You advocate the open and direct violation of current law (state and federal) based on your own myopic (and in my opinion, fundamentally misguided) view of the constitution. That, sir, is an advocation for anarchy.
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England now believes it's a
- Thread starter scartiger
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"Current law" (bureaucratic law state or federal) IS a direct violation of the Constitution! How is advocating Constitutional Law the same as advocating anarchy? Do you even know what anarchy is? Google it for God sake.
an·ar·chy
ˈanərkē/
noun
noun: anarchy
- a state of disorder due to absence or non-recognition of authority.
The Constitution is supposed to be our authority, i.e. what I want, what I am advocating for. In no possible scenario are they related but yet you are comparing the two as if they are? Really? Or, are you just tired of this conversation and trying to get me disgruntled and just move on? Say the word, I've enjoyed it, but just don't make stuff up. I was trying to be funny (I'll admit, it didn't work) with "piece out", but this is just silly.
Not trying to be silly at all. It seems that the entire discussion can be resolved by simply asking you what is constitutional and what is not ... and 200 years of legal analysis on the matter by some of the greatest minds in human history is simply irrelevant because you read the constitution. I think that sums it up. Glad I know where the "all knowing" is if I ever need advise.
My point all along is you DON'T have to ask me, you just read what is there, what the States all agreed is there, not freaking Blythewood Tigers! I'm not the one agreeing with laws that don't exist in the Constitution, that's you. If you ask me if the POTUS can declare preemptive war, I say no, I can't point to any Article stating this as fact. Article I clearly states that this power is reserved in the Legislative Branch, just for a second, if you thought you were right, wouldn't you make me aware otherwise in Article II? No, you go on some rant(s) that is NOT in the Constitution.
If you ask me if a Supreme Court judge can interpret the Constitution, I say no, I can't point to anywhere in Article III, all 3 Sections, stating this as fact. And for me to sum it up, neither have you, you can't point to it either. So through all of your so-called "200 years of legal analysis", they can't either! You know why? Because it doesn't exist. So your right, if you need advise on real sh*t let know, otherwise convince someone else of all the pretend stuff.
You seem to be confused about the fact that not all laws are in the constitution. The internal revenue code is thicker than my forearm is long, and none of that is in the constitution. It does not have to be, it just has to be constitutional. That is, it can't conflict with the constitution, but otherwise, the legislature can make law and the judiciary interprets it and determines if its constitutional.
So now I understand. You thought that all laws had to be in the constitution. Sorry to disappoint you, but that's not the case. The constitution just sets the framework for other laws. You just need to keep reading. You will figure it out one day.
Sweet Jesus! There is just no hope, it's like I am typing to someone with some form of dementia. We discuss a topic and then a statement is made as if there was no discussion. On top of that, now you want to deflect off to the IRS!
The first major deflection was off of the executive to the Judicial, now its the freaking IRS for God sake!
The ORIGINAL discussion was preemptive war. Do you remember that? Let's settle that discussion once and for all and then we can settle the Judicial, IRS or whatever else your little heart desires. Now, you take as long as you need, so we all make sure we cross our t's and dot our i's. In the Constitution, you know, the real little book smaller than your forearm is long, tell me where I need to look and find the law that says the executive has authority for declaring war.
Because you know, I just kept reading and reading, as you say, and my little book must be different from yours. Help me figure it out TODAY. Thanks.
You really are mentally challenged. You never mentioned preemptive war until I clearly showed you that the president has the right to take military action without a declaration of war. You admitted you did not see the difference. You also said that the president's actions violated international law. I laughed at that and am still laughing since there is no such international law that the US is subject to. You then started with preemptive war a few posts ago so that it fits within your war powers view of the constitution. I've looked through the constitution and I can't find preemptive war anywhere, I guess I'm just missing it.
The reality is that you are making up terms to satisfy your own agenda. There is no such thing as a "preemptive war." You just want to label it as war in order to state that its unconstitutional.
As determined by the Supreme Court as early as 1869, the president has the power to take military action in defense of the country. This is consistent with his authority of executive order under the constitution in addition to supporting authority granted by the legislature that has been determined to be constitutional by the Supreme Court and/or not yet challenged to be unconstitutional.
You want to create the word "preemptive war," but the reality is that congress does not have the authority to declare war against Muslim Ialsmic extremist since that is neither a foreign country nor an alliance or power of foreign countries. Wars are fought between countries, not between a country and a militant religious ideology. Regardless of what it is called "war," "crisis," "conflict," or "preemptive war" it does not meet the definition of "declaration of war" under the constitution. It is defensive military action that's permissible under the Constitution. And the Supreme Court has determined that the president not only has authority for this, but an obligation.
Your initial premise that this was going to come to a crashing halt because it was illegal under the constitution and international law. I've diligently tried to shoe you that it's illegal under neither. That could be changed, but it would take a challenge by you and like minded individuals with the ultimate decision being made by the Supreme Court, if the appeals got that far.
Call me a nationalist if you want (I'm not), I simply wanted to show you that the president's action in the fight against terrorism are not illegal and will likely continue. Nothing within the us legal system or it handling of foreign affairs is comming crashing down anytime soon.
The reality is that you are making up terms to satisfy your own agenda. There is no such thing as a "preemptive war." You just want to label it as war in order to state that its unconstitutional.
As determined by the Supreme Court as early as 1869, the president has the power to take military action in defense of the country. This is consistent with his authority of executive order under the constitution in addition to supporting authority granted by the legislature that has been determined to be constitutional by the Supreme Court and/or not yet challenged to be unconstitutional.
You want to create the word "preemptive war," but the reality is that congress does not have the authority to declare war against Muslim Ialsmic extremist since that is neither a foreign country nor an alliance or power of foreign countries. Wars are fought between countries, not between a country and a militant religious ideology. Regardless of what it is called "war," "crisis," "conflict," or "preemptive war" it does not meet the definition of "declaration of war" under the constitution. It is defensive military action that's permissible under the Constitution. And the Supreme Court has determined that the president not only has authority for this, but an obligation.
Your initial premise that this was going to come to a crashing halt because it was illegal under the constitution and international law. I've diligently tried to shoe you that it's illegal under neither. That could be changed, but it would take a challenge by you and like minded individuals with the ultimate decision being made by the Supreme Court, if the appeals got that far.
Call me a nationalist if you want (I'm not), I simply wanted to show you that the president's action in the fight against terrorism are not illegal and will likely continue. Nothing within the us legal system or it handling of foreign affairs is comming crashing down anytime soon.
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Give your deflection campaign a rest my friend, my very FIRST reply to you on May 24th clearly stated preemptive war. I'll quote it for your dementia mind, "The narrative ITT is preemptive war! Not one person has made or even insinuated that this is ILLEGAL"
You can't find preemptive war in the Constitution because it does NOT exist, for the one hundredth time, sheesh, Pavlov had better success training dogs for Heaven sake!
Good God, for the hundredth time AGAIN! The POTUS can take defensive action, you have got to be kidding me, you have repeated this like 4 or 5 times now. Look, when you finally admitted, "I've looked through the constitution and I can't find preemptive war anywhere, I guess I'm just missing it", that's basically all I wanted from you. You can keep babbling and repeating on if you want, I got what I came for, peace out!
Great. I suggest you read, learn and educate yourself about the constitution and our three branches of government. You will feel better about yourself and so will others that have to converse with you. I seriously hope you are not a Clemson grad. parcel out.
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"I've looked through the constitution and I can't find preemptive war anywhere, I guess I'm just missing it"
Uh-oh, looks like someone needs to take a hard look into the mirror concerning education. I am not the one admitting failure. Or, like you said, you can "just keep reading" and maybe you can bounce back. By the way, that was very good advice for yourself!
Whenever you are ready to start with the next subject, Judicial, IRS, etc.. you just let me know. I am looking forward to the admission(s) of failure with those as well.
Look, it's pretty clear you don't have a college education (or if you do it's a poor one) and you are bitter about others who do. I have some advise for you: sometimes is best to just remain silent and be thought of as a fool than to speak up and remove all doubt."I've looked through the constitution and I can't find preemptive war anywhere, I guess I'm just missing it"
Uh-oh, looks like someone needs to take a hard look into the mirror concerning education. I am not the one admitting failure. Or, like you said, you can "just keep reading" and maybe you can bounce back. By the way, that was very good advice for yourself!
Whenever you are ready to start with the next subject, Judicial, IRS, etc.. you just let me know. I am looking forward to the admission(s) of failure with those as well.
Guys like you are a dime a dozen. Failure causes you to lash out and question someone's credentials, that's okay, I've got thick skin. You really need to man-up and take them as they come because the sooner you stop acting like a punk and grow some the better. You don't know sh*t about me but presume to, what a excellent quality of character. In the college educated circles, that previous statement is what's called "sarcasm".
Now stop whining and lets move on to the next subject!
I was on the verge of ignoring you, but I've got some time, so I'll give it another shot. I've tried to be reasonable with you. I really have, but you have to admit, you are pretty insufferable.
First, my opinion as to your credentials is not based on your responses, but instead is based on your singleminded view and your inability to objectively consider the opinion of others. To me, that's a signal of exactly what you are accusing me of, an underachiever and also someone who has not been exposed to other views. Sorry if I'm incorrect about that but that's how I based my opinion. Now before you start saying that's the pot calling the kettle black, I believe I'm very open minded. However, given your response, which is basically "I'm right and, therefore, everyone else is wrong or are sheep," just doesn't cut it. Again, im trying very hard not to antagonize you and to be objective, but most of your resposes are those I should be sending you. That is, the continuing use of the same argument or the failure to provide evidence of your position other than your interpretation of the constitution. I Just wish you could give me one case on point supporting your position on the constitution or international law (sorry had to throw that zinger in there; I'll behave from now on), so I could say "yea, that's a good point." Anyway, that's what you are hearing from me.
As to your question, do you want to discuss the first amendment or, possibly, the commerce clause?
With regard to the first amendment, I want to make sure you understand that there is a test promulgated by the Supreme Court that is used to determine if restrictions on protected public speech/communication is constitutional. I assume you disagree with th Supreme Court on this, so what's your alternative? Tell me how you would determine if certain speech is constitutionally protected and, if so, what permissible restrictions can be placed on that speech.
With regard to the commerce clause, do you believe its extremely expanded interpretation under current law is consistent with the constitution, and even if you don't agree, has its application been good or bad for the union? Explain.
Take your pick or answer both. I'll sit back and wait for your response. Take several days if you'd like, I'm in no hurry. I truly am interested in your opinion.
You wanted to ignore me, I'm insufferable, singleminded, but yet you are interested in my opinion. Obviously this all makes me a little skeptical, are you performing some form of reverse psychology with me now? Just curious.
Seriously?
I was going to ignore you because you are insufferable but, as I stated, I decided to give it one more try. I enjoy the banter and I'm truly interested in your opinion on these subjects. That does not mean that I won't attempt to show the flaws in your logic regarding constitutional interpretation.
I don't want to hide anything from you and no it's not any form of reverse psychology (I'm not even sure how that would apply here). My hope/intent is to show you that the constitution is a "living breathing" document that is not stuck in the technology, moral or religious beliefs of the 1700s. By expanding our discussion to the commerce clause and the first amendment, I think I will be able to do that. If you don't want to participate, that's fine; but remember, you asked.
Okay, you are right, I did ask, I just thought it was a little strange I was hit with criticism and then you wanted to discuss again.
First, let me start off by putting my other foot forward this time and make something very clear, so you don't suggest otherwise again. In all seriousness, I Love this country, I Love everything it was founded upon and the government that was created. Even though I have never served in any branch of the military, in a heartbeat, to the best of my ability, I would defend what I Love. I wanted to make that clear so you don't insinuate I am some part of a lunatic fringe or "anti-government" cult.
So, as our discussion has evolved, your mindset is in a very common position vs. society today. Hence, the reason I specifically kept replying to you. When you make the statement, "living breathing", IMO, this is what I would define as the root of your problem. Again, just my opinion. The reason I have this opinion is because this type of mindset "inserts" progressivism into the Constitution. In other words, this ideal is to change, modify or "interpret" the Constitution to match the circumstance, event, emergency, etc. at hand.
The clause you happened to choose is one of the most controversial clauses simply because it affords what I just describe above, i.e. it can be easily "interpreted" to meet the occasion at that particular time. The original intention of the commerce clause was to regulate navigation, more specifically marine navigation. But, for example, it has been used in modern government as a precedent for Healthcare Acts. The 1798 Act for the Relief of Sick and disabled Seamen supposedly was the first version of "healthcare", but if you examine the purpose/intention of this Act, you will notice it was self-funding and NOT the same as Healthcare today which is a tax.
What is your take on the commerce clause per the Constitution? We can do the First Amendment later, I like to focus on one thing at a time.
Hmm. Fist, Let me tell you a little of my background. Regardless of what you may think, I am an attorney. My background is tax and employee benefits. I've worked for a large international insurance company handling benefits and employment matters and I'm currently a partner in a law firm.
A substantial portion of my practice involves benefits and health care issues, so I'm very familiar with the ACA and what is likely to happen in the future. I was also very aware the constitutional issues addressed and have given speeches on the subject both before and after it passed constitutional scrutiny. So, I know a little about this subject. I also know the commerce clause is controversial. That's why I chose it. Maybe you've heard the axiom "congress can make you buy broccoli under the commerce clause." I also picked the commerce clause because I thought we might find some common ground sine I believe the liberal interpretation of the Supreme Court over the last 65 years has gotten out of hand. I still believe it's the law, but I'd like to see the law changed to a more conservative interpretation ... and that just very well may have happened under health reform.
Anyway, so back to healthcare reform. Technically, congress and the Obama administration lost its argument that the ACA is permissible governmental action under the commerce clause. The commerce clause is in Article I, Section 8, Clause 3. It states that the US Congress "shall have power to regulate commerce with foreign nations, among the several states and with Indian tribes." The ability to regulate interstate commerce comes from the ability to regulate commerce among the several states.
As you know the ACA required citizens to purchase health care or pay a fine. In the Supreme Court opinion, Justice Roberts found on behalf of the majority that the ACA was imposing the penalty for inaction not action (i.e, You only get penalized if yo don't buy healthcare). The majority opinion found this critical since the commerce clause only permits the regulation of commerce and, therefore, you have to have some commerce to regulate it to begin with. Since the ACA only regulates the failure to take action, there is no commerce being regulated. Thus, the ACA was found NOT to be constitutional under the commerce clause. Unfortunately, the majority opinion then said the penalty is actually akin to a tax (similar to penalties for failure to file taxes, register vehicles etc) and that the power to tax and penalize is clearly permissible under congress' taxing authority under the constitution.
So, I don't believe (and don't agree with you if you believe) that current health care reform is constitutional or interpreted as constitutional under the commerce clause. It's not. In fact the Supreme Court ACA decision is a landmark case in limiting the power of congress in using the commerce clause. No longer can the commerce clause be used to force a state or individual to take certain action if it or the individual has not participated in commerce. It can be used to regulate trade or interaction, but it can't be used to force individual action from inaction. In summary the commerce clause requires some form of commerce before it can be regulated. I do expect significant challenges of congressional authority under commerce clause as a result of this case. Basically it's redefined the definition of commerce (which is not defined under the constitution) from everything to something less than everything.
As far as the commerce clause being limited to maritime matters, I don't see it. From the beginning the clause has allowed congress to regulate commerce between other nations, the states and Indian tribes. I doubt Indian tribes had much to do with maritime trade. In any event it certainly was not limited by writing to any form of maritime trade.
From what you have written, it does in fact appear as though we are more inline with the commerce clause.
As I'm sure you are aware of, after ratification, the US was an orgy of free enterprise, or as some would define, free markets. The framers knew this would be the outcome with the commerce clause essentially guaranteeing free markets with foreign States and across State lines here in the US, with no strings (no taxes) attached, I.e businesses had more incentive due to larger profits from an inherently larger market.
As for the ACA, this has nothing to do with the commerce clause and is completely unconstitutional. As time has passed, progressive, expansive government has attempted to "hijack" the commerce clause and use various interpretations to basically regulate ALL business, manufacturing and obviously any form of transportation amongst other things. The "New Deal" was the inception of this infectious ideal that "ALL gainful activities" were under the scope of the commerce clause.
More recently, it boils down (interpreted) to any person interacting with another person. So in other words, the government believes the commerce clause is defined as basically "regulating" your life.
The historical context for the word "commerce" in the Constitution simply meant trade and the associated activities that go along with it and the focus at that time was in fact navigation for maritime trade. The trade activities were also supposed to be mainly regulated by the States and NOT the federal government. As we are witness today, it is only getting worse.
I'm not sure what the overall point you are trying to make here, but I'll comment on some specifics.
First, the ACA decision has a lot to do with the commerce clause. That decision will likely have the most effect on the commerce clause since the new deal. The Supreme Court found that the action of congress overstepped its authority under the commerce clause (i.e. It violated the commerce clause) and more narrowly defined commerce. This is probably the most important commerce clause case in 50 years.
Second, as much as I didn't like the ACA, it's passing is constitutional. The Supreme Court found it to be a tax. You even said it was a tax yourself. Article I, Section 6 of the constitution specifically provides that congress may "collect taxes, duties and excises" "in order to provide for the common defense and general welfare of the citizens of the United States. It's a tax and, as such, is constitutional under congress' taxing authority.
Finally, there is no definition of commerce in the constitution. There is also no requirement that its definition be defined by commentary or dictum made in the 1700s, the 1800s or even the 1950s. It is defined as interpreted by the Supreme Court and the most recent definition has significantly cut back (not expanded) congressional power under the constitution. One reason why I questioned your opinion on the commerce clause was your position that federalism and my belief that the constitution is a living and breathing document always causes the expansion of federal regulations. In fact the opposite is the case with the ACA decision. That decision has significantly reduced federal authority under the commerce clause.
I think we would both agree that the ACA would be defined as a "service". As much as you would like to think it's passing is constitutional, I could never agree with this opinion. Simply because your premise is based on the government FORCING (by virtue of an illegal tax) you to enroll. This is almost the equivalent of Social Security, whereas with S.S. you don't even have a choice, the government enrolls you for yourself, i.e. when you are born and taxes you with every pay check you receive for the rest of your life. S.S. is also an illegal tax per the Constitution, there is no mention of such a Ponzi scheme anywhere in it. Just as S.S. is not funded, the ACA would not be funded over time, Ponzi schemes require more "new" input to service the output.
Our government, Constitutionally, can't force citizens to pay for services or products they either do not want or don't need. The beauty of the original intent of the commerce clause was to allow MORE free choice, not "choice" by FORCE. Where this conversation really gets weird, is when you say it's legal because Congress has the authority to tax. It is true, Congress does have taxing authority as clearly stated in the Constitution, but this example (ACA) is putting the cart before the horse.
How can you defend the idea that our government does not have authority to make you enroll in a government sponsored service, but then in the same breath, also defend it simply because of Congresses taxing authority? The tax would come AFTER the Constitutionally illegal failed enrollment. If you still continue to agree with this ideal, think about the precedent you are setting. This could literally be translated into virtually ANY government "sponsored" service you could imagine, obviously health, food, housing, medical even manufacturing, i.e. if you don't buy a certain car that gets 40mpg you will get a tax, a gas guzzler tax! A gas guzzler tax already exists. This is where the commerce clause has gone.
You are right, the commerce clause and its relationship specifically with ACA has decreased in scope. But make no mistake, in every other aspect of our everyday life it has gained more traction over time.
Wow. So much confusion in this response. The ACA decision limits exactly what you are saying is not limited under the commerce clause. That's the point, the Federal Government CANNOT force you to buy a car that gets 40mpg or get taxed under the commerce clause. This is what makes Roberts decision so important.
Now can congress tax an individual for not buying a car that gets 40mpg under its taxing authority? The answer is maybe. Such a tax would have to be for the betterment and the welfare of the US citizens. And that decision would be made by the court system, and ultimately the Supreme Court, not you or me individually. And there are lots of taxes and penalties that require us citizens to do something. You can be penalized or taxed for not filing tax returns, for not having auto insurance or for not registering your auto. There are hundreds and hundreds of examples. Read the ACA decision. My guess is that thetax you propose would be upheld, but I don't know for sure. You can call it an illegal tax, but really that's just your opinion. If its a tax that is determined to be for the welfare of the us citizens, then its legal and the only real way to stop it is to vote in a different congress.
Seriously, I am beginning to wonder if being "confused" with basically every one of my posts is a good attribute to have as an attorney? I am genuinely curious, what exactly is confusing. Words, sentence structure, ideas/opinion, etc.?
Anyway, why would you make this statement, I am basically agreeing with your statement. In other words, "ACA decision limits" = "decreased in scope".
"The ACA decision limits exactly what you are saying is not limited under the commerce clause."
"You are right, the commerce clause and its relationship specifically with ACA has decreased in scope."
Where it seems you are getting confused is when I make the statement that the commerce clause is used illegally as a function to regulate other normal business functions NOT related to the ACA.
You are mixing two clauses, thus two mindsets into this conversation. The first is obviously the commerce clause and the second is the general welfare clause. The two are not the same and in no way should be used/discussed together. The commerce clause has morphed into essentially "any and all business functions" and the general welfare clause has morphed into "for the betterment" of our nation, so from the perspective of progressive government the two naturally become, "we (meaning government) are going control everything to improve your (citizens) lives".
Again, I will make this statement because you keep going there in conversation. We are not governed by Judges, the Supreme Court was never intended to be used to decide what is lawful or unlawful, their sole function was to ENFORCE the law between parties, whoever that may be. Ultimately, it is up to the Legislative Branch, Congress, the PEOPLE to decide what is Constitutional. Do you even recognize or even consider the fact that you agree with the ideal that 9 men/women are literally governing our country, i.e. it is ultimately up to these few people to tell US (we the people) if our "proposed" laws are legal or illegal? Doesn't that seem the least bit strange to you? To me, this may be the biggest mental hurdle for you to overcome. I am not trying to insinuate you are not a smart guy, you obviously are, I am just saying you have been taught, trained, instructed to believe a particular way, that's all.
Look, you brought up health care reform in a commerce clause discussion, not me. From my reading, you appeared to be saying that health care reform is constitutional under the commerce clause. You then seemed to think that congress could impose taxes under the commerce clause that was directly struck down by the ACA decision. That's what is confusing.
As far as the taxing power and the general welfare clause, there have been different interpretations since the Philadelphia congress. You can follow either Madison's or Hamiltons view, but again, that's your opinion. I tend to agree with Hamilton, but that's just my opinion. The supremacy clause is both steeped in history from the very beginning. It's pretty clear that the drafters of the constitution were aware of it and supported it before and after the constitution was executed.
Basically, you want to look at every provision of the constitution and interpret in a way that's best for you. It does not work that way. We have 250 Years of case law that addresses the interpretation of the constitution as a whole on behalf of all citizens, not just one. This is why I accused you of being an anarchist. Just by saying something is illegal does not make it so. That's why I called you out on it originally when you stated the US policy on terrorism violated the constitution and some fictional international law, and I'm calling you out again. It's just your opinion and without changing it through legislation or proving it's unlawful through an appropriate judicial review, it will remain just that, your opinion.
After all of this time, how could you possibly come to this conclusion,
"From my reading, you appeared to be saying that health care reform is constitutional under the commerce clause."
When I have stated this,
"As for the ACA, this has nothing to do with the commerce clause and is completely unconstitutional"
No wonder you are confused, you must "speed" reading or something, I honestly don't know what you are doing.
Look, you really have to stop thinking I, me, blythewoodtigers is "interpreting" the Constitution, I really don't know how else to emphasize this more than I already have. None of what I say is my "opinion". It is simply "as stated" in the Constitution.
Back to the commerce clause. If you construct the scope of the present day commerce clause, it basically subverts the 10th Amendment of the Constitution. As you know, this Amendment gave the "people" the power (as long as it was not illegal in the State) to conduct everyday business with the assistance of the ratified commerce clause, you can say the ratified commerce clause was the catalyst to the 10th amendment or visa versa, i.e. they were intended to work hand-in-hand. Both would enable the free flow of goods and services across State lines or greater distances overseas.
So today, rather than the people or even the State regulating commerce, this function has been taken over and abused by the federal government. We have regulations and "Department of XXX" for literally everything.
I understand you have somewhat of vested interest in law since you are an attorney, but you still have yet to define or describe to me how you could possibly believe that the direction of our country's law should be under the direction and supervision of Judges and lawyers. You didn't answer this from my previous post, but how can you come to the conclusion that just 9 people, hold in their collective "hands" the authority to rule or overrule any law in this country? #1, as an attorney, please answer that question. #2, if you think #1 is "lawful", does the Legislative Branch (the people) have the authority to overrule the Judicial Branch
If possible, please provide me clarification on those two questions because it will basically determine if this conversation is going to go anywhere or not.
The seperation of powers is an integral, if not the most integral, part of our legal system. I don't agree that it should be bastardized based on your opinion (and yes, I continue to say your opinion because you have yet to provide one case or legal determination that supports your argument). You keep saying it's in the constitution," but the supporters of my position also say it's in the constitution. The difference is that with regard to my position, I have 250 years of case law and legal opinion after opinion to support it.
So, to answer your questions, only congress (the legislature) can make law. Congress can revise these laws as it deems fit, including the constitution through constitutional amendment. The judiciary has a right of judicial review. That is, in the US the judiciary can review a law and determine if its constitutional. As of the beginning of this century the Supreme Court had determined that more than 175 federal laws were unconstitutional, not one of which has been challenged for exceeding its constitutional authority.
However, the judiciary may not make law or enforce it. It's effectively a veto power. And as noted above, congress can go back and make another law that could pass judicial scrutiny. So, the judiciary has no right to rule on the application or enforcement of any law. It can overrule it as unconstitutional, but cannot rule on its use or modify it.
Only congress can make laws. We would bastardize our seperation of powers if we allowed the legislature to rule on its constitutionality and/or enforce it, or otherwise overrule the judiciary. Congress can, however, make new laws or revise laws that are deemed uncostitutional so that they pass judicial scrutiny. Congress can also amend the constitution through constitutional amendment. So, technically, Congress could overrule a judicial interpretation by changing the law or the constitution so that a law in question is constitutional. However, as you know, this has not happened. Why? Because our elected officials don't want to change the fundemental concepts of the constitution, and thus, indirectly supporting the concept of judicial scrutiny since it could be taken away at any time but has not been.
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After reading your post, I am relieved we are fundamentally on the same page. Your previous posts had me a little concerned we were basically never going to see eye to eye. I am not sure how you would prefer to extend this conversation. Do you still have any particular grievances?
Okay, here it is.
"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."
The first thing I would like to mention is the misconception that the "establishment of religion" meant religions OTHER than Christianity. Even though it sounds as if it did, I believe (and this IS my opinion) it didn't. The framers knew several branches of Christianity, not associated with the Catholic church, were "harassed" and not given an equal footing in England. This clause is basically a broad Christian clause to permit more tolerance amongst themselves. Coincidently, the wording fits nicely into the "all" religions idea AFTER mass immigration into the US started to take place.
The freedom of speech clause (not my opinion) is basically the most ignored and censored among all of our Bill of Rights. The form we have inherited (modern era) is no where close to what the framers intended, which WAS the ammunition to directly challenge the governments agenda. Today, "whistleblowers" are GUILTY until proven innocent. The narrative of "national security" has been used (abused) as a tool to silence any and all government scrutiny or oversight that would otherwise end their monopoly on information or agenda/policy.
Again, a lot to talk about. I mostly agree with your second paragraph, but I think you sell the members of the continental convention short. I believe they were smart enough to know that a myriad of Christian religious facets were possible in addition to completely alternative religions. By this time, they had been exposed to American Indians, and Jews and Muslims in Europe. They were not so pigeonholed that they did know of other religions, yet they specifically chose not to name any specific religion. Although I'm sure they didn't anticipate the massive immigration, they still had the foresight not to limit freedom for any particular form of religion.
Now to freedom of speech. Not sure where you fall on this, but your comments don't even get to the meat of the "constitutional" issue of governmental limitations on protected speech (such as the billboard comment you made several posts up). That has to do with a Supreme Court created test for determining when the government is justified in limiting information that would otherwise be protected due to strict scrutiny of a compelling governmental interest.
We don't even get to that test or issues associated with it when it comes to national security. Disclosure of info that threatens national security is not protected information. It's like yelling "fire!" In a theatre when there is none. Now, before you get huffy about this, I understand your point is that the US government has taken things too far under the guise of national security (i.e. Congress has abused it's power), but let me make a point.
It's a balance between what secrecy is needed for the protection of our citizens and what should be disclosed under the first amendment. There are always going to be those on each side of the fence. My point is that there has to be a fence. And that's why we have an elected government; to decide where that fence line will be.
This is not really a constitutional issue other than the clear conflict between national security and the first amendment, which was understood and for the most part and acknowledged by the drafters of the constitution. As a reminder, Even the continental congress in drafting the constitution was done in secrecy. It's inherent in the constitution and has been a part of our government since it's inception. And without it, the very fabric of our society would be at risk.
You may be familiar with the Heritage Foundation. It is a conservative policy organization that for the most part preaches to your tune. Judge Martin Feldman addressed the issue you are raising in an enlightening speech given on behalf of the organization. Please read it. It sums up my thoughts in a much more effective and understandable manner than I can write. Here it is. http://www.heritage.org/defense/rep...-not-incompatible-national-security-interests. Again, it's given to a very conservative organization, which he is a supporter of.
Now to freedom of speech. Not sure where you fall on this, but your comments don't even get to the meat of the "constitutional" issue of governmental limitations on protected speech (such as the billboard comment you made several posts up). That has to do with a Supreme Court created test for determining when the government is justified in limiting information that would otherwise be protected due to strict scrutiny of a compelling governmental interest.
We don't even get to that test or issues associated with it when it comes to national security. Disclosure of info that threatens national security is not protected information. It's like yelling "fire!" In a theatre when there is none. Now, before you get huffy about this, I understand your point is that the US government has taken things too far under the guise of national security (i.e. Congress has abused it's power), but let me make a point.
It's a balance between what secrecy is needed for the protection of our citizens and what should be disclosed under the first amendment. There are always going to be those on each side of the fence. My point is that there has to be a fence. And that's why we have an elected government; to decide where that fence line will be.
This is not really a constitutional issue other than the clear conflict between national security and the first amendment, which was understood and for the most part and acknowledged by the drafters of the constitution. As a reminder, Even the continental congress in drafting the constitution was done in secrecy. It's inherent in the constitution and has been a part of our government since it's inception. And without it, the very fabric of our society would be at risk.
You may be familiar with the Heritage Foundation. It is a conservative policy organization that for the most part preaches to your tune. Judge Martin Feldman addressed the issue you are raising in an enlightening speech given on behalf of the organization. Please read it. It sums up my thoughts in a much more effective and understandable manner than I can write. Here it is. http://www.heritage.org/defense/rep...-not-incompatible-national-security-interests. Again, it's given to a very conservative organization, which he is a supporter of.
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I didn't get to the "meat" of the first Amendment by design. I thought it would be better to get your impressions first, then maybe jump into it some more.
The whole idea of "free speech" IS a form of empowerment, its that simple. In enables an individual to announce his or her sovereign rights (as long as it does not put anyone in harms way) without fear of prosecution or repercussion, either by other another individual, groups or the government. This ability was only reserved for particular people (nobility) in Europe and the framers knew it was going to be a requirement to get people to "buy-in" and have something (amongst others) to fight for.
I read the article you linked. To this day, I do not understand why so many people (private citizens) associate the first Amendment with national security or visa versa. I know you will probably not agree with this, per your last post, but I personally don't see the intimate connection. The term "national security" infringes on more fourth Amendment (private property) rights, by FAR, than any other, the first Amendment rarely comes into serious play.
As you notated and I mentioned earlier, the first Amendment runs into more trouble with "local" (city, county) bureaucracy more so than State or Federal government. Signs, posters, displays, etc. are a magnet for first Amendment controversy. Local government pretends to be the voice of the Constitution when the Constitution clearly states that as long as no harm is caused by an individuals actions, all is fair play. But, local government thinks that an individual should only be able to use a certain type of brick, display at a certain height, use only a particular color, only use so many lights, etc. They believe they can dictate our first Amendment rights.
The VAST majority of first Amendment security "issues" originate only from former government employees. Among these is the dilemma of telling the TRUTH, i.e. truth becomes treason. I say dilemma simply because it is for government, NOT for the people. So in my opinion, and I believe the framers (The First Amendment) as well, the truth has no seat at the table of treason, the truth is how this country began building its foundation into a country of admiration around the world. Truth and justice for ALL was/is the very bedrock of our Constitution. Not silence, censor and prosecution of the truth.
Look at the governments dilemma with an individual like Snowden. A highly intelligent individual who can articulate the very ins-and-outs of our governments agenda that poses NO advantage for you and I. As a matter of fact, it is just the opposite, it places you and I in more harms way, it removes more of our rights and causes society to degrade from the inside out. Today, our government literally operates on a veneer of justice in a kingdom of crime.
The whole idea of "free speech" IS a form of empowerment, its that simple. In enables an individual to announce his or her sovereign rights (as long as it does not put anyone in harms way) without fear of prosecution or repercussion, either by other another individual, groups or the government. This ability was only reserved for particular people (nobility) in Europe and the framers knew it was going to be a requirement to get people to "buy-in" and have something (amongst others) to fight for.
I read the article you linked. To this day, I do not understand why so many people (private citizens) associate the first Amendment with national security or visa versa. I know you will probably not agree with this, per your last post, but I personally don't see the intimate connection. The term "national security" infringes on more fourth Amendment (private property) rights, by FAR, than any other, the first Amendment rarely comes into serious play.
As you notated and I mentioned earlier, the first Amendment runs into more trouble with "local" (city, county) bureaucracy more so than State or Federal government. Signs, posters, displays, etc. are a magnet for first Amendment controversy. Local government pretends to be the voice of the Constitution when the Constitution clearly states that as long as no harm is caused by an individuals actions, all is fair play. But, local government thinks that an individual should only be able to use a certain type of brick, display at a certain height, use only a particular color, only use so many lights, etc. They believe they can dictate our first Amendment rights.
The VAST majority of first Amendment security "issues" originate only from former government employees. Among these is the dilemma of telling the TRUTH, i.e. truth becomes treason. I say dilemma simply because it is for government, NOT for the people. So in my opinion, and I believe the framers (The First Amendment) as well, the truth has no seat at the table of treason, the truth is how this country began building its foundation into a country of admiration around the world. Truth and justice for ALL was/is the very bedrock of our Constitution. Not silence, censor and prosecution of the truth.
Look at the governments dilemma with an individual like Snowden. A highly intelligent individual who can articulate the very ins-and-outs of our governments agenda that poses NO advantage for you and I. As a matter of fact, it is just the opposite, it places you and I in more harms way, it removes more of our rights and causes society to degrade from the inside out. Today, our government literally operates on a veneer of justice in a kingdom of crime.
