Debra writes
Quote:I didn't invent First Amendment jurisprudence. Why don't you read the Supreme Court cases (starting with the one that I posted yesterday) and then apply the law to the facts in the three instances you mention. You should be able to determine for yourself whether the First Amendment has been violated.
But....but.....if the whole premise of the CRA is that court cases have been decided wrongly, wouldn't looking to Supreme Court rulings in this case be sort of like looking to the fox for a ruling on chicken thievery?
There is no suggestion in the CRA that employees can violate company rules or decorum or be disruptive in the workplace in order to praise God any more than they can do that to praise the Lakers. Nor is there any suggestion that the Constiution be dismantled.
The entire premise of the CRA is this:
If Congress cannot make a law restricting states from the acknowledgment of God under the First Amendment, how can the Supreme Court enforce a law which Congress cannot make?
And Debra, your arguments are well stated as always, but I am resisting what I think is your definition of 'establishment of religion'.
Given §3501's express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda. See also Davis v. United States, 512 U. S. 452, 464 (1994) (Scalia, J., concurring) (stating that, prior to Miranda, "voluntariness vel non was the touchstone of admissibility of confessions"). Because of the obvious conflict between our decision in Miranda and §3501, we must address whether Congress has constitutional authority to thus supersede Miranda. If Congress has such authority, §3501's totality-of-the-circumstances approach must prevail over Miranda's requirement of warnings; if not, that section must yield to Miranda's more specific requirements.
The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. Carlisle v. United States, 517 U. S. 416, 426 (1996). However, the power to judicially create and enforce nonconstitutional "rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress." Palermo v. United States, 360 U. S. 343, 353, n. 11 (1959) (citing Funk v. United States, 290 U. S. 371, 382 (1933), and Gordon v. United States, 344 U. S. 414, 418 (1953)). Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. Palermo, supra, at 345-348; Carlisle, supra, at 426; Vance v. Terrazas, 444 U. S. 252, 265 (1980).
But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 517-521 (1997). This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction. . . .
. . . Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, 526 U. S. 314, 331-332 (1999) (Scalia, J., dissenting) (stating that the fact that a rule has found " `wide acceptance in the legal culture' " is "adequate reason not to overrule" it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e.g., Patterson v. McLean Credit Union, 491 U. S. 164, 173 (1989), we do not believe that this has happened to the Miranda decision. . . .
In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda ourselves.
The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say - that the people's religious [beliefs] must not be subjected to the pressures of government for change each time a new political administration is elected to office.
If the whole premise of the CRA is that court cases have been decided wrongly . . . and the purpose of the CRA is to legislatively supercede or overrule Supreme Court decisions . . . then the CRA itself is unconstitutional. The only way CRA would have any force or effect is if Congress can somehow dismantle the constitution and usurp authority it does not have.
I'm not intentionally being obtuse here Debra. But as we established elsewhere, you and I look at judicial activism differently with me seeing it as much more of a problem than you thus far have indicated, as nearly as I can tell.
And I am neither arguing nor summarily dismissing your excellent arguments here. With each exchange I am learning something, but I am nowhere near ready to convict these people who advocate the CRA, or something like it, of having any intention of dismantling the constiution. I rather see them as being convinced others are slowly chipping away at it with the net effect that it is no longer the document that it was and, in effect, is slowly being dismantled.
Joe is trying his best to make this an issue of religious fanaticism, but I'm just not seeing that in this case. I see this as a case of people who are just tired of being pushed in ways they believe to be wrong. You (and others) of course disagree with them and believe the constitution has been protected and rightly interpreted, and if the CRA advocates prevail, the Constitution will be harmed, if not destroyed.
Your argument has been consistent that the court has judged according to the constitution in all its rulings, and the Court can declare any other opinions to be illegal.
And that leaves the rest of us wondering how that does not make the Supreme Court a king with little or no checks and balances on what it can do, legal or illegal? Of course the people can rise up, have the king beheaded, and install a new one with hopes it will be better. But surely there is a less destructive way to deal with it.
Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 1 Cranch 137, 176 (1803).
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The design of the Fourteenth Amendment has proved significant also in maintaining the traditional separation of powers between Congress and the Judiciary. The first eight Amendments to the Constitution set forth self executing prohibitions on governmental action, and this Court has had primary authority to interpret those prohibitions. . . .
As enacted, the Fourteenth Amendment confers substantive rights against the States which, like the provisions of the Bill of Rights, are self executing. Cf. South Carolina v. Katzenbach, 383 U.S., at 325 (discussing Fifteenth Amendment). The power to interpret the Constitution in a case or controversy remains in the Judiciary.
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If Congress could define its own powers . . . no longer would the Constitution be "superior paramount law, unchangeable by ordinary means." It would be "on a level with ordinary legislative acts, and, like other acts, . . . alterable when the legislature shall please to alter it." Marbury v. Madison, 1 Cranch, at 177. Under this approach, it is difficult to conceive of a principle that would limit congressional power. . . . Shifting legislative majorities could change the Constitution and effectively circumvent the difficult and detailed amendment process contained in Article V.
Advocates of the CRA believe the Courts have violated the First Amendment. Opponents believe the CRA would violate the Constitution in general. I haven't cast my vote yet one way or the other.
Joe,
I would not take exception to it because I dont fear religion, unlike some people on here.
I would raise my kids to respect ALL religions,and to decide for themselves what they want.
They would be exposed to all religions,and if they wanted to practice any particular faith,I would let them.
EVERY religion has something to teach us,if we care to learn.
mysteryman wrote:Joe,
I would not take exception to it because I dont fear religion, unlike some people on here.
I would raise my kids to respect ALL religions,and to decide for themselves what they want.
They would be exposed to all religions,and if they wanted to practice any particular faith,I would let them.
EVERY religion has something to teach us,if we care to learn.
How about the Westboro Baptist Church, MM?
Their homepage banner says, "God Hates Fags".
What can they teach us? Would you like the address so you can send your kids to one of their bible camps?
I said all religions,not all religious people or churches.
Have you read Men in Black? Or are the courts so sacrosanct, that it is sinful to closely scrutinize, let alone criticize them?
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
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There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.
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It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter [the legislature] within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people [as set forth in the Constititution] to the intention of their agents [as set forth in ordinary legislation].
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [as set forth in the Constitution] is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter [the Constitution] rather than the former [ordinary legislation]. They ought to regulate their decisions by the fundamental laws [the Constitution], rather than by those which are not fundamental [ordinary legislation].
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If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.
Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.
But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.
This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.
That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.
Debra,
Where in the federalist papers or the constitution does it give the judiciary the power or authority to "find" rights that do not exist in the Constitution?
BTW,according to what you posted,the courts did not have the authority to rule on Roe v Wade,because it did not come from the legislature.
BTW,according to what you posted,the courts did not have the authority to rule on Roe v Wade,because it did not come from the legislature.
The Constitution may not be construed as an enumeration of rights that would deny or disparage other rights retained by the people. When we formed government--we did not surrender all inalienable rights to government only to have a few granted back to us via the Constitution. We created government to SECURE all of our retained, inalienable rights. Where in the Constitution does it say the people do NOT have the right to privacy?
I would not take exception to it because I dont fear religion,unlike some people on here.
I would raise my kids to respect ALL religions,and to decide for themselves what they want.
They would be exposed to all religions...
.....and if they wanted to practice any particular faith,I would let them.
EVERY religion has something to teach us,if we care to learn.
Debra_Law wrote:The Constitution may not be construed as an enumeration of rights that would deny or disparage other rights retained by the people. When we formed government--we did not surrender all inalienable rights to government only to have a few granted back to us via the Constitution. We created government to SECURE all of our retained, inalienable rights. Where in the Constitution does it say the people do NOT have the right to privacy?
In all of the debates I have encountered on this issue, both in the broader public and here on A2K, this is the first time I have seen this point presented. But then maybe I'm not paying attention. But the revers of that point, that if it is not in the Constitution then you don't have it, seems to encapsulate the current conservative complaint against the judiciary and current law in general. Debra's point should be repeated again and again.
Also Joe Nation, thank you for you clear and forthright posting.
It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the PETITION OF RIGHT assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ORDAIN and ESTABLISH this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights. . . .
