Flag burning amendment headed to Senate floor.

[WCSox]

If I was around in the prohibition era, I would of argued that it was unconstitutional as well. But those battles have lost consistently, otherwise you would see Marijuana being legalized.

 

You're comparing apples and oranges. The consumption of alcoholic beverages has been an integral part of Western society throughout most of recorded history. Marijuana usage, however, has not.

 

But if the Court has historically not seen it that way, I can only say that they're wrong.

[CrimsonWeltall]

Everyone keeps mentioning prohibition, but that has 0 precendent in this case. Prohibition was already legal in many states and areas. The Supreme Court had never found drinking a protected action.

 

No one has been comparing them in that way. We were talking about the relationship between 21 and 18, not about the constitutionality of 18 itself.

[jackie hayes]

You seem to be assuming that certain parts of the Constitution have more authority than others...

 

Jackiehayes,

 

Actually I do not assume anything...

 

Not all amendments are equal...

 

 

And you talk about two parts that are directly in conflict, without ever replying to my reference to the (very commonsense) treatment of JUST THIS PROBLEM in the Federalist papers.

 

You keep demanding some quote from the Constitution, yet you keep using the word ""fundamental"" (in quotes, no less, although with a, let's say, different, spelling), even though that word is NEVER used in the Constitution.

 

Ya know, personally, I don't see why you insist on the Constitution having such language. If it doesn't, I expect the Supreme Court would just declare the Constitution unconstitutional. Problem solved! And boy, how legal! And if anyone wants their dog on the Court, they could just challenge the part of the Constitution that says that the President appoints SC nominees, accept the case themselves, and find the Constitution (again, as so often) unconstitutional. Having a dog on the SC is a """"""""fundamental"""""""" right.

[Soxbadger]

All I am going to say is, Im not going to take the hours it takes to read through every Supreme Court case and tell you which ones they say are fundemental. You can do the research yourself, I already provided you the three constitutional standards:

 

1) Strict scrutiny

 

2) Intermediate scrutiny

 

3) Rational basis

 

The first level strict, is reserved for those rights that are fundemental. The court has repeatedly stated that the bill of rights are fundemental rights. I dont see what the constitution has to do with this. The supreme court is the final law of the US, they are the ones that interpret the constitution, and they have interpreted the fundemental right into the constitution, therefore it is part of the constitution.

 

If you would like to bring a case that says the first amendments are not fundemental rights go ahead.

 

Jackie,

 

Your not using the word assumption correctly. I do not assume it, the Supreme Court of the United States has said it themselves. They have said that there are certain fundemental rights that require more protection. Its not an assumption when Im just repeating what the Supreme Court has said.

 

WCSox,

 

Who cares about whether or not it was part of Western Culture or not. Slavery was part of western culture, but clearly today it is not tolerated. The argument is off point, but anyways the Supreme Court has no problem putting the right to consume food or drink, or drugs into the rational basis test. In which the govt just need to prove legitimate interest.

Edited June 17, 2006 by Soxbadger

[Heads22]

It's like 100 posts later, but I love the Simpsons ref....

[jackie hayes]

All I am going to say is, Im not going to take the hours it takes to read through every Supreme Court case and tell you which ones they say are fundemental. You can do the research yourself, I already provided you the three constitutional standards:

 

1) Strict scrutiny

 

2) Intermediate scrutiny

 

3) Rational basis

 

The first level strict, is reserved for those rights that are fundemental. The court has repeatedly stated that the bill of rights are fundemental rights. I dont see what the constitution has to do with this. The supreme court is the final law of the US, they are the ones that interpret the constitution, and they have interpreted the fundemental right into the constitution, therefore it is part of the constitution.

 

If you would like to bring a case that says the first amendments are not fundemental rights go ahead.

 

Jackie,

 

Your not using the word assumption correctly. I do not assume it, the Supreme Court of the United States has said it themselves. They have said that there are certain fundemental rights that require more protection. Its not an assumption when Im just repeating what the Supreme Court has said.

 

WCSox,

 

Who cares about whether or not it was part of Western Culture or not. Slavery was part of western culture, but clearly today it is not tolerated. The argument is off point, but anyways the Supreme Court has no problem putting the right to consume food or drink, or drugs into the rational basis test. In which the govt just need to prove legitimate interest.

Fantastic! You know of specific cases where the SC determined that the Constitution contradicts itself and declared the later portion "unconstitutional" because the previous part is "fundamental" and therefore superceded the later part. Or "fundemental", I'm happy with either one. I can't wait to see these cases.

 

Of course, no, you're not going to actually provide the quotes, but, "trust me", you say, "they're there!"

 

If you demand exact quotes, be ready to provide them, or stfu.

[NUKE_CLEVELAND]

Fantastic! You know of specific cases where the SC determined that the Constitution contradicts itself and declared the later portion "unconstitutional" because the previous part is "fundamental" and therefore superceded the later part. Or "fundemental", I'm happy with either one. I can't wait to see these cases.

 

Of course, no, you're not going to actually provide the quotes, but, "trust me", you say, "they're there!"

 

If you demand exact quotes, be ready to provide them, or stfu.

 

 

He just expects us to trust him that he's right and we're wrong.

 

RIIIIIIIIIIIIIGHT

 

What the f*** ever. This is usually how arguments with Badger end up. He gets beat down with point after point against him and then he just says "Im right and you're wrong" and walks away.

 

This is toooooooooo funny

[jackie hayes]

He just expects us to trust him that he's right and we're wrong.

 

RIIIIIIIIIIIIIGHT

 

What the f*** ever. This is usually how arguments with Badger end up. He gets beat down with point after point against him and then he just says "Im right and you're wrong" and walks away.

 

This is toooooooooo funny

Re: "we". You do know I think this amendment is nearly the stupidest f***ing idea in this nation's recent history......right?

 

Just to be clear. There's not a chance in hell the SC would 'invalidate' this amendment, but it still disgusts me.

[Soxfest]

I would rather see Immigration bill hammered out first!

[NUKE_CLEVELAND]

Re: "we". You do know I think this amendment is nearly the stupidest f***ing idea in this nation's recent history......right?

 

Just to be clear. There's not a chance in hell the SC would 'invalidate' this amendment, but it still disgusts me.

 

 

I respect your opinion. Its nice to be on the same side at least SOME of the time anyway.

 

[Gregory Pratt]

As to Badger's responses to me, I think Jackie and Nuke did an excellent job responding, and I think this was the nail in the coffin:

 

Do you have any idea how asinine it sounds when you assert that the Supreme Court gets to pick and choose which parts of the Constitution it's going to say are valid? You extend that logic out and you could have a court that decides to nullify the anti-slavery amendments, or the women's suffrage amendment, or the one giving 18 year olds the right to vote. Where does THAT end??

 

Thanks, Nuke. It's nice that we agree on this AND the Electoral College. And baseball. And beanballs.

 

And I'd like to say that I think it's ridiculous to assert that not all amendments are created equal. To be sure, they all serve different purposes, but no Court -- nobody with an intellectual mind -- would, in the event that this Amendment is passed, accept the argument that, "Hey, the First Amendment weighs heavier than this Amendment because I think it's my right to expression to burn flags." You know what the answer would be?

 

An indignant David Souter saying, "My dear man, haven't you a clue? This Amendment gives the government the power to ban flag burning. What the hell do you mean it's UnConstitutional, then, for them to do what the Amendment says they can?"

[illinilaw08]

Ok, adding my .02 to this discussion. After attempting to drink away all I learned in Con Law I, I hope I can still be helpful. There is no way the SC could rule an amendment unconstituional. First of all, consider what an amendment is, it is a change to the constitution which can only be accomplished under very strict criteria (2/3 of both houses, 3/4 of the states). Since this is how the constitution dictates amendments are passed, the Court would have to rule that that portion of the constitution is unconstitutional in order to overturn an amendment.

 

From a textual standpoint, Article III Section II of the Constitution says that the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” Suit involving an amendment would not fall under that category.

 

Article III goes on to say “in all other Cases before mentioned the S.C. shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This is the portion of the Constitution that Marshall used when he created "judicial review" which is not even in the Constitution, but is rather a judicially created standard of review. Judicial review holds that the Supreme Court has the power to interpret federal laws and determine if they are in conflict with the Constitution.

 

However, checks and balances dictate that judicial review is not the end of the road, much like the legislature can override an executive veto, the legislature can override a judicial veto by amending the Constitution. Thus, the ability of the legislature to amend is the only realistic check available to the legislature (historically the only other check was when FDR threatened to add justices to the SC if they continued to strike down his New Deal policies as unconstitutional).

 

Now, the Supreme Court has the power to interpret amendments, one needs look no further than the evolution of the 4th Amendment to see that, but they would not be able to blatantly rule an amendment to the constitution as against the constitution because once, ratified, an amendment IS the constitution.

 

The thing to remember in all of this is that the Constitution is not incredibly specific. The world has changed a lot since the Constitution was created and as such, you will not find a specific section that explicitly says "court challenges of amendments are not allowed." Instead, you need to interpret the Constitution as a whole, and like I mentioned earlier, the fact that the Constitution makes amending the Constitution to be a task that involves 2/3 of both houses and 3/4 of the states, a rather difficult task, makes a constitutional amendment beyond the scope of judicial review.

 

My apologies for the length of the post, and congratulations to all that are still reading at this point. As an added disclaimer, I only got a B+ in constitutional law, so take that as it is.

[Gregory Pratt]

Ok, adding my .02 to this discussion. After attempting to drink away all I learned in Con Law I, I hope I can still be helpful. There is no way the SC could rule an amendment unconstituional. First of all, consider what an amendment is, it is a change to the constitution which can only be accomplished under very strict criteria (2/3 of both houses, 3/4 of the states). Since this is how the constitution dictates amendments are passed, the Court would have to rule that that portion of the constitution is unconstitutional in order to overturn an amendment.

 

From a textual standpoint, Article III Section II of the Constitution says that the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” Suit involving an amendment would not fall under that category.

 

Article III goes on to say “in all other Cases before mentioned the S.C. shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This is the portion of the Constitution that Marshall used when he created "judicial review" which is not even in the Constitution, but is rather a judicially created standard of review. Judicial review holds that the Supreme Court has the power to interpret federal laws and determine if they are in conflict with the Constitution.

 

However, checks and balances dictate that judicial review is not the end of the road, much like the legislature can override an executive veto, the legislature can override a judicial veto by amending the Constitution. Thus, the ability of the legislature to amend is the only realistic check available to the legislature (historically the only other check was when FDR threatened to add justices to the SC if they continued to strike down his New Deal policies as unconstitutional).

 

Now, the Supreme Court has the power to interpret amendments, one needs look no further than the evolution of the 4th Amendment to see that, but they would not be able to blatantly rule an amendment to the constitution as against the constitution because once, ratified, an amendment IS the constitution.

 

The thing to remember in all of this is that the Constitution is not incredibly specific. The world has changed a lot since the Constitution was created and as such, you will not find a specific section that explicitly says "court challenges of amendments are not allowed." Instead, you need to interpret the Constitution as a whole, and like I mentioned earlier, the fact that the Constitution makes amending the Constitution to be a task that involves 2/3 of both houses and 3/4 of the states, a rather difficult task, makes a constitutional amendment beyond the scope of judicial review.

 

My apologies for the length of the post, and congratulations to all that are still reading at this point. As an added disclaimer, I only got a B+ in constitutional law, so take that as it is.

 

That's a very good job done, mate.

[BHAMBARONS]

Ok, adding my .02 to this discussion. After attempting to drink away all I learned in Con Law I, I hope I can still be helpful. There is no way the SC could rule an amendment unconstituional. First of all, consider what an amendment is, it is a change to the constitution which can only be accomplished under very strict criteria (2/3 of both houses, 3/4 of the states). Since this is how the constitution dictates amendments are passed, the Court would have to rule that that portion of the constitution is unconstitutional in order to overturn an amendment.

 

From a textual standpoint, Article III Section II of the Constitution says that the Supreme Court has original jurisdiction “in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” Suit involving an amendment would not fall under that category.

 

Article III goes on to say “in all other Cases before mentioned the S.C. shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” This is the portion of the Constitution that Marshall used when he created "judicial review" which is not even in the Constitution, but is rather a judicially created standard of review. Judicial review holds that the Supreme Court has the power to interpret federal laws and determine if they are in conflict with the Constitution.

 

However, checks and balances dictate that judicial review is not the end of the road, much like the legislature can override an executive veto, the legislature can override a judicial veto by amending the Constitution. Thus, the ability of the legislature to amend is the only realistic check available to the legislature (historically the only other check was when FDR threatened to add justices to the SC if they continued to strike down his New Deal policies as unconstitutional).

 

Now, the Supreme Court has the power to interpret amendments, one needs look no further than the evolution of the 4th Amendment to see that, but they would not be able to blatantly rule an amendment to the constitution as against the constitution because once, ratified, an amendment IS the constitution.

 

The thing to remember in all of this is that the Constitution is not incredibly specific. The world has changed a lot since the Constitution was created and as such, you will not find a specific section that explicitly says "court challenges of amendments are not allowed." Instead, you need to interpret the Constitution as a whole, and like I mentioned earlier, the fact that the Constitution makes amending the Constitution to be a task that involves 2/3 of both houses and 3/4 of the states, a rather difficult task, makes a constitutional amendment beyond the scope of judicial review.

 

My apologies for the length of the post, and congratulations to all that are still reading at this point. As an added disclaimer, I only got a B+ in constitutional law, so take that as it is.

 

Very Very well said. to this great post

 

I will also add that not only does it take 66 Senators + 38 States some republican states that voted for Bush in 04 have Democratic legislators or Governors which makes it even harder to pass.

Edited June 19, 2006 by BHAMBARONS

[Mplssoxfan]

Let's not forget that if and when the prospective amendment passes, the Congress has to pass a law which defines "desecration". The amendment probably could not be ruled unconstitutional, but the constitutionality of any law passed could be challenged. And that might take a while

[WCSox]

Who cares about whether or not it was part of Western Culture or not. Slavery was part of western culture, but clearly today it is not tolerated. The argument is off point, but anyways the Supreme Court has no problem putting the right to consume food or drink, or drugs into the rational basis test. In which the govt just need to prove legitimate interest.

 

The comparison of drinking to slavery is ridiculous. One infringes on several fundamental rights. The other arguably IS a fundamental right, given the history of our culture. There is no "rational basis" to completely ban alcohol consumption among adults, just as there is no rational basis to ban smoking or caffeine consumption.

Edited June 19, 2006 by WCSox

[Balta1701]

Let's not forget that if and when the prospective amendment passes, the Congress has to pass a law which defines "desecration". The amendment probably could not be ruled unconstitutional, but the constitutionality of any law passed could be challenged. And that might take a while

See, if this foolish thing ever passes, that's the part I'm going to have some fun with. Do you know how many incidents of flag descration happen every single day in every city in America? Dozens, if not hundreds. People flying tattered flags. People letting the flag touch the ground. People flying flags (and not necessarily the Mexican flag or a church flag) equal to or higher than the American Flag. People leaving flags out at night or in the rain. They happen all the bloody time. I biked to a sports store last week to pick up a few supplies, and counted 6 things I could have reported.

 

If this amendment ever passes and the nation does ban "flag desecration", I'm planning on making people regret not paying attention to how stupid their representatives are. "Ban flag desecration? Sure! Can't let them hippies hurt my flag. Wait, whaddya mean I get a $150 fine for laying my flag on the ground?!"

[jackie hayes]

See, if this foolish thing ever passes, that's the part I'm going to have some fun with. Do you know how many incidents of flag descration happen every single day in every city in America? Dozens, if not hundreds. People flying tattered flags. People letting the flag touch the ground. People flying flags (and not necessarily the Mexican flag or a church flag) equal to or higher than the American Flag. People leaving flags out at night or in the rain. They happen all the bloody time. I biked to a sports store last week to pick up a few supplies, and counted 6 things I could have reported.

 

If this amendment ever passes and the nation does ban "flag desecration", I'm planning on making people regret not paying attention to how stupid their representatives are. "Ban flag desecration? Sure! Can't let them hippies hurt my flag. Wait, whaddya mean I get a $150 fine for laying my flag on the ground?!"

You know that won't work. No law will use a word as general as "desecration".

[Balta1701]

You know that won't work. No law will use a word as general as "desecration".

The exact wording of the amendment is "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

 

The question will be how that gets defined in laws when they are written. Considering that there's been discussion about whether or not bathing suits with parts of the flag on them are desecration or not, I have very little confidence that the elected officials who would pass that amendment would keep the definition narrow.

[Soxbadger]

BTW Illinilaw, congrats on your first year, the hardest part is over. ( I assume Conlaw I is 2nd semester 1L, I have a JD and was quite successful in Conlaw I & II).

 

But I am going to defer to everyone else's expertise in this thread. I did the research, and found no evidence to suggest that the Supreme Court has ever been explicitly told it can not review an Amendment. No one has found contrary evidence.

 

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

 

All cases, arising under the constitution. I see no words of limitation.

 

I am sorry that I am taking the minority viewpoint, but I started believing the same thing as you. I thought that as soon as I looked into it, that I would find a bunch of cases or con law articles that said the Supreme Court's power was restricted in this regard. I found nothing. I then asked if anyone else could find something, some shred of evidence besides for our own opinions, and I was given nothing.

 

So in the end, this is nothing more than a bunch of opinions. I am glad that you all think you are right, but that will not change what I think is right.

 

No one has put any nail in the coffin, I do not think it is assinine to suggest that when 2 amendments would come into direct conflict, as these 2 amendments would, that the Supreme Court could decide that in the end one of them was invalid. Unlike the slavery amendments, women's sufferage, they are not in conflict with any other amendment.

 

So yes in the very limited situation, where an amendment may pass that is in direct conflict with another amendment, the supreme court would be able to invalidate one of them. Other wise what is the point of an amendment, if you can just eat away at it through smaller "less restrictive" amendments. We arent completely over turning the 1st amendment, we are just taking away the spirit. So I guess if people wanted to make an amendment that took away all firearms, that the Supreme could not step in?

 

These are questions that are uncontemplated by the founding fathers. The only time that an Amendment has been rescinded is prohibition, and our expert Illinilaw08 will tell us about the filled milk case and why the govt could make any law that was rationally based. I am sure that he knows all about Carolene products.

 

Then compare this projected case, where the Supreme Court has already ruled that flag burning is protected by the First Amendment. This would be the first time I can think of the supreme Court calling something a "protected activity" and then it being overturned by Amendment.

 

You may all be right, but when you act like my stance has no merit and dont even give me the respect to do some research and tell me what precedent you have on your side, it just gets very frustrating to argue.

 

I respect Illinilaw, but I do not see how his argument is persuasive either way. As you say the Constitution is not specific, but in the end you will agree that there is only one body that has the power to interpret the constitution, and that body is the Supreme Court. Therefore it would be entirely within the Supreme Court's power to interpret the constitution to give them the power to call an Amendment unconstitutional. If they read that power into the constitution, which I have given my reasons why they could; article 3 specifically says "all" which means without limitation, Amendment is legislation, the Judiciary always has power over legislation. Then maybe they will over turn it.

 

Once again, Im not saying this is what they will do, I already said Im not willing to research every judge's opinion on the topic and guess what they would say.

 

All i am saying is that I did the research because I was interested, and when I really started to look at the issue from a seperation of power standpoint, the area gets very murky of where the Supreme Court's power ends.

 

You already have all made up your minds, and maybe if the stars are aligned we will see what happens. But for some reason I dont see the Amendment making it.

Edited June 19, 2006 by Soxbadger

[illinilaw08]

SB, first off, thanks for the congratulations, first year was brutal, but fortunately it is done (and yes, unfortunately I can attest to

 

I definitely respect your opinion, and I won't pretend to be a constitutional scholar though I did get a little excited to finally be able to apply something from 1L year.

 

I sent my Con Law prof the question and I will report the result if anyone is interested.

 

For the record, I think this amendment is a bad idea, I just would be very surprised if the Supreme Court could overrule it.

[santo=dorf]

QUOTE(FlaSoxxJim @ Jun 17, 2006 -> 02:08 PM) <{POST_SNAPBACK}>

How, pray tell?

It's simple, Nuke is an american, not an Islamic thug.

 

I'm not calling muslims "thugs," I'm just responding with one of Nuke's typical response regarding Muslims and their religion.

Edited June 20, 2006 by santo=dorf

[NUKE_CLEVELAND]

It's simple, Nuke is an american, not an Islamic thug.

 

I'm not calling muslims "thugs," I'm just responding with one of Nuke's typical response regarding Muslims and their religion.

 

 

You fail to realize that I only accuse 1% of Muslims of being thugs and that 1% comprises the Islamo-fascist movement.

 

However. According to varying estimates there are around 1 BILLION muslims in the world today. Therefore there are approximately 10 MILLION Islamic thugs out there committing acts of terrorism and preaching hate and intolerance. That's a staggering figure.

[LowerCaseRepublican]

http://www.news.com.au/story/0,10117,19615409-23109,00.html

 

Senate blocks the amendment by one vote. A bunch of Congressional aides were saying that a lot of the Senators didn't like the bill but knew that it was a cheap campaign ploy for midterm elections and didn't want to get slimed with ads misrepresenting their stance.

 

Yay Nay for each Senator:

Durbin: Nay

Obama: Nay

 

http://www.senate.gov/legislative/LIS/roll...on=2&vote=00189

 

 

From TFA:

 

"Countless men and women have died defending that flag," said Majority Leader Bill Frist, R-Tenn., closing two days of debate. "It is but a small humble act for us to defend it."

 

"Our country's unique because our dissidents have a voice," said Sen. Daniel Inouye, D-Hawaii. "While I take offense at disrespect to the flag," he said, "I nonetheless believe it is my continued duty as a veteran, as an American citizen, and as a United States senator to defend the constitutional right of protesters to use the flag in nonviolent speech."

 

Ten-point Toss-up: Which Senator above lost an arm in military service to this country, and received the Medal of Honor?

 

Hint--it's not Frist.

[BHAMBARONS]

http://www.news.com.au/story/0,10117,19615409-23109,00.html

 

Senate blocks the amendment by one vote. A bunch of Congressional aides were saying that a lot of the Senators didn't like the bill but knew that it was a cheap campaign ploy for midterm elections and didn't want to get slimed with ads misrepresenting their stance.

 

Yay Nay for each Senator:

Durbin: Nay

Obama: Nay

 

http://www.senate.gov/legislative/LIS/roll...on=2&vote=00189

From TFA:

 

"Countless men and women have died defending that flag," said Majority Leader Bill Frist, R-Tenn., closing two days of debate. "It is but a small humble act for us to defend it."

 

"Our country's unique because our dissidents have a voice," said Sen. Daniel Inouye, D-Hawaii. "While I take offense at disrespect to the flag," he said, "I nonetheless believe it is my continued duty as a veteran, as an American citizen, and as a United States senator to defend the constitutional right of protesters to use the flag in nonviolent speech."

 

Ten-point Toss-up: Which Senator above lost an arm in military service to this country, and received the Medal of Honor?

 

Hint--it's not Frist.

 

 

I agree with this vote. I really have the same sentiments that Sen. Inouye has which is I think it is wrong to burn a flag and would not do it myself but flag burning is a form of free speech and free speech must be protected. To able to have freedom in this country you are going to have to want it bad and that means dealing with a person who shouts at the top of his lungs something that you would spend a life time opposing. You want free speech then you have to deal with all that goes along with it including flag burning.