Judicial Watch Asks Court To Declare Filibusters Unconstitutional For The Purpose Of Preventing Confirmation Of Judicial Nominees
Walter Scott
Larry Klayman and his Judicial Watch have sued the U.S. Senate --
asking that the practice of using a filibuster to prevent the
confirmation of a judicial nominee be declared unconstitutional as
well as that a ban be ordered on such process. Klayman argues that
"the idea is to put an end to the subversion of the Constitution by
both political parties when it comes to nominating and confirming
judges." Klayman also contends "it's unconstitutional because the
framers of the Constitution did not intend 60 votes for confirmation,
and that's what we have here." Klayman's reference to "60 votes"
pertains to the fact it would take 60 votes, of which Republicans can
muster only 51, to end a filibuster. So, is this sour grapes, or does
Klayman have a good point? Democrats say no, and point out that
Klayman's cause is not new while similar cases have never been
successful.
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http://www.washingtonpost.com/wp-dyn/articles/A60664-2003May15.html
Group Sues Senate Over Filibuster
By JESSE J. HOLLAND
The Associated Press
Thursday, May 15, 2003; 5:43 PM
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WASHINGTON (Reuters) The United States is sending 24 B-1 and B-52
bombers to the island of Guam in the Western Pacific to deter.. 3-4-03
Pope Dilbert
"Walter Scott" <74276_...@COMPUSERVE.COM> wrote in message
news:ba1841$336$1...@ngspool-d02.news.aol.com...
>
> Larry Klayman and his Judicial Watch have sued the U.S. Senate --
> asking that the practice of using a filibuster to prevent the
> confirmation of a judicial nominee be declared unconstitutional as
> well as that a ban be ordered on such process. Klayman argues that
> "the idea is to put an end to the subversion of the Constitution by
> both political parties when it comes to nominating and confirming
> judges." Klayman also contends "it's unconstitutional because the
> framers of the Constitution did not intend 60 votes for confirmation,
> and that's what we have here." Klayman's reference to "60 votes"
> pertains to the fact it would take 60 votes, of which Republicans can
> muster only 51, to end a filibuster. So, is this sour grapes, or does
> Klayman have a good point? Democrats say no, and point out that
> Klayman's cause is not new while similar cases have never been
> successful.
Judicial Watch:
" As a non-partisan, non-profit foundation based in Washington, D.C., and
with offices throughout the country, Judicial Watch relies on supporters,
like yourself, to help us root out corruption in our government and to make
sure offenders are brought to justice. "
Then why are, in its case files, the vast majority of them against Clinton
and/or people in the Clinton administration?
Non-partisan ...... Bull Shit!
BTW .... apparently Larry Klayman doesn't know his ass from a hole in the
ground.
It is the Supreme Court .. and NOT the Senate, that declares something
unconstitutional!
It's not only sour grapes, but it's typical conservative republican
fraudulent propaganda and lies!
Kaptain Kwagmire(Shea F. Kenny)
No matter what any court says, they can do as they please. Legally.
Politically however they may stop this non-sense because of
such a ruling and simply put the nominees up to a vote.
It's non-sense because the only reason for them to not approve
of an appointment is incompetence, not whether or not they approve of
how they might rule in a given case.
Courts, are about upholding the rule of law, not politics. If
Congress wants to politicize judicial appointments, then perhaps they
should change the constitution and require judges to be elected.......
--
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\__/
Walter Scott
Not meaning to defend Larry Klayman in any sense but intending to
correct the record: Pope Dilbert contends that "it is the Supreme
Court, and NOT the Senate, that declares something unconstitutional."
While Pope Dilbert's observation is accurate in part, one should note
that lower federal courts can make a finding of constitutionality or
lack thereof. The matter, of course, might be appealed as far as the
U.S. Supreme Court where ultimate authority resides. I've seem no
indication that Klayman asserts the Senate alone may decide or
declare that which is or isn't constitutional. In other words: Larry
Klayman argues filibustering used to prevent confirmation of judicial
nominations is unconstitutional and seemingly, although I can't
determine for certain, asks for declaratory relief from a U.S.
federal district court in the form of a ruling that filibustering for
the purpose of preventing the confirmation of judicial nominations,
save for a 60-vote filibuster override, is unconstitutional. The
decision, if it came in Klayman's favor, would be delivered by a
federal district court, not by the U.S. Senate. How Klayman and
Judicial Watch would or actually have standing in this matter is not
explained in the one press report I've seen thusfar. Ergo, I haven't
a clue for whom Klayman pleads a cause and with what standing to do
so.
Kaptain Kwagmire(Shea F. Kenny)
<74276_...@COMPUSERVE.COM> wrote:
>one should note
>that lower federal courts can make a finding of constitutionality or
>lack thereof.
And where Walter do such courts or even the Supreme Court, get
such power?
--
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Jim Lovejoy
news:rhf8cv8r2h910hms8...@4ax.com:
Because of course, no President, Democratic or Republican would *think* of
politicizing judicial appointments, right?
Kaptain Kwagmire(Shea F. Kenny)
>Because of course, no President, Democratic or Republican would *think* of
>politicizing judicial appointments, right?
So what? The President has CONSTITUTIONAL authority to make
appointments. Congress has the burden of proving incompetence. Period.
However, they can CHOOSE to oppose on political bases.
There's no constitutional prohibition.
But, it's clearly political and has nothing to do with
competence.
--
/\
\__/
Jim Lovejoy
> On 16 May 2003 02:51:34 GMT, Jim Lovejoy <ji...@ix.netcom.com> wrote:
>
>>Because of course, no President, Democratic or Republican would
>>*think* of politicizing judicial appointments, right?
>
> So what? The President has CONSTITUTIONAL authority to make
> appointments. Congress has the burden of proving incompetence. Period.
Congress has the burden of proving incompetence?
I missed that part of the Constitution.
The President has the Constitutional authority to make appointments.
Congress has the Constitutional authority to refuse to confirm.
>
> However, they can CHOOSE to oppose on political bases.
> There's no constitutional prohibition.
>
> But, it's clearly political and has nothing to do with
> competence.
>
So what if it has nothing to do with competence? It's as much congress's
Constituional Authority to refuse to confirm based on politics, as it's the
President's Constitutional perogitive to appoint based on politics.
To say that one would politize the process and the other would not is
simply non-sensical.
Jeffrey Turner
Has Klayman READ the Constitution? Article I, Section 5, paragraph 2:
Each house may determine the rules of its proceedings...
Sounds pretty clear cut to me.
--Jeff
Walter Scott
I think it's time for Kaptain Kwagmire (AKA Shea F. Kenny) to toddle
off and read his copy of the U.S. Constitution. That's *IF* the "Kaptain"
isn't "playing dumb."
Clave
news:zFZwa.1998$%8.1...@nwrddc04.gnilink.net...
>
> >>It's not only sour grapes, but it's typical conservative republican
> >>fraudulent propaganda and lies!
> >
> > nominees, and even to a greater extent (the GOP put "secret holds" on
> > around 60 of his nominees).
> >
> > Vacancies on the federal bench are now at their lowest in 13 years after
> > being at a record high when Clinton left office.
> >
> > They just expect the other side to "play nice" and "change the tone" all
> > of a sudden now that they're in control so they can get 100% of everything
> > they want -- even after 8 continuous years of the ruthless partisanship
> > and scurrilous crap that they hammered Clinton with.
>
> The partisanship was initialed by Bill and Hillary Clinton,
> not the republicans...
Document, please.
Jim
DJ
> " As a non-partisan, non-profit foundation based in Washington, D.C., and
> with offices throughout the country, Judicial Watch relies on supporters,
> like yourself, to help us root out corruption in our government and to make
> sure offenders are brought to justice. "
>
> Then why are, in its case files, the vast majority of them against Clinton
> and/or people in the Clinton administration?
>
> Non-partisan ...... Bull Shit!
>
I've been following the news and cases on judicial watch for a while
and I noticed that too. It is interesting to note when they started.
They did have one suit against Cheney to get the files for the
National Energy meeting which the administration refused to release,
but they dropped it. With what I have seen, I would not call them
non-partisan, and I have written to them to tell them just that on
several occasions, showing specific examples. I have never received a
response --- and I was even polite :-) Tom Fitton is the President
and some of the stuff I've read and seen him on, confirms what we have
already concluded. I would not use judicial watch if I wanted a truly
non-partisan source. There slogan sounds neat, but it is only
words...
DJ
--
Kaptain Kwagmire(Shea F. Kenny)
>"Kaptain Kwagmire(Shea F. Kenny)" <pent...@worldnet.att.net> wrote in
>news:cel8cv04oi6088kau...@4ax.com:
>
>> On 16 May 2003 02:51:34 GMT, Jim Lovejoy <ji...@ix.netcom.com> wrote:
>>
>>>Because of course, no President, Democratic or Republican would
>>>*think* of politicizing judicial appointments, right?
>>
>> So what? The President has CONSTITUTIONAL authority to make
>> appointments. Congress has the burden of proving incompetence. Period.
>
>Congress has the burden of proving incompetence?
>
>I missed that part of the Constitution.
Great. Upon what basis? Their political views? THAT'S
un-constitutional. Otherwise, you're left only with competence.
>
>The President has the Constitutional authority to make appointments.
>Congress has the Constitutional authority to refuse to confirm.
>
>>
>> However, they can CHOOSE to oppose on political bases.
>> There's no constitutional prohibition.
>>
>> But, it's clearly political and has nothing to do with
>> competence.
>>
>So what if it has nothing to do with competence? It's as much congress's
>Constituional Authority to refuse to confirm based on politics, as it's the
>President's Constitutional perogitive to appoint based on politics.
>
>To say that one would politize the process and the other would not is
>simply non-sensical.
Only in vapid theory. In practical theory what you have is the
real time practicality of appointing a judge or judges. Here the
president presents the appointee, and their qualifications. Ie,
experience on the bench.
Now, what else could politicize the nomination other than the
other political party bringing up political issues as a means of
opposing the appointment?
Thus, it's the opposition's job to look through that
individual's record and show he or she doesn't understand the cases
they judged or the law, etc., and that provides the only grounds to
not appoint.
It's simply not fair to the president's appointee to judge him
or her by their politics.
It's totally "un-fair" that congress has no say in what the
politics of an appointee should be, but maybe they should have worked
harder to get their candidate elected and their judges
appointed.......
--
/\
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Kaptain Kwagmire(Shea F. Kenny)
<74276_...@COMPUSERVE.COM> wrote:
>
>I think it's time for Kaptain Kwagmire (AKA Shea F. Kenny) to toddle
>off and read his copy of the U.S. Constitution. That's *IF* the "Kaptain"
>isn't "playing dumb."
Show me where the constitution gives ANY court the power to
determine the constitutionality of any issue.
Secondly, Article III SPECIFICALLY authorized Congress to
except the court and regulate the court in terms of the cases it's
ALLOWED to hear. Thus, Congress is SUPERIOR to any court and ALL
courts are INFERIOR to Congress.
Next?
--
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Walter Scott
The "Kaptain" notably has not provided cites and quotes to support his/her
assertion "Congress is SUPERIOR to any court and ALL courts are
INFERIOR to Congress." Article I, Section 8, clause 9 of the U.S.
Constitutions commands that Congress shall have the power to "constitute
tribunals INFERIOR to the Supreme Court." (emphasis added)
~~~~~~~~
Article 3, Section 1 states that "the judicial power of the United
States shall be vested in one Supreme Court, and in such INFERIOR
courts as the Congress may, from time to time, ordain and ~~~~~~~~
establish. (emphasis added)
Article 3, Section 2 decrees that "the judicial power shall extend to
all cases, in law and equity, arising under this CONSTITUTION .... "
(emphasis added) ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
While Article 3, Section 2 also states that "the Supreme Court shall
have appellate jurisdiction, both as to law and fact, with such
exceptions, and under such regulations as the Congress shall make,"
this clause does not trump the clear edict of the framers that "all
cases, in law and equity, arising under this Constitution," are the
province of the U.S. Supreme Court. Congress has the power to
regulate the structure of the federal courts as well as rules of
procedure. However, Congress cannot prevent, override or reverse
decisions of the U.S. Supreme Court as to constitutionality of law
and regulation throughout the United States. See Marbury v. Madison
(1803).
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137
It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule
to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts
must decide on the operation of each. [5 U.S. 137, 178] So if
a law be in opposition to the constitution: if both the law
and the constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the
constitution, disregarding the law: the court must determine
which of these conflicting rules governs the case. This is of
the very essence of judicial duty.
If then the courts are to regard the constitution; and the
constitution is superior to any ordinary act of the
legislature; the constitution, and not such ordinary act,
must govern the case to which they both apply.
Those then who controvert the principle that the constitution
is to be considered, in court, as a paramount law, are
reduced to the necessity of maintaining that courts must
close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all
written constitutions. It would declare that an act, which,
according to the principles and theory of our government, is
entirely void, is yet, in practice, completely obligatory. It
would declare, that if the legislature shall do what is
expressly forbidden, such act, notwithstanding the express
prohibition, is in reality effectual. It would be giving to
the legislature a practical and real omnipotence with the
same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that
those limits may be passed at pleasure.
Pope Dilbert
I'd show you ... but you'd have to convince me of something that is not
obvious in your posts - and education past the third grade!
Perhaps you should have your second grade teacher read, and explain, the
words and meanings to you!
Jim Lovejoy
> On 16 May 2003 03:23:34 GMT, Jim Lovejoy <ji...@ix.netcom.com> wrote:
>
>>"Kaptain Kwagmire(Shea F. Kenny)" <pent...@worldnet.att.net> wrote in
>>news:cel8cv04oi6088kau...@4ax.com:
>>
>>> On 16 May 2003 02:51:34 GMT, Jim Lovejoy <ji...@ix.netcom.com>
>>> wrote:
>>>
>>>>Because of course, no President, Democratic or Republican would
>>>>*think* of politicizing judicial appointments, right?
>>>
>>> So what? The President has CONSTITUTIONAL authority to make
>>> appointments. Congress has the burden of proving incompetence.
>>> Period.
>>
>>Congress has the burden of proving incompetence?
>>
>>I missed that part of the Constitution.
> Great. Upon what basis? Their political views? THAT'S
> un-constitutional. Otherwise, you're left only with competence.
Again, I missed that part of the Constitution. Would you please give the
article number and section where the Constitution declares "Congress shall
make no determination of nominee's political views when voting to reject or
accept appointments."
Without a reference to the part of the constitution that declares it
unconstitutional, you are just blowing smoke.
Kaptain Kwagmire(Shea F. Kenny)
>Without a reference to the part of the constitution that declares it
>unconstitutional, you are just blowing smoke.
>
You mean mr scholar you have no concept of the 1st ammendment?
And that the government cannot discriminate on the basis of political
affiliation? Gender? Race?
--
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\__/
Kaptain Kwagmire(Shea F. Kenny)
<74276_...@COMPUSERVE.COM> wrote:
>While Article 3, Section 2 also states that "the Supreme Court shall
>have appellate jurisdiction, both as to law and fact, with such
>exceptions, and under such regulations as the Congress shall make,"
>this clause does not trump the clear edict of the framers that "all
>cases, in law and equity, arising under this Constitution," are the
>province of the U.S. Supreme Court.
Walter. Learn how to read. If Congress EXCEPTS cases, then
the court may not hear those cases. If Congress REGULATES the hearing
of cases, then the court must obey those regulations.......
Clause 2: In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction. (READ FROM HERE)
>>
In all the other Cases before mentioned, the supreme Court shall have
appellate Jurisdiction, both as to Law and Fact, with such Exceptions,
and under such Regulations as the Congress shall make. <<
What this means is court has original jurisdiction in those
cases such as Ambassadors, other public ministers, etc., but may be
regulated by Congress as to the cases previously mentioned.
So, IT DOES trump the fact.....
--
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Kaptain Kwagmire(Shea F. Kenny)
wrote:
>Perhaps you should have your second grade teacher read, and explain, the
>words and meanings to you!
Keep your own counsel laddo.....;-)
--
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Walter Scott
The "Kaptain" makes an assertion as to jurisdiction of the U.S.
Supreme Court to decide constitutionality of legislated law with
nothing provided in support. To state that "what this means" without
presentation of a reasonably logical argument as well as cites and
quotes supporting and relating to the "Kaptain's" assertion on "what
this means" is vacuous and, in effect, meaningless.
The "Kaptain's" logic, unreasonable and being dichotomous from
Marbury v. Madison as it is, contends that, as the "Kaptain" puts it,
Congress "DOES trump the fact" of, as I put it, "the clear edict of
the framers that `all cases, in law and equity, arising under this
Constitution,' are the province of the U.S. Supreme Court." How so?
Article 3, Section 2 -- not "clause 2," as the "Kaptain"
mis-identifies it, declares that Congress, "with such Exceptions, and
under such Regulations" as it shall make, controls the manner of
appellate jurisdiction but not the fact of jurisdiction to resolve
constitutionality of law, as in the means by which a case traverses
the appellate process is controlled by Congress where the
constitutionality of law is in question and that question would rise
to the U.S. Supreme Court for review while jurisdiction for the U.S.
Supreme Court itself is not controlled by Congress as to that question.
In other words: Congress can and does make rules for how one
initiates and carries through an appeal on questions of
constitutionality but cannot decide whether someone has the right of
appeal or whether a federal court, particularly the U.S Supreme
Court, has the jurisdiction to hear their appeal absent violation of
the regulations Congress may impose on the PROCESS of such an appeal.
Congress controls the PROCESS of jurisdiction on constitutional
questions of law but NOT jurisdiction itself.
In regard to the "Kaptain's" admonishment that I should "learn how to
read:" those words are turned back on the "Kaptain" with particular
focus on Marbury v. Madison. If the "Kaptain" can refute the court's
opinion in that case, then the "Kaptain" should do so.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137
Finally: even if the "Kaptain" had a point, it's eviscerated by the
fact that, ever since Marbury v. Madison was decided in 1803,
Congress has never successfully questioned and then removed the U.S.
Supreme Court's obligation and right to decide whether a given law is
constitutional. So, by default and under whatever circumstance, the
Congress has long ago accepted the basic concepts offered in Marbury.
Would it choose to gain for itself the capacity of deciding for
itself that its laws are or are not constitutional by simply denying
the U.S. Supreme Court jurisdiction to resolve the question? I doubt
it. That action would be far too toxic -- even for a highly partisan
Congress.
Kaptain Kwagmire(Shea F. Kenny)
Constitution is clear about the creation of two DISTINCT
jurisdictions. One, original and two, appellate. Thus, there must be
by default two different functions. What other courts have said and
what other constitutions say, is ir-relevant to what our Constitution
ACTUALLY says.
Furthermore, to determine "what is the law" does not mean any
court has any powers to overturn law. Nor do any arguments that say a
court SHOULD be able to overturn law. The Constitution does not SAY
any court has any power to overturn law.
In addition, many of the founders were bitterly opposed to
having a supreme court. They of course feared rule by the bench and
not the representation.
So, the very reason the court has no power to overturn law
lies in the very fact that if the people oppose a law, they simply
elect those that will change it. And MUST elect those that will
change it or suffer their own tyranny.
Now let's have some real fun since it's obvious people are
going to read interpretations rather than simple and obvious fact.
Let's say a conservative congress rams through an exception to
abortion cases. The Supreme Court could no longer hear appeals rising
from abortion laws.
Shocked awed? Well, Washington state citizens have little to
worry about since they enacted the first repeal of abortion laws in
the country, by initiative.
Other states would have to rely either on the same process or
their supreme court, if it was allowed to overturn law.
Another aspect of this is the Supreme Court should not be
allowed to hear state cases, except those where Congress is allowed to
make law, and those rising between states and such. Where states have
a right to make their own laws without regard to the Constitution, the
court should be prohibited from hearing appeals.....
--
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Kaptain Kwagmire(Shea F. Kenny)
<74276_...@COMPUSERVE.COM> wrote:
>http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&page=137
And incidentally, this "case" has more to do with the
appointment and commission of a damned justice of the peace, and not
the question at hand.
Although admittedly the "judge" goes into these issues, it
wasn't necessary. It's the proverbial, "stretch"...... And more than
just a bit.....
I positively guarantee you that you bring into any court, any
contract, you'll be held to the LETTER of that contract, not what
should have been, would have been, could have been, or wanted to have
been.......
--
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William R. Cowan
excellent post!! The case Citation was on the mark! Any one who has
any Government Class would recognize this case.
MRC
William R. Cowan
Kaptain Kwagmire(Shea F. Kenny) wrote:
> Well, I of course don't care what other courts have said. The
> Constitution is clear about the creation of two DISTINCT
> jurisdictions. One, original and two, appellate. Thus, there must be
> by default two different functions. What other courts have said and
> what other constitutions say, is ir-relevant to what our Constitution
> ACTUALLY says.
That court that spoke on this issue was the Supreme Court, not just any
court.
>
> Another aspect of this is the Supreme Court should not be
> allowed to hear state cases, except those where Congress is allowed to
> make law, and those rising between states and such. Where states have
> a right to make their own laws without regard to the Constitution, the
> court should be prohibited from hearing appeals.....
>
>
> --
> /\
> \__/
States do not have the right to make law without regard to the
Constitution. The state law can not infringe on the duties and powers
set aside for the federal Government and it can not violate any of the
Bill of Rights. Just FYI, Federal Courts do not like getting involved
in state cases even on the grounds of violation of the Bill of Rights
unless any challenge has been exhausted regarding violation of the
states bill of rights. Federal COurts have even said that Texas's Bill
of Rights is stronger than the Constitutions.
MRC
whitster
William R. Cowan <wrco...@hal-pc.org> wrote in message
news:3EC84B...@hal-pc.org...
of course it is. that's true of all states i'm aware of (haven't read all
the state cons, but many of them.) since a state, as you say, can't
recognize less rights than the feds, it (unless it recognizes the EXACT same
rights to the exact same extent as the feds) must by default recognize more,
and thus offer stronger protections.
Washington, btw, is MUCH stronger than the fed. constitution.
whit
>
> MRC
>
>
Lawson English
I forget what it is called, but there's a principle that completely
unreasonable agreements in a contract are automatically void when challenged
in court, regardless of what was signed.
What is or isn't completely unreasonable is not explicitly defined, of
course.
whitster
Lawson English <engl...@mindspring.com> wrote in message
news:baackv$b8i$2...@slb4.atl.mindspring.net...
well, yes. also, one can't contract (with some exceptions - such as
military service) one's rights away. for example, you can sign a contract
making you a slave for life to person X. however, that contract would be
invalid.
whit
Walter Scott
The "Kaptain's" admission that he/she/it/they "don't care" is
probably the overriding operative priority for the "Kaptain" or is a
priority which he/she/it/they pretend to hold and not just as to what
"other courts have said." The "Kaptain's" lack of knowledge or
feigned lack of knowledge is key to why the "Kaptain" is dismissed
from this quarter as not knowing what one should know to discuss
relevant issues or because he/she/it/they have no intention of
discussing them seriously.
Kaptain Kwagmire(Shea F. Kenny)
<wrco...@hal-pc.org> wrote:
>States do not have the right to make law without regard to the
>Constitution. The state law can not infringe on the duties and powers
>set aside for the federal Government and it can not violate any of the
>Bill of Rights. Just FYI, Federal Courts do not like getting involved
>in state cases even on the grounds of violation of the Bill of Rights
>unless any challenge has been exhausted regarding violation of the
>states bill of rights. Federal COurts have even said that Texas's Bill
>of Rights is stronger than the Constitutions.
See? This is the problem. All state constitutions MUST
recognize the Federal constitution as the SUPREME LAW OF THE LAND.
So, it doesn't matter if a given state's BOR is stronger or
not. It must conform to the federal. Period.
--
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Kaptain Kwagmire(Shea F. Kenny)
<74276_...@COMPUSERVE.COM> wrote:
>The "Kaptain's" admission that he/she/it/they "don't care" is
>probably the overriding operative priority for the "Kaptain" or is a
>priority which he/she/it/they pretend to hold and not just as to what
>"other courts have said." The "Kaptain's" lack of knowledge or
>feigned lack of knowledge is key to why the "Kaptain" is dismissed
>from this quarter as not knowing what one should know to discuss
>relevant issues or because he/she/it/they have no intention of
>discussing them seriously.
No. You have no intention, nor any ability. Any first year
contract law student can tell you, a contract is a contract. If it's
not in the contract, then you're not entitled........
--
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Kaptain Kwagmire(Shea F. Kenny)
<engl...@mindspring.com> wrote:
>I forget what it is called, but there's a principle that completely
>unreasonable agreements in a contract are automatically void when challenged
>in court, regardless of what was signed.
Sigh.. That's not what we're talking about hon.........
--
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Kaptain Kwagmire(Shea F. Kenny)
<wrco...@hal-pc.org> wrote:
>excellent post!! The case Citation was on the mark! Any one who has
>any Government Class would recognize this case.
Sure. On the mark perhaps as to what SHOULD BE. Or could be.
Or woulda be.
It's not in the damned document.
What IS in the document is that congress can slap the wrist of
the court and prevent it from hearing any case it chooses........ For
any reason.........
--
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Lawson English
Rights are seen as minimum standards guaranteed. If a state choses to grant
the right to dance nakkid on sundays, the fact that the Constitution doesn't
innumerate this right doesn't matter.
Kaptain Kwagmire(Shea F. Kenny)
<engl...@mindspring.com> wrote:
>Rights are seen as minimum standards guaranteed. If a state choses to grant
>the right to dance nakkid on sundays, the fact that the Constitution doesn't
>innumerate this right doesn't matter.
>
Seen by whom?
The Constitution doesn't mention dance, nudity or community
standards.....
Next?
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Lawson English
Er, yeah
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
Amendment X
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.
whit
that is correct.
let me make this simple for all involved.
the federal constitution recognizes a set of rights.
any state cannot take away protection of any right recognized within the
federal constitution
however...
any state can recognize additional rights in their constitution (and
interpretation of their constitution). there are numerous examples of this.
since ALL federally recognized rights cannot be infringed by the states, it
is pretty much a given that most, if not all states, recognize at least SOME
additional rights either explicitly outlined in their constitution, or
determined by their state courts through review of their state constitution.
one simple example. privacy. nowhere mentioned as a recognized federal
right. however, the RIGHT to privacy is specifically mentioned in the state
constitution.
this has ramifications. WA supreme court has held that due to OUR state
constitution, WA state citizens have a 'higher' expectation of privacy in re
search and seizure than that recognized by the federal constitution. SO,
the law regarding state agents (state of WA) is more restrictive in regards
to search and seizure than comparable federal law. state agents, unless
they are working as part of a federal task force and working federal cases,
are more restricted then, in their ability to search and seize, than federal
agents.
a state could recognize a right to dance naked in public. absolutely. i am
not aware that any DO, but they could.
whit
>
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Walter Scott
Whitster offers the proposition that "any state can recognize
protection of any right recognized within the federal constitution."
Under this concept, according to Whitster, a state could, for
example, "recognize a right to dance naked in public." Buttressing
the idea is the content of a previous posting in which the 9th and
10th Amendments to the U.S. Constitution are quoted.
But how far can this go? Is it requisite of Attorney General Ashcroft
that he butt out of Oregon's assisted suicide law? Similarly, must
the Attorney General of the United States butt out of state
initiatives and referenda that legalize use of marijuana or other
federally controlled substances? Can a state declare a greater or
absolute personal right to possess and use high-end weapons of war?
(i.e. machineguns, heavy artillery and bio-chemical agents intended
for use as a WMD)
What about states that would declare polygamy to be legal, as Utah
would have had it until late in the 19th century? Could a state
declare that a newborn baby, obviously with serious birth defects,
may be "terminated" upon birth? Could a state decide and declare that
child pornography and sex between prepubescent children and adults is
legal activity? May a given state declare that meat packers,
broadcasters and truckers are no longer subject to federal regulation
within the boundaries of the state? Could a state declare that anyone
who desires the resources of federal land within the state may avail
themselves on a first come, first serve basis?
If there is a limit, beyond that which Whitster has described, what
might that limit be and why? If there is no limit, beyond that which
Whitster has described, why should not Katie bar the door?
Lawson English
Others, such as the denial of polygamy, were adopted BY Utah in order to get
accepted into the Union. Others are controversial, such as marijuana laws
forbidding medical useage.
"Walter Scott" <74276_...@COMPUSERVE.COM> wrote in message
news:bae2sj$5bh$2...@ngspool-d02.news.aol.com...
Kaptain Kwagmire(Shea F. Kenny)
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Walter Scott
In response to a list I posted of examples where or if states might
choose to amend their constitution or their laws to allow activity
not specifically prohibited by the U.S. Constitution but which runs
counter to some statutes of federal law, Lawson English states that
"some of those examples are forbidden by other parts of the
Constitution." I can only ask: what parts? Please cite and quote
the pertinent text from the U.S. Constitution, Lawson, along with the
associated example.
whitster
> Some of those examples are forbidden by other parts of the Constitution.
> Others, such as the denial of polygamy, were adopted BY Utah in order to
get
> accepted into the Union. Others are controversial, such as marijuana laws
> forbidding medical useage.
>
>
> "Walter Scott" <74276_...@COMPUSERVE.COM> wrote in message
> news:bae2sj$5bh$2...@ngspool-d02.news.aol.com...
> >
> > Whitster offers the proposition that "any state can recognize
> > additional rights in their constitution (and interpretation of their
> > constitution)"
it's not a proposition. it is a fact. any first year con law student will
say the same thing. any law professor. any DA.
while noting that "any state cannot take away
> > protection of any right recognized within the federal constitution."
> > Under this concept, according to Whitster, a state could, for
> > example, "recognize a right to dance naked in public." Buttressing
> > the idea is the content of a previous posting in which the 9th and
> > 10th Amendments to the U.S. Constitution are quoted.
> >
> > But how far can this go? Is it requisite of Attorney General Ashcroft
> > that he butt out of Oregon's assisted suicide law? Similarly, must
> > the Attorney General of the United States butt out of state
> > initiatives and referenda that legalize use of marijuana or other
> > federally controlled substances?
no. you are missing the point. a STATE can recognize additional rights.
these do not apply when the state citizen is being investigated by federal
agents. that is why federal agents are not subject to increased privacy
concerns of WA state citizens, for example. the rights only extend within
the state, to state agents. they do not extent to federal agents.
IMO, it is statist and wrong for the federal govt. to go against the 'will
of the people' in states that legalize medical marijuana for their citizens.
but, as a matter of constitutional LAW, they have that power. these rights
do not extent to federal agents.
period. and that goes for WA state's right to privacy (explicit in our
const. as well).
Can a state declare a greater or
> > absolute personal right to possess and use high-end weapons of war?
> > (i.e. machineguns, heavy artillery and bio-chemical agents intended
> > for use as a WMD)
> >
yes. but it wouldn't apply to federal enforcement agents.
> > What about states that would declare polygamy to be legal, as Utah
> > would have had it until late in the 19th century? Could a state
> > declare that a newborn baby, obviously with serious birth defects,
> > may be "terminated" upon birth? Could a state decide and declare that
> > child pornography and sex between prepubescent children and adults is
> > legal activity? May a given state declare that meat packers,
> > broadcasters and truckers are no longer subject to federal regulation
> > within the boundaries of the state? Could a state declare that anyone
> > who desires the resources of federal land within the state may avail
> > themselves on a first come, first serve basis?
> >
> > If there is a limit, beyond that which Whitster has described, what
> > might that limit be and why? If there is no limit, beyond that which
> > Whitster has described, why should not Katie bar the door?
> >
i don't have the time to teach you a course in constitutional law. i gave
you a brief oversight. as i stated, my 'proposition' is a fact, of
constitutional law. it is foundational, and it has been confirmed literally
hundreds, if not thousands of times, by case law.
spend ten minutes at a law library and look this stuff up if you are
interested. or read the WA state constitution which recognizes additional
rights (that the fed's are not restricted by)
whit
Jim Lovejoy
>
> In response to a list I posted of examples where or if states might
> choose to amend their constitution or their laws to allow activity
> not specifically prohibited by the U.S. Constitution but which runs
> counter to some statutes of federal law, Lawson English states that
> "some of those examples are forbidden by other parts of the
> Constitution." I can only ask: what parts? Please cite and quote
> the pertinent text from the U.S. Constitution, Lawson, along with the
> associated example.
If States allow something in their Constitution which runs contrary to
either the Federal Constitution, or the Federal law, then the Federal
Constitution/Law rules. See Article VI US Constitution
"This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding. "
However, the point of the previous discussion rested on rights that the
States granted via their constitutions that the US Government was silent
on. In those areas, the state constitutions are pretty much unlimited.
As examples of the list that you gave that might be considered as violating
the US Constitution, the termination of a new born baby seems to be against
amendment XIV both in depriving the infant of life, and in not giving the
infant equal protection of its laws. Likewise the giving away of federal
lands would seem to go against Article 1, Section 8 "and to exercise like
authority over all places purchased by the consent of the legislature of
the state in which the same shall be, for the erection of forts, magazines,
arsenals, dockyards, and other needful buildings;"
Most of the other instances you listed would be against laws of the US.
See Article VI above.
Walter Scott
If it is possible, Whit, to support your proposition, as though it is
fact, then it should not be more time-consuming than the ten minutes
you contend it would take to cite and quote relevant caselaw which
you've referred to here but not yet specifically cited and quoted.
Why haven't you? The 9th and 10th Amendments of the U.S. Constitution
allow for exercise of personal or state rights not enumerated or
prohibited in the U.S. Constitution. But you've not answered
questions as to how far that goes with regard to the examples I've
provided, and you have not done so in relation to the constitutional
grounds that either allow for or prohibit the essence of whatever is
assigned as extra rights and/or privileges by a given state in the
examples I've previously listed.
What "points and authorities" does Oregon, for example, have to offer
as it attempts to defend its assisted suicide law? What points and
authorities can Attorney General Ashcroft offer in contrast? As it
pertains to your belief that "a STATE can recognize additional
rights" but "these do not apply when the state citizen is being
investigated by federal agents," how does that square with the 9th
and 10th Amendments of the U.S. Constitution? There is not an
enumerated right to assisted suicide or a prohibition of same within
the U.S. Constitution. The combination of the 9th and 10th Amendments
would or would not allow for the federal government to prevent
assisted suicide in Oregon? Whatever the answer, what case cites and
quotes would support that answer?
This discussion does not simply boil down to whether federal agents
as opposed to state agents are investigating a given subject in
crime. The discussion, as it relates to the current topic, started
with constitutional rights, in general and particular, of individuals
or of the people at large in their home states, under a state
Constitution as opposed to rights in general and particular under the
U.S. Constitution. The scenario you draw and the position you take on
a federal agent not being impacted by obligations at law in a given
state as opposed to agents of that state is not disputed by me AS FAR
AS IT GOES. But it really doesn't get to the questions previously
asked, and you're assertion that I'm missing the point as it relates
to obligations on state as opposed to federal agents actually misses
MY point of query.
RCW 9.73 provides for greater protection than federal statutes as to,
for example, recorded phone conversations. In other words: Washington
state, like Maryland, is a two-party state. That means both parties
in a recorded conversation must know that the conversation is being
recorded if there has been no appropriately administered court order
to record a conversation for law enforcement purposes on sufficient
cause. Federal law requires that at least ONE party know their
conversation is being recorded. Thus, RCW 9.73 makes a big difference
within Washington state in terms of conducting a sting operation to
obtain incriminating evidence from a phone conversation. You, Whit,
point to Washington state's Constitution as holding a greater
standard for privacy than one could expect from the federal
Constitution, and I reference RCW 9.73 as the statutory
implementation of "extended" privacy rights for Washington state
residents. But what does all this mean when reconciling notions of
state supremacy versus federal supremacy?
Let's examine what will happen in a realistic case. If a
Seattle-based FBI agent not possessing ANY court order to secretly
record a telephone conversation in Washington state has an informant
call and record someone in Washington state, without the subject's
prior knowledge, who is the subject of a federal investigation, and
does so to gain incriminating statements, then the agent has violated
RCW 9.73 but is likely to be within the bounds of federal law in that
at least the informant knew the conversation was to be recorded. This
scenario sets a conflict between state and federal law but it's more
complicated on whether the scenario sets a conflict between
Washington state's Constitution and the U.S. Constitution. Both the
federal and state Constitution contain text protecting citizens in
some aspect of their "private affairs," in the case of the first, or
in their "person" and their "papers," "homes," as well as their
"effects" in the latter. But the first is seemingly more explicit in
that it actually uses the word "private" and the phrase "private
affairs." But is it really significantly more explicit that the U.S.
Constitution's 4th Amendment? Does Washington state caselaw regard it
as stronger than the 4th Amendment to the U.S. Constitution? If yes,
can someone provide cites and quotes?
Action within the jurisdiction of state courts might bring forth some
remedy for the person who was recorded without his or her prior
knowledge. But this would be a case within federal jurisdiction
alone, as you, Whit, likely would point out. Does the matter end with
this observation. I'm not sure we can say that it does.
There is no explicit mandate in the U.S. Constitution to protect a
right to privacy as are rights to free speech, a speedy trial, due
process and equal protection under the law and other rights are
protected in the U.S. Constitution. Beyond the specificity of the 4th
Amendment of the U.S. Constitution, the nature of privacy as a
federal matter is entirely an interpreted right being EXTREMELY
narrow in scope, as in Roe v. Wade. Ergo, Washington state's position
on privacy may arguably be an instance where a state has taken up a
right neither protected or prohibited under the U.S. Constitution but
allowed to states and individuals as an unenumerated right through
the 9th and 10th Amendments of the U.S. Constitution.
Why, under the supremacy argument noted above, as in what caselaw
supports supremacy, can or should the federal government, in essence,
have the ability to act within the borders of a given state in
contravention to state law by way of federal statutes conflicting
with the edict of a state Constitution reflected in a state statute
of law, and why should the federal government have the ability to do
so where there is no direct link between a federal statute asserting
supremacy over rights granted by a given state and the plain words of
the U.S. Constitution, as in federal supremacy on law controlling
certain substances where there is no corresponding edict in the U.S.
Constitution commanding such supremacy or likewise for assisted
suicide? Why is federal supremacy on controlled substances, assisted
suicide and even privacy -- beyond what is provided for in the 4th
Amendment and Roe v. Wade -- not an abrogation of the 10th if not
both the 9th and 10th Amendments of the U.S. Constitution?
Kaptain Kwagmire(Shea F. Kenny)
is about federal crime. Uh, thus has federal jurisdiction.....
However, I must conclude that since the Federal Constitution
is the supreme law of the land it doesn't matter if Washington has
stronger protections or not.
The Federal Constitution is the supreme law of the land and in
any matters which fall under it's pervue, must conform to it's
standards.
So. Only in matters the Federal Constitution affords state's
rights, can states make stronger rules for government.
So, I must retract my earlier statement where I afforded state
citizens more rights in state investigations with regards to crimes,
than federal.
If the federal constitution allows government greater powers
than the state, with regards to crimes under it's jurisdiction, the
state must conform.
And an even simpler route is the fact federal agents are not
required to follow state law...
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Walter Scott
As it pertains to Jim Lovejoy's observation that terminating a newborn
would be covered by the 14th Amendment of the U.S. Constitution and
the taking of federal land by a given state where the land is located
would be covered under the powers granted to Congress: TouchŠ!
Walter Scott
Having fun yet, "Kaptain Kwagmire?"
Walter Scott
FYI: As it pertains to the "Kaptain's" statement that "an FBI agent
investigating any crime is about federal crime" and "thus has federal
jurisdiction": Such was never disputed by me.
Action within the jurisdiction of state courts might bring
forth some remedy for the person who was recorded without his
or her prior knowledge. But this would be a case within
federal jurisdiction alone....
In context to the "Kaptain's" new position or reversal of a previous
position where the "Kaptain states he/she/it/they "must retract [an]
earlier statement where [he/she/it/they] afforded state citizens more
rights in state investigations, with regards to crimes, than federal,"
I can only wonder if the "Kaptain" does so simply to be a contrarian
or to ignite a flamefest. Would such indeed be the "Kaptain's" measure
of fun?
NTReader v0.37w(P)/Beta (Registered) in conjunction with Net-Tamer.
Kaptain Kwagmire(Shea F. Kenny)
(Walter Scott) wrote:
>In context to the "Kaptain's" new position or reversal of a previous
>position where the "Kaptain states he/she/it/they "must retract [an]
>earlier statement where [he/she/it/they] afforded state citizens more
>rights in state investigations, with regards to crimes, than federal,"
>I can only wonder if the "Kaptain" does so simply to be a contrarian
>or to ignite a flamefest. Would such indeed be the "Kaptain's" measure
>of fun?
No. I reconsidered my opinion. Take freedom of speech for
example. Our constitution holds that you can say what you want, but
you have to take responsibility for what you say. The Federal does
not hold you accountable. Thus, the Federal is the standard to be
applied, even though ours imposes a moral obligation.