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.

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.

LETTER FROM SECRETARY OF STATE THOMAS JEFFERSON TO THE JUSTICES OF THE U.S. SUPREME COURT

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,
Thos. Jefferson

- - - - - - - - - -

John Jay responded that the U.S. Supreme Court that the Court could not do so.

LETTER FROM CHIEF JUSTICE JOHN JAY AND THE ASSOCIATE JUSTICES OF THE U.S. SUPREME COURT TO PRESIDENT WASHINGTON

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)

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.

- - - - - - - - - -

https://supreme.justia.com/cases/federal/us/514/211/case.html

Plaut et al v Spendthrift Farm, Inc, et al, 514 US 211 (1994)

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.

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)

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."

[...]

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)).

"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.

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

HISTORY OF CONGRESS.

[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,
JOHN BLAIR,
RICHARD PETERS.

[...]

https://www.scribd.com/document/333927309/Hayburn-s-Case-2-Dal-409-1792-Legislative-Review-of-Juciciary

Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.

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.

"You cannot escape the law with your juvenile tricks."

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.

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.

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:

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

[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.

"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

[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 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 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.

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,

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.

All precedents should be burned, and each case decided with only logical understanding of the intent of the law.

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.

You don't like the government? Burn something else.

Like his EBT card?

"After the Court of Appeals finds your unconstitutional law UNCONSTITUTIONAL, you would have no appeal."

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?

"Congress thought it could? It didn't get out of committee."

Ah! So your conclusion is that it didn't get out of committee because it was unconstitutional?

"I have never supported hate speech laws."

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.

"Explain "hate speech" and the authority of Congress to close the obvious "loop holes."

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.

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.

Correct interpretation of the powers of Congress.I

You bet, nice to see a shit for brains agreeing for a change.

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.

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.

Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.

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.

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.

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.

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.

Our constitution was designed to be predictable, --- laws made in its name are not necessarily so. -- Better liberty than predictability.

Or, conversely, both hate speech and flag burning should be allowed. Your choice.

You so nice, mristerwite-san.

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.

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

Detention and Trial of Foreign Nationals Apprehended in the War on Terrorism

[...]

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)

Half liar, half imbecile.

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 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.

You are a fucking idiot.

Article III does not begin and end with your pull quote.

Article III

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

United States bankruptcy courts are courts created under Article I of the United States Constitution.

28 U.S.C. § 152

Each bankruptcy judge shall be appointed for a term of fourteen years, subject to the provisions of subsection (e).

- - - - - - - - - -

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.

An invitation is not a requirement, Shit-For-Brains. The Court would be free to refuse.

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.

LETTER FROM CHIEF JUSTICE JOHN JAY AND THE ASSOCIATE JUSTICES OF THE U.S. SUPREME COURT TO PRESIDENT WASHINGTON

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 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.

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.

Then Congress would be free to deny appellate jurisdiction, per its explicit constitutional power.

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:

(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.

Plaut at 219:

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.

Plaut at 221-222:

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-

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:

"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 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:

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

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.

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.

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.

Erwin Chemerinsky, Constitutional Law, Third Edition, Aspen Publishers, 2009, p. 42:

a. Prohibition of Advisory Opinions

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:

NOTES ON ADVISORY OPINIONS

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

HISTORY OF CONGRESS.

[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,
JOHN BLAIR,
RICHARD PETERS.

[...]

And in case it still did not penetrate your extraordinarily thick skull, there is the following:

U.S. Supreme Court

Flast v. Cohen, 392 U.S. 83 (1968)

[...]

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

[...]

And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay).

[...]

The Court quoted Charles Alan Wright, Federal Courts 34 (1963).

Footnote 14 of Flast reads:

The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein.

In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said:

The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions."

We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423.

"The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)]

"From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)]

"As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)]

"This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)]

"Congress thought it could? It didn't get out of committee."

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.

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.

Clearly, you are very confused about legal things.

SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.

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.

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.

Once the Supreme Court has decided that something is unconstitutional, their opinion prevails over all others.

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.

Bankruptcy court judges are appointed to 14-year terms.

What a pathetic cut and paste data dump, with not one factoid on point.

You got your ass handed to you, Shit-For-Brains

"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.

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.

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

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.

SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.

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.

So your conclusion is that it didn't get out of committee because it was unconstitutional?

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.

"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."

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.

"The SCOTUS opinion interpreting the Constitution is binding."

Because SCOTUS said so in Marbury v Madison (1803). The U.S. Constitution does not give them that power. The court seized it and the people were content to leave it at that.

But in the last 75 years, starting with "selective incorporation", every single controversial issue we have today is the result of judicial activism. The court is out of control, acting against the will of the majority, and is deciding issues that should be decided by Congress.

Which is why action is required.

"No, your claim of Congress thinking they could legally enact your unconstitutional legislation cannot be shown ..."

Sure it can. That fact that they attempted it showed they thought they could do it. And it did pass the House.

It died in a Senate committee for unknown reasons. My guess is that they were gutless and chickened out.

But you have zero proof otherwise. To conclude it failed because it was unconstitutional is folly.

Yes, but after he strips their jurisdiction on some high-profile issue. Say, "Under God" in the Pledge of Allegiance.

That would be a wonderful shot across the bow.

"That would be a wonderful shot across the bow."

I prefer 'brilliant' but I'll settle for wonderful.

It's an old, harmless case that dealt with forcing students to say the Pledge of Allegiance containing the phrase "under God". And no, it wasn't the "forcing" part that presented a problem to the 9th Circuit.

Removing judicial review would simply leave "under God" in the Pledge. Anything else is left to the school.

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, or to issue opinions 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.

And if it's decisions are repugnant to The constitution, they are null and void. - -- In any case, they do not change the Constitution, as even poor roschump agrees in #231.

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.

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.

Nope, not binding, as the other branches and the people can ignore such interpretations, and/or, as you admit, amend the Constitution. ---- Even the dimwitted robertpausen agrees that The U.S. Constitution does not give them that power.

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.

Only enforceable if the other branches agree to enforce. Get real...

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.

Only if the other branches agree with the Court.

-- Thanks for making your stupid circular argument, as you've made even the other chumps here realize how wrongheaded you think.

nc #225

And in case it still did not penetrate your extraordinarily thick skull, there is the following:

U.S. Supreme Court

Flast v. Cohen, 392 U.S. 83 (1968)

[...]

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

[...]

And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay).

[...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963).

Footnote 14 of Flast reads:

The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein.

In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said:

The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions."

We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423.

"The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)]

"From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)]

"This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)]

[Shithead Roscoe] The invitation has NOTHING to do with how the Court would rule on a matter should adversary litigation develop.

Another swing and a miss, Shit-For-Brains.

What an ignorant shithead. And what a weak response.

The federal courts have refused to issue an advisory opinion since first asked for one in 1790.

It seems my memory of Secretary Alexander Hamilton seeking an advisory opinion and being rebuffed by Chief Justice John Jay was not misplaced after all. Hamilton's effort was in 1790 and Jefferson's effort was in 1793.

Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77:

Advisory Opinions

The case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to as­sume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must ei­ther be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, not­ing that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments.

Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress.

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Randy E. Barnett, Constitutional Law, Aspen Publishers 2008, pp. 887-88:

Perhaps the earliest such limitation was the refusal of the Supreme Court to issue "advisory opinions" to the other branches in advance of a case or controversy. In 1792, the very first Congress enacted a statutory scheme by which U.S. circuit court judges—who were then also Supreme Court Justices—were to consider the pension claims of Revolutionary War veterans and inform the secretary of war of the nature of the claimant's disability and the amount to be paid. The secretary had the discretion to follow the court's recommendation or not. All five Supreme Court Justices— Wilson, Blair, Cushing, Iredell and Chief Justice Jay—sitting as circuit court judges in New York, Pennsylvania, and North Carolina expressed their opi­nions that this scheme was unconstitutional. Here is how the Pennsylvania panel explained its objections:

1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States; the circuit court must, consequently, have proceeded without constitutional authority.

2d. Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legis­lature, and by an officer in the executive department. Such revision and control we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and consequently, with that important principle which is so strictly observed by the constitution of the United States.

In response to these objections, Congress modified its pension scheme to eliminate this role of the judiciary.

That is not an advisory opinion. It is an explanation of why the court refused to be used to participate in an unconstitutional scheme developed by the legislative branch.

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Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1:

advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.

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SCOTUS does not make laws. It decides cases, and issues opinions which are its decisions.

[Shithead Roscoe] 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.

I didn't think anyone could be this fucking stupid and want to document it for the whole world to see.

Whether it is given in writing, or read from the bench, the opinions of the court are its decisions, shithead.

Black's Law Dictionary, 6th Ed.

Opinion.

The statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based.

See also, Hayburn's Case, 2 U.S. 409, 411 (1792)

“2d. Because if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controlled by the legislature, and by an officer in the executive department.

Black's Law Dictionary, 6th Ed.

Judgment. The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties.

The opinion of the court includes the decision or judgment and sets forth the reasoning for said decision/judgment.

However, opinions frequently contain advisory opinions in the form of dicta.

No, dumbshit.

Otis H. Stephens, Jr. and John M. Scheb II, American Constitutional Law, 5th Ed., Vol. 1, Appendix D, Glossary of terms, p. D-1:

advisory opinion. A judicial opinion, not involving adverse parties in a "case or controversy," that is given at the request of the legislature or the executive. It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.

Court opinions are only rendered when they involve a case or controversy. By definition, a dictum in a court opinion cannot be an advisory opinion.

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.

The Court, innocently saying fuck you since 1790.

Louis Fisher and Katy J. Harriger, American Constitutional Law, 10th Ed., Vol 1, Constitutional Structures, Separated Powers and Federalism, Carolina Adademic Press, 2013, p. 77:

Advisory Opinions

The case or controversy requirement was tested in 1790 when Secretary of the Treasury Alexander Hamilton sought the advice of Chief Justice John Jay about a pending legal issue. Resolutions adopted by the Virginia House of Representatives had challenged the right of the national government to as­sume state debts. Hamilton regarded this resistance as "the first symptom of a spirit which must ei­ther be killed or it will kill the Constitution of the United States" and urged that the "collective weight" of the three branches be employed to repudiate the resolutions. Jay replied that it was inadvisable for the Court to join such action. 1 Charles Warren, Supreme Court in United States History 52-53 (1937). Similar efforts by Secretary of State Thomas Jefferson in 1793 to obtain advisory opinions were rebuffed by the Court. The Justices considered it improper to make extrajudicial decisions, not­ing that the Constitution gives the President the express power to obtain opinions from the heads of the executive departments.

Louis Fisher served as Senior Specialist in Separation of Powers for the Congressional Research Service of the Library of Congress.

The SCOTUS opinion interpreting the Constitution is binding."

Because SCOTUS said so in Marbury v Madison (1803). The U.S. Constitution does not give them that power. The court seized it and the people were content to leave it at that.

Unfortunately for you, Marbury v. Madison remains good law two centuries after it was handed down. You are entitled to your own opinion. According to law, your opinion is just bullshit contrary to law, and if argued by an attorney in court today, will draw Rule 11 sanctions.

You would have to argue it yourself or find someone with a law license who wants to be fined or disbarred.

The court is out of control, acting against the will of the majority....

There's your problem, right there. The court is not there to enforce the will of the majority against the constitutional rights of the minority.

That fact that they attempted it showed they thought they could do it. And it did pass the House.

There are two houses to Congress. The fact that some in the House supported something does not express the approval of CONGRESS. You are missing the Senate where it did not get out of committee.

It died in a Senate committee for unknown reasons. My guess is that they were gutless and chickened out.

As you say, unknown reasons.

As it was demonstrably unconstitutional on its face, there is better reason believe that had something to do with its permanent interment in a deep grave, than that the Senate was gutless then, and has apparently been gutless ever since.

Legislation that seeks to limit access to, or enjoyment of, any constitution right of the people has been ruled an infringement of the Constitution. That even applies to alien detainees in Guantanamo.

In enacting the Military Commissions Act of 2006 (MCA), it was not doubted that, on its face, see Boumediene v. Bush, 553 U.S. 723 (2008), the MCA withdrew jurisdiction. I cited Boumediene (as well as Hamdan) last time at #222 on this thread, but it appears it requires force feeding regarding the futility of enacting an unconstitutional law withdrawing jurisdiction. Been there, done that. It does not work.

At 553 U.S. 724:

MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment.

In your Twilight Zone version of the law, that makes it a slam dunk for the government. But then, you ignore the holding of the U.S. Supreme Court.

The Court stated,

As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.

And the Court held,

Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.

As the law, MCA § 7, withdrawing jurisdiction was unconstitutional, the Court held it had no effect and that there was no bar to jurisdiction.

https://supreme.justia.com/cases/federal/us/553/723/

SYLLABUS
OCTOBER TERM, 2007
BOUMEDIENE V. BUSH

SUPREME COURT OF THE UNITED STATES

BOUMEDIENE et al. v. BUSH, PRESIDENT OF THE UNITED STATES, et al.

certiorari to the united states court of appeals for the district of columbia circuit

No. 06–1195. Argued December 5, 2007—Decided June 12, 2008*

In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those … he determines planned, authorized, committed, or aided the terrorist attacks … on September 11, 2001.” In Hamdi v. Rumsfeld, 542 U. S. 507, 518, 588–589, five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U. S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.”

Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by CSRTs. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a writ of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign U. S. territory. The D. C. Circuit affirmed, but this Court reversed, holding that 28 U. S. C. §2241 extended statutory habeas jurisdiction to Guantanamo. See Rasul v. Bush, 542 U. S. 466, 473. Petitioners’ cases were then consolidated into two proceedings. In the first, the district judge granted the Government’s motion to dismiss, holding that the detainees had no rights that could be vindicated in a habeas action. In the second, the judge held that the detainees had due process rights.

While appeals were pending, Congress passed the Detainee Treatment Act of 2005 (DTA), §1005(e) of which amended 28 U. S. C. §2241 to provide that “no court, justice, or judge shall have jurisdiction to … consider … an application for … habeas corpus filed by or on behalf of an alien detained … at Guantanamo,” and gave the D. C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions. In Hamdan v. Rumsfeld, 548 U. S. 557, 576–577, the Court held this provision inapplicable to cases (like petitioners’) pending when the DTA was enacted. Congress responded with the Military Commissions Act of 2006 (MCA), §7(a) of which amended §2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while §2241(e)(2) denies jurisdiction as to “any other action against the United States … relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA §7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date … which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained … since September 11, 2001.”

The D. C. Court of Appeals concluded that MCA §7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners’ habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U. S. Const., Art. I, §9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas.

Held:

1. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition, “relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a §2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases must be dismissed. Pp. 5–8.

2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo. Pp. 8–41.

[...]

(c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.

[...]

(d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining petitioners’ claims. Pp. 57–64.

[...]

4. Nor are there prudential barriers to habeas review. Pp. 64–70.

(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas petition at least until after the CSRT has had a chance to review his status. Pp. 64–67.

(b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68.

[...]

5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. Pp. 68–70.

476 F. 3d 981, reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Souter, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined.

- - - - - - - - - - - - - - - - - - - -

The Court quoted from the Military Commissions Act of 206 at 736-37:

As a threshold matter, we must decide whether MCA § 7 denies the federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment. We hold the statute does deny that jurisdiction, so that, if the statute is valid, petitioners’ cases must be dismissed.

As amended by the terms of the MCA, 28 U. S. C. § 2241(e) now provides:

(1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

(2) Except as provided in [§§ 1005(e)(2) and (e)(3) of the DTA] no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

Section 7(b) of the MCA provides the effective date for the amendment of § 2241(e). It states:

The amendment made by [MCA § 7(a)] shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.” 120 Stat. 2636.

Nope, not binding, as the other branches and the people can ignore such interpretations...

Only enforceable if the other branches agree to enforce. Get real...

Only if the other branches agree with the Court.

To demonstrate the idiocy of your bullshit, it presupposes that all three branches of government have agreed with legal abortion, same-sex marriage, and flag burning since the applicable court rulings. You are an idiot.

And that is not to mention the 50 states which you left out. For some reason or other, they all agree to allow abortion and same-sex marriage and flag burning.

Your bullshit supposes that if the other branches of government choose to ignore or violate the law, this means that Judicial branch is devoid of judicial authority. It only demonstrates what an asshole you are.

Drug possession, use, or distribution is unlawful in all 50 states, and is a federal crime in all 50 states, even when the Executive branch chooses to ignore the violations of federal law.

Illegal immigration remains illegal, even when the Executive chooses not to enforce the law.

As an early Christmas present, I will gift you the historical court opinion which is cited as the best challenge ever against Marbury v. Madison. I do this act of charity because I know you could never find it on your own, not that you would make the effort. It will surely give you wet dreams.

https://www.scribd.com/document/334221718/Eakin-v-Raub-12-Serg-Rawle-330-16-Apr-1825-Opinion-of-GIBSON-J-Agst-Marbury-v-Madison

- - - - - - - - - -

And if it's decisions are repugnant to The constitution, they are null and void.

In the case of legislation, the judiciary is empowered by the constitution to declare the legislation unconstitutional. In the case of judicial decisions, apparently the person who decides them to be unconstitutional is tpaine.

If the U.S. Supreme Court interprets seme-sex marriage to be constitutionally protected, and you disagree, you can go to your window and scream that the decision is unconstitutional. Do it now. See if anything changes.

Hell, for that matter, Congress can pass a law that says same-sex marriage is illegal, and the President can sign it. And you can go to your window and shout that out. See if anythig changes.

Just as with your absurd assertion that an amendment to the Constitution can be struck down as unconstitutional, you must have a Deemer hidden somewhere to deem a SCOTUS opinion unconstitutional.

It has been a long-standing policy of the U.S. Supreme Court not to render advisory opinions.

"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." Harvard Law Review: Volume 124, Number 8 - June 2011

Time for you to run away again, SFB.

Thus, the implicit policies embodied in Article III

Punubral emanations? Figures. Your kind always conflates policy and law, SFB.

Congress has an EXPLICIT right to to strip the Court of appellate jursidiction over Constitutional rationalizations for assuming legislative powers, SFB. And I explicitly noted before, the Court may decline to offer any justifications for waiver requests. You're terrified of engaging the actual arguments.

The Court, innocently saying fuck you since 1790.

Time for you to gibber and scamper. Again. "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." Harvard Law Review: Volume 124, Number 8 - June 2011

And Congress can say fuck you, based on explicit Constitutional powers, SFB.

Marbury v. Madison remains good law two centuries after it was handed down.

Policy, not law. Or did you forget that you announced that the Court can't make law? And that opinions were decisions? [snigger]

Congress may void judicial review at will, by law, SFB

As it was demonstrably unconstitutional on its face

Question begging. Natch. SFB.

I prefer 'brilliant' but I'll settle for wonderful.

Brilliant.

"The court is not there to enforce the will of the majority against the constitutional rights of the minority."

They're not supposed to, no. But how many examples do you want of the U.S. Supreme Court making political, rather than constitutional, decisions?

You've got Roe v Wade for starters. Kelo. Obamacare. All Establishment Clause cases (creches, "under God", prayer in schools, display of the Ten Commandments").

In the case of legislation, the judiciary is empowered by the constitution to declare the legislation unconstitutional.

Indeed they are, but, --- if the other Fed branches, or the State/local govts disagree, -- they are free to dispute that opinion, --- and to ignore it until resolved.

Scotus decisions/opinions are not law.

If the U.S. Supreme Court interprets seme-sex marriage to be constitutionally protected, and you disagree, you can go to your window and scream that the decision is unconstitutional. Do it now. See if anything changes. Hell, for that matter, Congress can pass a law that says same-sex marriage is illegal, and the President can sign it. And you can go to your window and shout that out. See if anythig changes. Just as with your absurd assertion that an amendment to the Constitution can be struck down as unconstitutional, you must have a Deemer hidden somewhere to deem a SCOTUS opinion unconstitutional.

Isn't it strange that YOU deem it absurd that an amendment can be struck down as unconstitutional, --- yet you shout out that ALL Scotus opinions are constitutional?

The fact is; -- Scotus decisions/opinions are not law.

I merely suggested that Trump act to strip their jurisdiction on an issue. Then ask their opinion on upcoming legislation.

Indeed they are, but, --- if the other Fed branches, or the State/local govts disagree, -- they are free to dispute that opinion, --- and to ignore it until resolved.

I don't say this often, but good point. Ex parte Merryman.

Then ask their opinion on upcoming legislation.

Yep, and Congress wouldn't need their opinion.

"Yep, and Congress wouldn't need their opinion."

Congress would not have to heed their opinion, no. But imagine if the opinion of the U.S. Supreme Court had been obtained on Obamacare before the vote.

The penalty is really a tax. And states need not set up an exchange to be eligible for subsidies.

Well, maybe it would have passed anyways. But at least Congress' fingerprints would have been on the real law, not some bullshit verbiage.

The penalty is really a tax. And states need not set up an exchange to be eligible for subsidies.

And not unconditionally giving money to state Medicaid programs is "economic dragooning."

"And not unconditionally giving money to state Medicaid programs is "economic dragooning."

Yeah. What you said.

Yeah. What you said.

Hey, Roberts invented the term, not me!

"And not unconditionally giving money to state Medicaid programs"

Wasn't it something like 80% of new Obamacare enrollees consisted of those signing up under the expanded Medicaid eligibility?

Wasn't it something like 80% of new Obamacare enrollees consisted of those signing up under the expanded Medicaid eligibility?

Something like 15 million additional people on Medicaid since Obamacare's first open enrollment.

"Hey, Roberts invented the term, not me!"

Hmmmm. Is there any difference between "economic dragooning" and an unfunded federal mandate?

I mean, other than the constitutionality.

"Something like 15 million additional people on Medicaid since Obamacare's first open enrollment."

But ... but ... that's almost ALL the new enrollees. Couldn't we simply have passed a law expanding Medicaid without revamping our entire health insurance industry?

Couldn't we simply have passed a law expanding Medicaid without revamping our entire health insurance industry?

Where's the fun in that?