Freedom of Religion??????????
I don't know anyone in America that doesn't support the freedom of religion. Why do you ask?
The Christian Reich {Right} doesn't support freedom of religion-unless its theirs.
Bob Blair, as a Senator, tried to shut down Wicca worship on a US Army base because it was [cough] Satanic.
I do understand the military Chaplain manuals contain the information to conduct Satanic rituals when needed.
There are restrictions on rituals. No animal slaughter for instance.
Quite a few Christians were enraged, a year or so again when Ellison{?} wanted to, and did take, his oath of office on the Q'uran.
Before Congress begins a prayer is said. Christians went apeshit when a Muslim was to give the invocation. The Christians absolutely refused to let him give the invocation and acted like unspanked toddlers.I support the freedom of religion to the point that the Constitution requires.
It's a state issue. Amendment 1 denies CONGRESS to pass laws about religion. And then the 10th amendment denies every single federal branch of government from passing laws about religion, and in the process, makes the issue directly a state issue.
Moderate religion is a branch of philosophy; that is a good thing. Extreme religion is fanaticism and/or power politics; not such a good thing. The Constitution allows religion to the point that said religion does not violate the rights of other religions.
no, this is incorrect.
The constitution fully allows any state to write any religious law it deems necessary.
I'm an atheist, and so I hate this, and I would love to Amend the document. But it isn't being done, and it likely won't be done.
But if you actually read the constitution (read the 1st amendment, then the 10th amendment, and then article 1 section 8-10) you'll see that any state has the power to write any law about religion it deems worthy.
Unfortunately you are wrong, Evan. I quote from Wikipedia on Gitlow v. New York, 268 U.S. 652 [1925] -
Gitlow v. New York's partial reversal of that precedent began a trend toward nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states... The Court's ruling on the effects of the Fourteenth Amendment was incidental to the decision, but nevertheless established an extremely significant precedent."yeah, the court can keep smoking it's wacky tobaccy, but English words and sentences still mean things... at least, to me they do.
The supreme court is wrong. It's clear that they are. And no, i refuse to believe that 9 unelected judges have the power to change the constitution. I simply refuse it.
States HAVE the power - even if the supreme court doesn't know how to read.
judges reading a decision that overturns the 10th Amendment COMPLETELY, without there being a congressional move to repeal or amend the Constitution is simply nonsense (not nonsense on YOUR part, nonsense on their part). Judges just do NOT have that power.
I'm disgusted that they think they do, and that no one has stopped them.Evan -
The Constitution says what it says - but it MEANS what the Supreme Court says it means. The justification for that fact is simply - because the Constitution says so.no, that's incorrect - no where in article 3 does it say that the supreme court is allowed to be the sole / end / ultimate being that defines what the Constitution says.
There is no "supreme interpreter" clause anywhere in the entire document.What do you believe the role of the courts is, under Article III? What do you think Article III means when it says that the "judicial power" resides with the Supreme Court and with inferior courts?
Article III
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 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.)so you're saying that the Federal government has the absolute power to determine what the Constitution means?
that's nonsense - they'll just keep taking rights and powers away from the states
imagine you get into a contract with your neighbor, and you promise to pay him 10 bucks to mow your lawn. If you allow HIM the power to translate the contract, he'll ask for the ten bucks, but then mow the lawn in 20 years.
The same is true with the federal/state governments.
The constitution means what it says, and says what it means.Evan, you may not like this, but your constitutional arguments are entirely off the wall. Scalia, the most conservative member of the SC, would think your statement that the SC is not the final arbiter of the Constitution to be preposterous and insane. And Scalia cares about states rights. Article III plainly says that the Supreme Court and its subordinate courts decide all cases and controversies under the U.S. Constitution. I quoted the language for you. All three branches of the federal government must do their best to interpret and honor the constitution, but whenever there is a disagreement anywhere in the country over what rights a person has under the Constitution (assuming that person has a sufficient interest to have standing), judges decide that. I pointed you to Article III. The federal constitution says that the U.S. Supreme Court has supreme judicial power over all cases and controversies arising under the Constitution. Every source of executive power (state, federal, whatever) in this country acknowledges the authority of the Supreme Court to decide cases and controversies arising under the Constitution (i.e., deciding what the Constitution means when people disagree). I think you are a very intelligent person, and think many of your opinions have merit, but your opinions on constitutional law are not even in the range of reasonable opinion. You can wish the Constitution was a certain way, but that does not make it so.
(sorry for my late reply, life happened)
Ok, so here's the thing. You're stepping half a step too far with Article 3
here's the quote that we're debating over: "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..."
this clearly does not say that the supreme court can alter the meaning of the Constitution. What it says it that the "judicial power shall extend to all cases... arising under this constitution"
There can be no way that "taking away the state's tenth amendment right to pass laws regarding religion" could ever have been a legitimate "case... arising under this Constitution". And even if this were true, the Supreme Court lacks the power to take away said rights - that is a legislative act that would require an Amendment to the Constitution.
I can see your confusion - the document says something very similar to "translate the Constitution" but it merely says that the Supreme Court is allowed to decide (basically) the Constitutionality of cases that arise under the steps laid out further in Article 3.No one said anything about altering the meaning of the Constitution. No one said about anyone "taking away" constitutionally protected rights. You disagreed with the proposition that under our system and the Constitution the Supreme Court is the final arbiter on what the Constitution means. Your entire post is a series of circular arguments, i.e., "there's no way that the SC can "take[] away the state's tenth amendment right to pass laws regarding religion." Since a state has no 10th amendment right to do so, the SC is doing nothing of the sort. It is interpreting the Constitution and its decisions are binding and controlling on the other two branches of government. I am not "confused," I address the effect of controlling precedent under our Constitution on a regular basis. This is not a controversial point...your argument is at odds with a basic understanding of constitutional law and governmental process that has operated since the Constitution itself. I respect your political beliefs and they have a place in policy arguments. But you repeatedly post things about Constitutional law that are simply incorrect.
But, see, you ARE talking about altering the meaning of the Constitution - the section of the constitution that you pointed to doesn't actually say anything about the Supreme Court being the final arbiter on what the Constitution means!
The first section of Article 3 means (and says) that the Supreme court is allowed to decide the Constitutional legitimacy of cases.... and even then it's only a select series of cases: state vs state, maritime, treaties, ambassadors, "controversies to which the United States shall be a party" (read: the federal government. Back then "the United States" was actually meant in the plural: "the states that are united in a federal government"), problems with citizens in different states, ... yada yada
NO where is "Supreme Arbiter of the Constitution" power granted to the courts. they are simply the final arbiter in those such cases.
Now - how does this mean that they're altering the meaning of the constitution? -- Because the judges have usurped powers not granted to them by the TRUE supreme law of this land (the Constitution) and have used it to redefine the powers of the States (and they did so, not surprisingly, in the favor of the federal government).
They have translated "congress shall not" to mean "no state shall".
AND!!! They have done so in a way that was (is) unconstitutional.
Thus, they HAVE amended the Constitution -- without being a legislative body -- and they did so in an unconstitutional manner.
Sorry, the document completely and 100% agrees with what I'm saying. Your argument, however, requires that we ignore the 10th Amendment.Sigh. That is exactly what Article III says. This is a strictly textualist interpretation. You do not understand it because you apparently lack the tools to do. And I do not mean that in an insulting way. After going back with you for days I can only conclude that for whatever reason you literally cannot understand the language of Article III. I have tried. I understand your interpretation of the 10th amendment argument. It is not correct but it isn't crazy.
Your interpretation of Article III, however, is not only incorrect but it is ridiculous. It is contrary to hundreds of years of jurisprudence in both our federal and our state courts. It means that for hundreds of years whenever both the executive and legislative branches (and all of the lawyers they hire to advise them) honored the rulings of Article III courts in resolving disputes involving constitutional issues, these people just didn't understand the constitution like you do. It means that whenever a person with constitutional standing has a case or controversy involving any governmental entity, even though they can file the case in a court the court lacks any power to rule on it. How could it? Constitutional interpretations by the executive and legislative branches are immune from judicial review.
Your attempt to describe what Article III means is incredibly awkward and shows that you are having trouble understanding the plain text. You say: "The first section of Article 3 means (and says) that the Supreme court is allowed to decide the Constitutional legitimacy of cases" Your quoted language has absolutely no meaning from a legal sense...none. Do you mean that Article III, Section II is defining the scope of the limited federal subject matter jurisdiction of Article III courts? It is. But you do not understand the language that shows that the scope of that jurisdiction is. It states that Article III courts have jurisdiction over any cases brought under the Constitution or federal law. This is known as "federal question" jurisdiction and is one of the two main circumstances under which federal courts exercise subject matter jurisdiction (the other is in lawsuits between citizens of two different states and is known as "diversity" jurisdiction).
I honestly can't do this anymore with you. I will leave you with a few questions. You don't need to answer them but I would suggest you think about them if you feel like it. I've pretty much said what I have to say and you are not able to understand the plain text of Article III. I can recommend a number of good treatises if you want a basic primer on constitutional law and civil procedure. I suspect that you are not interested but it is a genuine offer, I know a number that are good and accessible. But ask yourself these questions and think about them.
1. When Article III, Section I says the "judicial power" what does the term "judicial power" mean?
2. When Article III says that the judicial power "shall be vested in one Supreme Court" what that mean? In particular, what do you think the term "vested" means in this context?
3. Look at Article III, Section II. When it says "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and ..." what does that mean? In legal terms, this is known as "federal question" jurisdiction. When a court is exercising federal question jurisdiction, what kinds of questions is the court ruling upon?
4. Section II repeatedly uses the words "cases" and "controversies." What is a case or controversy in Article III as it applies to the power of the courts? If a federal court resolves a case or controversy involving the constitutionality of a federal law, what is the effect of that ruling?
5. Do cases that begin in state court ever end up in a federal court? Why does that happen? (You don't need to understand the procedure...just where the federal court's jurisdiction comes from). Why do state courts consider federal court precedent on federal question issues controlling? Have state court trial, appeal and supreme court judges around the country misunderstood Article III for the last 200 years?
6. Has the Supreme Court struck down any other laws in the last 200 years? Would it surprise you that it struck down the first federal law in 1803 and has done so repeatedly since? Why do the other two branches obey? Do they not understand Article III?
7. Do state courts ever challenge federal legislation? Why are those cases heard in the federal courts.
8. Are you familiar with the lawsuit brought by the state of Virginia against the Department of Health and Human Services challenging Obama's new federal health care legislation? Why did Virginia file this lawsuit in federal court? Why is Virginia filing this lawsuit if the executive branch is free to ignore the constitutional rulings of an Article III judge? The legislative branch has passed the federal healthcare legislation...doesn't that make this law and any law immune from constitutional review?
8. Do individuals ever bring federal question cases against the executive branch? Why does the executive branch obey these rulings?"You do not understand it because you apparently lack the tools to do."
... ouch. I could easily say the same to you. What an insulting thing to say - My translation is perfectly in line with the Constitution -- I didn't know that it took a law degree to "read English". This stuff was written down for a reason: so that people could read it and check to make sure that the government wasn't usurping power. Now YOU come here and say "oh, because you're translating it in a way that doesn't abide with teh power-usurping judges of the Supreme Court, you obviously lack a very important English-translating part of the Human Mind! It's not an insult, you just simply aren't a human! Go back to your neanderthal cave!" I would insult you back, but then someone would report ME and have ME banned.
... then you say that it's not an insult? really? It seems that I AM better at translating English than you are....
...anyway... I'll pretend this wasn't said.
"It is contrary to hundreds of years of jurisprudence in both our federal and our state courts."
... So you're saying that James Madison was wrong when he vetoed a bill building interstate roads as unconstitutional? and you're saying he's wrong merely because "we do it now, and thus it must be correct because that's how things have worked!" (that's the best example I can think of off hand, but there are likely thousands of similar examples that could be thought of - things that were unconstitutional, but now ... somehow... aren't, simply because the Supreme Court changed its definition of Constitutional)
Here we go with the easy to dismiss and answer questions...
1- Judicial Power: the power/ability to translate law. The federal branch's judicial power is vested in the Supreme Court, and lesser courts as need requires (these lesser courts are ordained by Congress - NOT the Supreme Court).
"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution..." ... this clearly shows that they are to "translate the laws" of "the federal government" in issues that "aris[e] under this Constitution".
This does NOT mean that they are able to "decide that the 10th amendment doesn't exist"
2- the power of the judiciary is vested (i.e., granted) to the Supreme Court. Indeed, you actually got that part right (oops, sorry, that was my neanderthal instinct kicking up). But then you chose to ignore all the restrictions put on the Supreme court: they only decided cases involving... here go, get ready, i'm actually going to list them
A) issues arising under the Constitution (this does not mean to translate the constitution; B) treaties made by the federal gov't; C) cases affecting ambassadors and other public ministers/consuls; D)admiralty and maritime jurisdiction; E) Controversies to which the Federal government shall be a party; F) when two states bicker; G) when a state and a citizen of another state get into an argument; H)When citizens of other states fight; I) when some guys of the same state claim land in a different state;
AND THEN, ON TOP OF ALL THESE RESTRICTIONS, the 11th amendment FURTHER restricts the Supreme Court: none of the judicial powers granted in Article 3 shall be construed to extend to any case where a citizen prosecutes a foreign state.
... still not seeing the "supreme court has the final say in translating the Constitution" clause...
3- the court is merely deciding on the issue. They will USE the Constitution to reach their decision. This, once again, does NOT mean they can translate and change the Constitution at will.
4- The effect of the Supreme Court translating a law as unconstitutional is that... ... the supreme court has translated a law as unconstitutional. This doesn't necessarily mean that it is so. The Congress - y'know, that LEGISLATIVE branch - then must decide if they are right and then proceed to change things.
... remember the Congress? remember? they are the ones who WRITE the laws and actually have the power to amend the Constitution.
Does this mean that the Supreme Court is, in effect, pointless? No of course not. They decide the cases - if they repeatedly refuse to enforce XYZ, then Congress and the Executive has a decision to make: replace the judges, or change the law.
Ta-da! My neanderthal logic saves the day!
5- "Do cases that begin in state court ever end up in a federal court?" -- they should only do so if the issue is one of the issues outlined in article 3 section 2.
... so I guess... it WOULD matter how it came about, i.e., the procedure.
6- The supreme court can't "strike down" laws - it can merely refuse to enforce them.
Striking down a law would be a legislative act because it involves erasing a law from the books, rewriting laws, and putting other laws in its place.
7- yes, frequently. Just recently Montana is nullifying a federal requirement on Gun production. any gun made and put together in Montana, the state has decided, is completely safe and free of any federal government legislation.
for an older example, South Carolina almost went to war over the Tariff of Abominations when President Andrew Jackson was actually able to get permission from Congress to invade South Carolina (SC refused to collect the money that should have been collected via the tariff). And a few days before the invasion, they were able to reach an agreement... one that destroyed the Tariffs. --- SC nullified and got rid of the Abominations.
That's right - a STATE refused to abide by an UNCONSTITUTIONAL law, and was able, by its actions, to have the law REPEALED.
8) I would say that the reason why Virginia filed the lawsuit in a federal law would be because the law in question is an unconstitutional law, and thus a "case... arising under this Constitution".
See how that works? Reading? MY NEANDERTHAL POWERS WIN AGAIN!
But when this fails -- and it WILL fail: sorry to ruin the ending of the saga, but the Supreme Court is party to the Federal Government, and many of the people there owe their jobs and prestige to Obama -- then, if Virginia has the cajones, they will nullify the law. They will refuse to enforce it, and will refuse to collect the taxes.
--------------------------------
SO there we go, perfectly constitutional answers to your questions, each one showing that the Supreme court .
And for the record, telling someone that they are "unable" to do something so simple as "read their native language", even after they have a college degree, is - no matter what you say - insulting.But you think it is okay to tell someone they don't have the right to choose?
what did i say people don't have the right to choose? that sounds completely unlike my philosophy...
... please to be explainink?
BTW, if I wasn't clear...yes the federal government (through the Supreme Court) has absolute power to decide what the federal constitution means and everything is subordinate to the federal government in those areas where the constitution gives the federal government authority. This isn't even controversial. I appreciate that you have political beliefs, and you can hope that the law was otherwise, but many of your posts on constitutional law seem a little crackpot.
To argue why the federal courts should not be able to define the federal constitution, you argue "that's nonsense - they'll just keep taking rights and powers away from the states." Just because you don't like it, doesn't mean it is so or even make it nonsense.
I respect that you have libertarian political views. And there are certainly issues of policy where these views have a place. But your constitutional analysis is flawed. There are many many disagreements over constitutional law, but you are not even within the realm of reasonable. And I do not mean to make an argument from authority...but for whatever it is worth I can tell you with great certainty how the judicial system works today, and has worked since the Constitution was adopted (you are entitled to think it works incorrectly). Understand that I have briefed issues of constitutional law to the U.S. Supreme Court (but never personally argued there yet). I have both briefed and argued issues of constitutional law to numerous state appellate courts and federal appellate courts, including several state supreme courts. The whole system could be wrong but I want you to know that when you keep schooling hubbers of what the constitution means your views are so extreme that they are not even part of the debate. Again, you can think I and all of the conservative and liberal constitutional scholars, lawyers and judges across the spectrum are wrong. That's fine.Why is it political office holders do not defend and uphold the constitution as they've sworn to?
'W' had great glee in using it for toilet paper.The Constitution was written in plain English for all to understand, not just some high court. The court has the power to rule on Constitutional issues, but they do not have the power to deny the plain meaning of the Constitution.
We have three branches of government for a reason. If the court had as much power as you give it, we would only have one branch.Just as everyone can read the Constitution everyone can disagree on its meaning. But when that disagreement results in a live case or controversy, our judicial branch resolves those controversies. You are correct, we also have two other branches of government. They have different functions.
Everyone can disagree on its meaning? How can you disagree on "the right of the people to keep and bear arms shall not be infringed" or "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" or "the right of the people peaceably to assemble"?
Those have plain meanings that should not be disagreed upon by anyone who can read. While the far edges of policy relating to those phrases may be debated, the meaning should not be.we also have 50 states that can take power away from the federal government via nullification and interposition.
we also have 300 million people who can over throw the government if need be.What an interesting rebuttal. Sure the government can be overthrown. Perhaps it should be. But I thought we were talking about the Constitution? If you are talking about throwing the Constitution and the government out, I'm not sure I think that's a bad thing.
all animals are created equal...
but the supreme court demands that some animals are MORE equal than others.
the Constitution only means what this guy and his friends say it does...
Evan, the Constitution itself states that the Supreme Court is the final arbiter of what it means. You can disagree with a Supreme Court decision...I know I have. But Supreme Court precedent defines what and what is not constitutional. Any result otherwise would itself be contrary to the Constitution.
"the Constitution itself states that the Supreme Court is the final arbiter of what it means."
... no ... it doesn't... Unless you can point to the quote in the Constitution which says that... then... your argument is wrong.
no where in the document does it make that claim whatsoever. There's no way that the founders would have agreed to that.
"hey, let's wage a war against a tyrannical power... ... .. and then just establish a new one!"Evan, I already quoted the plain language of Article III. As stated in Article III, the Supreme Court is the highest authority in the "judicial power" in our government. I also quoted what Article III says the "judicial power" is. Go back and look at my post. In short, it is deciding every case and controversy arising under the federal constitution. I can't believe you keep arguing this point. Anyone can disagree with a Supreme Court ruling, and I personally disagree with a number. But the Supreme Court is the supreme judicial authority on any dispute in the country on what the federal constitution means. There are disagreements on what the Constitution means, but this is not a gray area.
Evan, FWIW, your 10th amendment analysis assumes that some act that is prohibited to the federal government is necessarily granted to the states. That isn't so. The 10th amendment says that powers that the Constitution does not "delegate" to the federal government reside with state governments or the individuals. There is a difference between not delegating an area of law to the federal government and forbidding the federal government from doing something. Just because the federal government is prohibited from doing something does not necessarily mean that the Constitution is giving a state a green light to do it.
I have pointed out in other posts that the SC has widely considered this language as a truism, based both in the historical context and alternative language that was rejected by the drafters, and because it states the obvious (which of course is what a truism is). But even by its plain terms, I think your argument is incorrect because of this distinction between prohibition and delegation I identified above.
Moreover, the 14th amendment requires states to award individuals substantive due process. What do "life, liberty and the pursuit of happiness" mean? The Constitution does not define it. But the Supreme Court has found that the protections afforded under the first amendment have the character of substantive due process. This is what would prevent a state from stripping individuals of religious rights or freedom of speech. Don't buy it if you don't want, but that's the argument.let's look at the tenth amendment again
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The powers not delegated to the US by the Constitution....
... nor prohibited by [the constitution] to the states...
... are reserved to the states respectively...
... or to the people.
No where in that reading does it say that "the federal government is allowed to do what it wants unless the states prohibit the federal government from doing so".
In fact, it says just the opposite: "the powers not delegated to the US by the constitution... are reserved to the states..."
Thus, ANY power NOT granted to the US government is reserved to the states.Evan, I did not say the below quotation (at the bottom of this email)...at least I don't think I did. The prohibition comes from the Constitution itself. If the Constitution says that the federal government cannot abridge freedom of religion, this does not mean that state governments (or "the people) can. There is a difference between what powers are delegated to the federal government and what the federal government is prohibited from doing. The 14th amendment makes clear that the federal constitution requires states to afford substantive (and procedural) due process to their citizens. What substantive due process is is not defined by the constitution. The Supreme Court has construed it to mean, inter alia, the protections afforded under the First Amendment. This is why Oregon cannot promulgate laws restricting the freedom of speech or religion. I know you have said that you do not regard Supreme Court precedent as persuasive, but under our system the SC not only defines what the Constitution means buts its rulings are binding on all lower courts. The constitution is less than clear in many respects, and was intentionally drafted that way unfortunatly because of the conflicts at the time of its drafting between various factions, including those favoring a strong national government and those that wanted a more decentralized confederacy of states. I know you disagree with the precedent, and believe that the Constitution should be interpreted a different way.
...
"No where in that reading does it say that "the federal government is allowed to do what it wants unless the states prohibit the federal government from doing so".Re-reading your comment - indeed, i think i mis-interpreted what you said.
All apologies.
I thought you were saying that those powers not delegated to the states were left to the fed. We both agree that would be incorrect.
You WERE saying that if a power is prohibited to the federal government, it should be prohibited to the states. (a quote from you: "If the Constitution says that the federal government cannot abridge freedom of religion, this does not mean that state governments (or "the people) can.")
this is incorrect.
No where in the tenth amendment can your argument be supported. IF it's prohibited to the federal government... then...
... ...
... it's prohibited to the federal government. That's it. It means that the states didn't want a bunch of twits in Washington telling them how to do the thing in question.
Due process is discussed as far back as the magna carta - it basically means the legal judgement of peers. http://www.usconstitution.net/const.html
Once again, you are relying on a biased party to define it's own boundaries. This is an absolutely foolish thing to do. I reject the idea that the Supreme Court is the only entity entitled to translate the Constitution. To do so would be to allow tyranny.
*** no where in the Constitution is the Supreme court given the authority to directly translate the Constitution -- and it is ESPECIALLY not given the final say in doing so***You are close. Actually, what I said was that actions forbidden to the federal government are not necessarily permitted to the states. They may be permitted by the states or forbidden to the states, it depends on what the action is. As is relevant here, it depends on whether the federal prohibition falls within substantive due process. Your definition of due process is incorrect. It has both a procedural character (i.e., a fair hearing and a right to defend yourself), and a substantive character, i.e., life, liberty and a pursuit of happiness. The Constitution does not define what substantive due process means, but the 14th amendment makes clear that states are forbidden from depriving their citizens of it. The Constitution also says that the Supreme Court decides what the Constitution means whenever there is a dispute about it with parties that have standing. And the Supreme Court has said, repeatedly, that the protections for speech and religion found in the 1st amendment help define what substantive due process is...i.e., they are part of life, liberty and the pursuit of happiness. This is why, under controlling precedent, states must afford all of their citizens the protections afforded by the 1st amendment.
I have also pointed out, and you have not addressed, that the language in the 10th amendment that you relied upon has been rejected by the Supreme Court for over 50 years. Why? Because it is a truism and has no legal effect. I have quoted the relevant precedent to you. The federal government not only has the powers expressly delegated to it, but also those implied powers it requires per the Necessary and Proper Clause (which the 10th amendment does not modify).
At the end of the day, most of your arguments are policy arguments. You come from the perspective that a federal government is bad and a state government is good (why state governments are any less tyrannical is something of a mystery) and then argue that the Constitution must support you because otherwise you will not get the result you desire. So you'll argue things like..."it can't be so, or tyranny will prevail...or the feds will usurp the states, etc." These aren't direct quotations obviously. My response is, you are entitled to an opinion that the system is not the way you want, and your policy arguments should be given weight, but only as a policy argument. They are not persuasive as constitutional arguments.I have read Article 3 almost 15 times now - looking, searching, deliberating for a "supreme court can translate the constitution" clause. it doesn't exist.
But wait a second- Amendment 11 amends Article 3, it must be there!!!... nothing. In fact, the 11th amendment further restricts the Supreme Court.
Could it be in Article 4? The one talking about the states? ... nope... nothing there.
Wait!! 4 was amended by the 13th amendment - it must be there!!... nope...
It doesn't exist.
Until you can quote the Constitution where it says so, i'm afraid i will have to ask you to stop making things up; it takes too much effort to search for the tooth fairy.Read Article III another 15 times if you must. I've reposted the relevant language already. The Supreme Court is the highest authority in the exercise of judicial power. The judicial power is defined in Article III as all cases and controversies under our constitution. This means that whenever anyone with standing has a dispute over issues involving the federal constitution the supreme court can ultimately decide how to resolve that dispute (at which court level it starts and whether it begins in the state or federal courts is more of a matter of jurisdiction). The rulings of the Supreme Court are binding on all lower federal and state courts and they must follow Supreme Court precedent. Anyone within or without the government can have an opinion and interpret the Constitution however they want but if there is ever a disagreement over the meaning of the Constitution this dispute will end up in our courts. I have asked you what you think the "judicial power" means as used in the Constitution to help you suss out the plain meaning of that term. You did not answer my question. There are lots of areas of debate on constitutional issues, but you are not on the playing field. I've already explained why your 10th amendment and Article III analysis is deeply flawed in this thread and in others. I do not know what else to say. You can keep saying you don't see it in the Constitution but I have pointed out where your reasoning is flawed from both a textual sense (such as how you have conflated what has been delegated to the federal government with what the federal government has been prohibited from doing) and how your arguments are contrary to controlling legal authority. With respect, I would work on your tone. I have tried to add to this discussion from a perspective informed by working with these issues on a regular basis. Disagree with me if you want but don't accuse me of "making things up" or searching for the "tooth fairy." There are very credible constitutional scholars that are textualists and strictly hue to the plain meaning and text of the constitution. They would call your arguments nonsense. Believe whatever you want...it is clear that you are going to keep interpreting the Constitution however you want and will ignore any arguments otherwise because they contradict your reading. One reason we have courts is because people disagree.
oops, i posted my reply to a different post of yours... I'll just try to copy/past it here
(sorry for my late reply, life happened)
Ok, so here's the thing. You're stepping half a step too far with Article 3
here's the quote that we're debating over: "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..."
this clearly does not say that the supreme court can alter the meaning of the Constitution. What it says it that the "judicial power shall extend to all cases... arising under this constitution"
There can be no way that "taking away the state's tenth amendment right to pass laws regarding religion" could ever have been a legitimate "case... arising under this Constitution". And even if this were true, the Supreme Court lacks the power to take away said rights - that is a legislative act that would require an Amendment to the Constitution.
I can see your confusion - the document says something very similar to "translate the Constitution" but it merely says that the Supreme Court is allowed to decide (basically) the Constitutionality of cases that arise under the steps laid out further in Article 3.
Evan, part of your confusion may stem from a lack of historical understanding of the circumstances under which the Constitution was drafted and adopted. I think you have some of it, but not all. Not everyone was against a strong federal government. As I am sure you know, we had a number of states operating under the Articles of Confederation prior to the constitution. Many, people like George Washington and John Madison, felt that our nation could not function effectively under that system and favored a strong national government. When the constitution was drafted, there was significant conflict between various interests, including interests that favored a strong national government and interests that were concerned with states rights. So you keep approaching this as if the framers of the constitution were a unified front, shell-shocked from the "tyranny" of the British government and intent on maintaining a group of strong state governments. That's not true at all. BTW, some of them viewed state governments with suspicion as well and were concerned about rights of individuals as against both state and federal governments. Indeed, in our subsequent history there are many instances where at least some citizens have found their state governments to be a source of tyranny and the federal government to be a source of hope. At the time of the constitution, there was also belief that the bills of rights in state constitutions could provide an even greater protection than the backstop provided by the federal bill of rights. This is why your argument that state governments can freely deprive their citizens of freedom of speech and religion turns history on its head. Much of the way the Constitution was drafted shows a certain genius in trying to navigate the tension between competing factions. This is evident with the 10th amendment, where states rights factions attempted to emasculate the federal government by arguing that it should contain language that would limit the powers of the federal government to only those expressly provided under the Constitution. Those voices lost the day, and the 10th amendment as drafted omitted limitations to express powers and did not modify the Necessary and Proper Clause. You keep arguing that the Constitution cannot mean what the Supreme Court says it does because the framers would never have agreed to it. I think that comes from a mistaken assumption that they had a unified view that state government was good and a strong federal government was bad.
indeed, Alexander Hamilton wanted George Washington to be the new Monarch. This was obviously never going to happen.
But, a state is allowed any power not stripped of them in article 1 section 10 - that's what the document says.
your statement: "At the time of the constitution, there was also belief that the bills of rights in state constitutions could provide an even greater protection than the backstop provided by the federal bill of rights. This is why your argument that state governments can freely deprive their citizens of freedom of speech and religion turns history on its head. "
this sounds all fine and dandy, but we're talking about the first amendment, and it says specifically that CONGRESS may not pass any laws.
I've made this argument a million times, and i won't change my mind --- until you can show me somewhere in the Constitution where it says one of the following:
1- "The supreme court may amend this document through judicial decisions"
2- "No state may pass a law respecting a religion"
3- "no form of state or federal government may pass a religion"
4- or if you could point to a clause in each state's constitution saying "this state will not pass any religiously biased law"
Until one of these clauses is discovered, then, unfortunately, a state may pass a religious-biased law.
The 10th Amendment DEMANDS it. And I reject that the Supreme court be allowed to amend the document by simply deciding a court case -- I'm still waiting on the constitutional quote that says this!!!! I'm wa~~aiti~~ing!!
oh, and about the 14th amendment -it clearly states that NO STATE shall do XYZ.
Thus, these are powers prohibited to the states, and also not delegated to the federal government, thus they belong to the people (according to the 10th amendment).
This is the problem. The fourteenth Amendment GUTTED the 10th. This was NOT on accident(IMO). It was loaded with good stuff while harming existing provisions.
It didn't need to. The 10th was stillborn.
Religious freedom is an entitlement to US citizens and one to be respected regardless of the religion. However, there is a fine line in religion where extremist and fanatics take over to achieve a not always admirable position.
When sedition begins to cloud religion leaving just a religious front and the intentions turn to causing damage and destruction in the name of said religion then the processes of treason begin. When quiet battles erupt between religions for the sake of religion we end up having quiet little wars under the guise of religious freedom.
While I am all for each to their own, I am very well aware that small gestures that are considered just controversial can erupt into bigger problems.
Each person's faith, regardless of the faith, is a relationship between them an their god. No government of any sort should ever interfere with that relationship unless it crosses the lines and becomes redefined.HUBBERS
The argument is not about freedom of religion but the CONSTRUCTION of a religious structure in a sensitive location near a historical event- 911. The two are not the same for comparison. The Constitution protects one and city regulations enforce the other.the argument IS about freedom of religion and the federal level. It's either that, or just simply property rights. Either way, because the OP is discussing Obama, then whatever it is, it's about the federal level of government.
Obama has NO power to do ANYTHING in this situation - reread article 2 of the Constitution.
Then, read amendment 1 and article 1 to see that CONGRESS has no power.
Then look through Article 3 to see that THE SUPREME COURT has no power.
Then look at Amendment 10 to see that it is 100% a state decision to allow the building to be built.
I would imagine that, at this point, it would be pretty much suicide for the people to build the darn mosque, but... whatev.Evan G Rogers
'' it is 100% a state decision to allow the building to be built.''
THE CITY controls the zoning and the right to approve or deny the project.If the city had a public hearing as they should have done, many of the questions being asked today would have given the people their say before the city made their decisions.
Let's not be naive, political behind the scenes activity was involved from all levels of government.The city did have a public hearing. Members from the local community came and some voiced their opposition.
Ok
Enough
I have used up one of my priviliged access swipe cards to one of the God's.
I have explained this debate and this is what he has suggested.
Build the Community Cente (see even this god didn't call it a mosque)
Let the builders be muslims as they have the plans which means of course that Allah is the architect and project manager.
the electricians be Hindu's
the plumbers be sikhs
the roofers be jewish
the security be buddhists (non violent or aggressive)
the christians provide the labour
the rastafarians run the canteen
the scientologists can negotiate the contracts
All other religions not mentioned above will be placed on the temporary labor list and offered work when it arises.
Any disputes wil be handled by the God I have access to (on this project my God is acting as an independent advisor) but there will be no board meetings and no fact to face discussions and definately no lawyers.Let's see. The builders will throw bricks and do suicide bombings against the jewish roofers, while the Hindis and Sikhs bash, and whip each other with plumbing fixtures and heavey gauge wiring, while the christians run around telling everyone else they are doing their jobs all wrong, the rRastas are so high, they forgot where they left the key to the front door, and if Tom Cruise is one of the negotiators, he must be FULLY medicated. And most other than Islamics will disagree as to what to call the architect. Throw in some Iranians and Pakistanis and I'm sure we can manage a nuclear exchange.
There should be religious freedom to the limit of not hurting other religions.. Religious fanatics deserve no freedom.
- sandra rinckposted 14 years ago
0Too bad we cannot change it to, "Freedom from religion."
Certainly. It protects Christians from being forced to convert to another sect or another religion entirely.
Recall that in England during the 1400's, 1500's, and 1600's there were bloody purges and imprisonments based on what sect of Christianity the current King of England was.
That's the entire reason the Founding Fathers put in the 'wall.' It was to prevent the blood of religious strife from staining our shores.
Consider the bloody fighting of Shia and Shiite in Iraq. Consider the depredations of the Taliban in Afghanistan.
Sectarian warfare was part of the 'Troubles' in Ireland and the 'marches' and 'counter marches' of the Catholics and the Protestants.
There is nothing like "freedom of religion". Freedom is meant for free movement in everything including religion. We can offer religious freedom to all those who reciprocate in their own areas. To those who speak differently in their area and differently in our area, there should be no freedom of religion.
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