Flag burning amendment headed to Senate floor.

[jackie hayes]

So, according to your logic, the SC could determine that the SC is unconstitutional. Okay.

 

It plainly makes no sense to say "The Constitution is unconstitutional." But if you like law-by-paradox, be my guest.

[NUKE_CLEVELAND]

Nuke,

 

Please find me a specific clause in the constitution that says, the constitution is not reviewable by the Supreme Court.

 

I could not find such language. And your idea that just because something is approved by an amendment makes it constitutional is weak and without merit. If congress and 3/4 of the states passed a law that said:

 

"Islam is the only faith of the United States, any person who practices another religion besides Islam will be arrested."

 

You are saying the Supreme Court would have its hands tied? Look to Article III of the constitution:

It says ALL cases. And no where in Article III is the Supreme Court limited in its power from interpreting or striking down an Amendment (we already know that the supreme court can interpret amendments, why they couldnt strike them down seems odd.)

 

When you go to Article V Amendments, there is no clause, provision, or mention that the Supreme Court can not over rule an Amendment. By putting the 2 articles of the constitution together, Article III saying the Supreme Court has the power to hear all cases without limitation, and Article V where the constitution does not place any protection for amendments from judicial review, the only conclusion that can be reached is that Amendments are able to be judicially reviewed.

 

Now the greatness of this whole excersise in constitutional law is, that in the end, it is the Supreme Court who will decide whether or not they have the power. So it will be up to the justices on the court to decide where does the judicial power end. I am not about to go and research all justices opinions on the extent of the judiciarys power.

 

The only thing laughable here is the fact that you refuse to bring any evidence, facts, or otherwise to support your stance. You base your entire post on "I believe" an opinion, and then bring no text to support it.

 

The only reason you think the Hitler references are weak is because they completely destroy about half of the viewpoints you hold so dearly.

 

My early quote where I changed the words slightly shows just how closely you parrallel Nazi views.

 

Once again, go back to the prohibition amendment. Once the amendment was approved and ratified it was beyond the legal systems reach and required another amendment to abolish it. What is your answer for this? ( beyond choosing to completely ignore that point and insult my intelligence instead ).

 

So tell me what viewpoints I hold that parallel those of Hitler? I don't believe in coddling criminals so I guess that makes me Hitler huh? I don't believe in allowing racial minorities to be given an unfair advantage by virtue of their skin color ( SEIG HEIL!! ) . I also believe that if people want the supreme law of the land changed to disallow a certain behavior then they are entitled to work within the system to do so. ( YA WHOL MIEN FUHRER!!!!! ).

 

This is just more typical ranting from just another typical leftist. You see something you disagree with so you throw Hitler and Stalin at those who are proponents of it. Its the same old tired tactic you people have been using for years and years now and it is less and less effective every time.

[Rex Kickass]

Nuke, if you want to talk about typical - almost every reaction with people who disagree with you on this forum is the same, you just call them a typical leftist. Well, that's fine, we here on the left are happy to welcome anyone who's interested in protecting the expression rights of any and all citizens.

 

A typical leftist response by the way, would and should be - Why are all these "conservative" people who supposedly run our government so eager to amend our constitution for just about every little thing? Probably because what they want to do won't stand up in court - because what they want to do is contrary to the letter and spirit of the constitution. So rather than take a good look at themselves and realize that maybe their priorities need a change, they just figure the guiding document of our society is what needs changed.

[minors]

Nuke,

 

Please find me a specific clause in the constitution that says, the constitution is not reviewable by the Supreme Court.

 

I could not find such language. And your idea that just because something is approved by an amendment makes it constitutional is weak and without merit. If congress and 3/4 of the states passed a law that said:

 

"Islam is the only faith of the United States, any person who practices another religion besides Islam will be arrested."

 

You are saying the Supreme Court would have its hands tied? Look to Article III of the constitution:

It says ALL cases. And no where in Article III is the Supreme Court limited in its power from interpreting or striking down an Amendment (we already know that the supreme court can interpret amendments, why they couldn't strike them down seems odd.)

 

When you go to Article V Amendments, there is no clause, provision, or mention that the Supreme Court can not over rule an Amendment. By putting the 2 articles of the constitution together, Article III saying the Supreme Court has the power to hear all cases without limitation, and Article V where the constitution does not place any protection for amendments from judicial review, the only conclusion that can be reached is that Amendments are able to be judicially reviewed.

 

Now the greatness of this whole excersise in constitutional law is, that in the end, it is the Supreme Court who will decide whether or not they have the power. So it will be up to the justices on the court to decide where does the judicial power end. I am not about to go and research all justices opinions on the extent of the judiciarys power.

 

The only thing laughable here is the fact that you refuse to bring any evidence, facts, or otherwise to support your stance. You base your entire post on "I believe" an opinion, and then bring no text to support it.

 

The only reason you think the Hitler references are weak is because they completely destroy about half of the viewpoints you hold so dearly.

 

My early quote where I changed the words slightly shows just how closely you parrallel Nazi views.

 

 

Wow, I assume since I stand with Nuke on most issues that I am a Nazi. All I believe in is not coddling prisoners and people who obviously hates America which burning a flag shows. If that makes me a Nazi then I guess I am guilty as charged.

[NUKE_CLEVELAND]

Nuke, if you want to talk about typical - almost every reaction with people who disagree with you on this forum is the same, you just call them a typical leftist. Well, that's fine, we here on the left are happy to welcome anyone who's interested in protecting the expression rights of any and all citizens.

 

A typical leftist response by the way, would and should be - Why are all these "conservative" people who supposedly run our government so eager to amend our constitution for just about every little thing? Probably because what they want to do won't stand up in court - because what they want to do is contrary to the letter and spirit of the constitution. So rather than take a good look at themselves and realize that maybe their priorities need a change, they just figure the guiding document of our society is what needs changed.

 

 

SOOOOOOOOOO not true. You and Balta disagree with me and only when we are in extreme disagreement do I bring out the L word.

 

Like I said. The conservative movement has a problem with people burning the symbol that defines our country. They wish to change the law so that it can't be legally done anymore. The amendment has broad BI-PARTISAN support in both houses of Congress. Seems to me that your biggest issue with this whole thing is that you disagree with it.

 

Wow, I assume since I stand with Nuke on most issues that I am a Nazi. All I believe in is not coddling prisoners and people who obviously hates America which burning a flag shows. If that makes me a Nazi then I guess I am guilty as charged.

 

 

Yeah, dont you just love how having a disagreeing viewpoint from his makes you the equivalent of a movement that was responsible for the deaths of 10s of millions of people?

 

LOL!

 

 

Its just funny beyond words.

[Rex Kickass]

You're right I disagree with it. I disagree with anything that codifies a further restriction on our bill of rights within the constitution. I'm a firm believer in freedom - even the freedoms that I find distasteful. Because I find restricting the right to dissent - even if its in a mind-numbingly boring and stupid way to do so - as long as its done in a safe manner, not putting the physical lives of those around them at risk, completely UnAmerican. And pointless.

 

A constitutional amendment isn't going to stop flag burnings. Just like it isn't going to stop gay marriage. It's stupid boilerplate set to dupe stupid people into voting for poor candidates who can't get their vote any other way than making them feel at risk, under attack or in crisis.

[NUKE_CLEVELAND]

A constitutional amendment isn't going to stop flag burnings. Just like it isn't going to stop gay marriage. It's stupid boilerplate set to dupe stupid people into voting for poor candidates who can't get their vote any other way than making them feel at risk, under attack or in crisis.

 

 

See this is what gets me really angry with people on your side. Anytime we do something YOU find distasteful you resort to namecalling and other vile invective because you cant change their minds and get them to vote for someone you find palatable. You have the balls to sit there and complain about me calling certain people leftists but then 2 posts later you label more than half the electorate stupid.

 

 

Give me a f***ing break. Hypocrite.

[minors]

You're right I disagree with it. I disagree with anything that codifies a further restriction on our bill of rights within the constitution. I'm a firm believer in freedom - even the freedoms that I find distasteful. Because I find restricting the right to dissent - even if its in a mind-numbingly boring and stupid way to do so - as long as its done in a safe manner, not putting the physical lives of those around them at risk, completely UnAmerican. And pointless.

 

A constitutional amendment isn't going to stop flag burnings. Just like it isn't going to stop gay marriage. It's stupid boilerplate set to dupe stupid people into voting for poor candidates who can't get their vote any other way than making them feel at risk, under attack or in crisis.

 

 

If a person hates there country so much to the point of burning your countries flag then you are free to go live in a third world country just don't let the door hit you on the way out.

Edited June 16, 2006 by minors

[Soxbadger]

Nuke,

 

here is your statement:

 

I dont give a rats ass if the CIA and military are torturing people. As far as Im concerned, Radical Islamo-fascists have the right to be mowed down by machine gun fire and to have physical pain inflicted on them to produce information so that more of them can be mowed down.

 

Problems with the economy? As far as I can see all we need to do is cut some spending. Aside from that we're in really REALLY good shape. Deal with the immigration issue also ( Which is being done ).

 

This is very close to Nazi ideaology. Im sorry if you dont see that way. But any time you say you dont care about torture, that people should be mowed down, and physical pain, that sounds very close to the "final solution." I didnt make the statement, you did.

 

Now back to your argument on flag burning. You use prohibition as an example:

 

Once again, go back to the prohibition amendment. Once the amendment was approved and ratified it was beyond the legal systems reach and required another amendment to abolish it. What is your answer for this? ( beyond choosing to completely ignore that point and insult my intelligence instead ).

 

Please tell me how prohibition was unconstitutional. The test for a law like this is, rational basis review. http://en.wikipedia.org/wiki/Rational_basis_review

 

There is no way that the Supreme Court could of found prohibition unconstitutional based on this standard. Clearly regulating alcohol was within congress's power, and therefore prohibition was constitutional. The only way to argue unconstitutional is that there was no rational basis for the govt to make the law, almost always the govt wins when rational basis is the constitutional standard.

 

Now compare and contrast with "strict scrutiny", http://en.wikipedia.org/wiki/Strict_scrutiny

 

which would be the level of scrutiny the new amendment would come under. Under strict scrutiny the court must find that the law, 1) was justified by a compelling govt interest, 2) it was narrowly tailored, 3) it was the least restrictive means of for achieving that interest.

 

The question would be is whether or not flag burning is a compelling govt interest. In order to be compelling, it must be necessary or crucial, which I believe this law is neither. Therefore under strict scrutiny the Supreme Court could invalidate the law, where as under rational basis the Supreme Court could not.

 

The difference between this Amendment and Prohibition is simply that prohibition did not try and take away a fundemental right that would require the govt to pass strict scrutiny.

 

Now I know that this is just wikipedia, but I doubt that you have access to either Westlaw or Nexis. I did not talk about the difference between prohibition and a 1st amendment right, because that is basic constitutional law. Its like arguing why the govt can make a law that bans the use of marijuana but can't make a law that bans the practice of praying.

 

In the end, I do not believe prohibition has close enough facts to warrant serious discussion of why a constitutional challange would be different. Drinking alcohol is not a constitutionally protected activity, protesting is.

 

Jackie hayes,

 

They are an "Amendment". They SC can interpret these amendments, I dont see why they could not interpret one to be unconstitutional based on an inconsistency with another amendment.

 

Also the first amendment is a "fundemental" amendment. And that does mean something in the court of law. Feel free to put in "fundemental right" into a search engine and see some case law.

 

Anyways gotta go so if its not as quality sorry/

[Soxbadger]

Two things before I go,

 

1) I wont be around till tomorrow so if anyone finds information about why the SC cant over rule an Amendment I would be interested to see it. I am talking about a judge, or scholar writing about prohibition and saying that the SC thought about it and it did not happen, etc. I couldnt find anything so far.

 

2) Minors, I think anyone who believes in the quote above, has beliefs that are closer to a Nazi's than an American's.

[Rex Kickass]

See this is what gets me really angry with people on your side. Anytime we do something YOU find distasteful you resort to namecalling and other vile invective because you cant change their minds and get them to vote for someone you find palatable. You have the balls to sit there and complain about me calling certain people leftists but then 2 posts later you label more than half the electorate stupid.

Give me a f***ing break. Hypocrite.

 

If you think that over half the electorate actually makes their decision on who to vote for solely based on how a Senator voted over an amendment about flag burning, you are stupid. If you think that gay marriage is on the average voter's radar, before its brought up for a vote as a constitutional amendment, you are stupid.

 

Or maybe its me that's stupid. Maybe its just me that thinks that the average voter might be more concerned with what's in his wallet at the end of the day, how he can afford his life, whether or not he feels safe and secure and whether or not he feels that his elected official acts lawfully. Maybe I think, stupidly, that there are about 100 other things that are more important to the average voter than flagburning.

 

And for the record, I didn't complain about you calling someone a leftist. I just said it was tired and boring. I don't even find the word an insult, because I'm proud to be one.

[NUKE_CLEVELAND]

If you think that over half the electorate actually makes their decision on who to vote for solely based on how a Senator voted over an amendment about flag burning, you are stupid. If you think that gay marriage is on the average voter's radar, before its brought up for a vote as a constitutional amendment, you are stupid.

 

Or maybe its me that's stupid. Maybe its just me that thinks that the average voter might be more concerned with what's in his wallet at the end of the day, how he can afford his life, whether or not he feels safe and secure and whether or not he feels that his elected official acts lawfully. Maybe I think, stupidly, that there are about 100 other things that are more important to the average voter than flagburning.

 

And for the record, I didn't complain about you calling someone a leftist. I just said it was tired and boring. I don't even find the word an insult, because I'm proud to be one.

 

 

What people's motivation is to vote for a certain candidate is their business not yours or mine. Maybe it IS flag-burning, or terrorism, or immigration or taxes ( a combination of the bunch? ). I never claimed to know what motivates people to vote for whoever but I do know that you blindly labeling 59 million + people as stupid because they vote for someone you dont like makes you and everyone who thinks like you look like an elitist, snobbish, asshole.

[Gregory Pratt]

To the people in favor of this amendment ... Do you realize that changing the constitution in anyway requires a constitutional convention? Do you realize that if and when a convention is called, they will not just vote on this one item and adjourn? Do you realize that once the convention begins, anything and everything is fair game? They don't have to go through this tough criteria on each issue, just the first one. Once the convention starts, they could theoretically gut the constitution as it currently stands.

 

Replying to the boldened portion: No, actually, it doesn't. That's so flat out wrong as to be laughable.

 

There are, I believe, four ways to get a Constitutional Amendment passed. "A Constitutional Convention" is not going to result from this, and it isn't what is required to change the Constitution "in any way." Not in the least.

 

The first option must begin in Congress which, by a two-thirds vote (of a quorum) in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the several states may ask Congress to call a national convention to discuss and draft amendments. To date, all amendments have been proposed by Congress; although state legislatures have on occasion requested the calling of a convention, no such request has yet received the concurrence required for such a convention.

 

In either case, amendments must have the approval of the legislatures or of smaller ratifying conventions within three-fourths of the states before becoming part of the Constitution. All amendments save one have been submitted to the state legislatures for ratification; only the 21st Amendment was ratified by individual conventions in the states.

 

A national convention called by the states to discuss anything and everything under the sun is never going to happen, and it surely won't occur from this. It can, but you read about it.

 

Thanks for trying.

 

-------------

 

As for this amendment, it's laughable.

It's ridiculous.

 

And this was the best take, IMO:

Is there a rash of flag-burnings going on in the US that I'm simply not aware of? Is there a need for this amendment?

 

-----------

 

SoxBadger: You've gotta be kidding me if you think the Supreme Court will ever have a Court that will be willing to review the Constitutionality of an Amendment. It isn't explicitly forbidden from doing so, certainly. That doesn't mean a Court ever will. The consensus is, to fill you in on reality, is that the Amendments are the Constitution. You can't rule something that's a part of the Constitution to be unconstitutional. You can't say, "Well, it's Unconstitutional to have an age requirement for the Presidency, and that's found in the ninth amendment."

 

You arguing that the Supreme Court would, or should, strike an amendment down is absurd and wholly without merit.

[kapkomet]

SoxBadger: You've gotta be kidding me if you think the Supreme Court will ever have a Court that will be willing to review the Constitutionality of an Amendment. It isn't explicitly forbidden from doing so, certainly. That doesn't mean a Court ever will. The consensus is, to fill you in on reality, is that the Amendments are the Constitution. You can't rule something that's a part of the Constitution to be unconstitutional. You can't say, "Well, it's Unconstitutional to have an age requirement for the Presidency, and that's found in the ninth amendment."

 

You arguing that the Supreme Court would, or should, strike an amendment down is absurd and wholly without merit.

 

GP, I follow your logic - but help out an 'unconstitutional scholar' here... don't just state your opinion, tell us why it couldn't happen from a legal standpoint, if you can. And for the record, I don't agree or disagree with SB's stance, yet. I just want to see more proof before I agree with a side here.

[Gregory Pratt]

GP, I follow your logic - but help out an 'unconstitutional scholar' here... don't just state your opinion, tell us why it couldn't happen from a legal standpoint, if you can. And for the record, I don't agree or disagree with SB's stance, yet. I just want to see more proof before I agree with a side here.

 

Do try to follow along, as this is going to be a tad convoluted and could be confusing. Nothing about Law is simple! (And I'm not patronizing you; I'm warning you, as I've had to edit this a couple times to try and make it fit well.)

 

First, let's use the Equal Protection Clause of the Constitution as a practical example of How to Determine Constitutionality.

Equal Protection says that the government must protect the rights of everyone and everyone is entitled to due process under the Law.

 

Let's say a state passes a law that says the police don't have to protect Asian people who are attacked at sporting events. Someone would certainly challenge that law, and it would be ruled unconstitutional for sure because it goes directly against the Equal Protection Clause of the Constitution.

 

But someone would, of course, have to sue the state that passed the Law, or the Federal Government, and have it go through the Courts. A Court can't just up and say, "Well, I want to rule on the Constitutionality of this law!" It's a basic tenet of American Law: the Courts can't reach out and take, it must be brought to them.

 

Now, how is Constitutionality is determined?

Clearly, if you look at what Nuke writes, what SoxBadger writes, and what I write, you'll find varying views.

I am a Liberal: SoxBadger is an ultraliberal; Nuke is a Paleo-Conservative. ()

 

The Constitutionality of something is often decided by interpretation. This goes especially so with the first ten Amendments. Read the Fifth Amendment, for one, and the Fourth. Sometimes it's hard to tell what the hell they mean, and where their protections stop. The first, the third, the sixth -- all of them aside from the second are pretty confusing, and even the Second has its moments.

 

Very few of the Amendments are very explicit. Prohibition was explicit. Repealing prohibition was. Giving 18-year olds, women and minorities the right to vote? Explicit. But most of the rest? Subject to interpretation.

 

You know what I'm saying?

 

Okay, now that we've had a basic rundown of the Amendments, there IS more to the Constitution than Amendments. There's the articles that begin the Constitution. You know, there's an Article each that enumerates the powers and duties of the States, of the Federal Government, and of the Courts. These articles give the Courts the power to do things, but there's nothing specific in the Constitution that says the Courts have the power to review laws passed by Congress and states. Here, I'll let Wikipedia explain that:

 

The power of judicial review is held by courts in the United States which while developing out of British law is based fundamentally on the tripartite nature of governmental power as enunciated in the United States Constitution. The only explicit definition given in the Constitution is in Article III, which states:

 

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…"

 

The power to strike down laws is not specifically listed, but is an implied power derived from Article III, and Article VI, which declares that the Constitution is the supreme law of the land: no state or federal law is allowed to violate the Constitution. The ultimate court for deciding the constitutionality of federal or state law under the Constitution of the United States is the Supreme Court of the United States. The doctrine of Judicial review was first established as part of Federal law in 1803 in the Supreme Court decision Marbury v. Madison.

 

You see, it's been precedent since 1803 that the Court can overturn laws it deems Unconstitutional. No one disputes that anymore -- or no one who isn't on the fringe, and that's not a shot at anyone here, by the way. I'm just saying.

 

Now, I take the position that SoxBadger's saying that an Amendment could be overturned by the Supreme Court to be laughably ridiculous.

 

Okay, look to the future.

This flag-burning amendment is passed.

It is now a part of the Constitution.

The ACLU wants to sue, saying it's unconstitutional because it violates the First Amendment.

 

How the hell can it be UnConstitutional if it's a part of hte Constitution?

 

Let me remind you: if the Amendment process works, and by that I mean that an Amendment is introduced and passes throughout the Country and reaches enough ratifications in the states to be Ratified federally (here's the process: http://en.wikipedia.org/wiki/US_Constitution#Amendments) and once it has passed, it is passed and it is a part of the Constitution.

 

Currently, it's unConstitutional to ban flag burning because of a Supreme Court ruling that ruled that this action violated the First Amendment.

If this current amendment passes, giving states and the feds the power to criminalize flag burning, it's Constitutional because now it's a power given to them in the Constitution!

It's simple logic as to why the Court can't rule a Constitutional Amendment constitutional. And it's absolutely ridiculous to suggest otherwise.

 

----------

 

There are practical reasons, too, why this wouldn't work, in addition to the fact that it can't work because something is Constitutional if it's Constitutional!

 

What Supreme Court would be crazy enough to say, "Let's overturn a Constitutional Amendment?"

Certainly not today's Court, which is Conservative and Cautious.

 

Now, Kap, I don't quite care if you support the Flag Burning Amendment or not. I don't -- it's absurd. It's not needed, and that's that, IMO. It doesn't make me explode if someone burns a flag, personally, although I think it's tasteless, and I do think it's a valid, if misguided, way to vent your political opinions.

 

But I do hope you come around and agree with me that the Supreme Court can't, and won't, ever be striking down Constitutional Amendments as UnConstitutional.

 

UnConstitutional means having no basis in the Constitution.

Something written in it, or added to it, clearly has basis in it.

 

Viola!

[CrimsonWeltall]

UnConstitutional means having no basis in the Constitution.

Something written in it, or added to it, clearly has basis in it.

 

It means that it violates or contradicts the Constitution.

 

Though, 21 contradicts 18 in the most direct possible way. If 21 can say "NEVERMIND" to 18, then I guess a Flag Burning Amendment can say it to 1. It's just a lot more shocking because everybody likes 1 and everybody hated 18.

[FlaSoxxJim]

everybody hated 18.

 

I'll drink to that.

 

[kapkomet]

GP. I understand your logic, but my thought was more in line with what Crimson was alluding to. However, it took a specific repeal to 'undo' an amendment, and the same would have to happen here, I think.

 

I tend to think, even before I read your post, that you can't have the Courts rule on the 'constitutionality' of an amendment. That has always made sense to me, but I wanted to see it articulated from someone who knows more about it then I do.

 

I will say that the whole thing is laughable - I just wish they wouldn't do it at all... because it's not worth fighting about politcally, IMO.

[Mplssoxfan]

Allow me to throw some more fuel on the fire.

 

I seem to remember, way back when the subject du jour was alleged desecration of the Koran at Guantanamo and other places, some posters expressing the opinion, (I'll paraphrase, since I can't search for it) "I don't understand the big deal, it's only a book." I remember thinking at the time, "I wonder if these same posters would say that 'the flag is only a piece of cloth'."

[NUKE_CLEVELAND]

Allow me to throw some more fuel on the fire.

 

I seem to remember, way back when the subject du jour was alleged desecration of the Koran at Guantanamo and other places, some posters expressing the opinion, (I'll paraphrase, since I can't search for it) "I don't understand the big deal, it's only a book." I remember thinking at the time, "I wonder if these same posters would say that 'the flag is only a piece of cloth'."

 

 

Apples and oranges.

[WCSox]

Wcsox,

 

Yah just noticed I put possessive there for no reason, but its just an internet board I dont use my trusty wordperfect or spell check even.

 

I was just yanking your chain.

 

I agree that the Ammendment to ban flag burning is stupid and borderline fascist. But I disagree with you on one point...

 

The difference between this [flag-burning] Amendment and Prohibition is simply that prohibition did not try and take away a fundemental right that would require the govt to pass strict scrutiny.

 

There are a lot of people who would argue that the manufacturing and consumption of alcohol is a fundamental right, despite the government's right to regulate its transportation and sale.

[FlaSoxxJim]

Apples and oranges.

 

How, pray tell?

[Soxbadger]

Pratt,

 

I disagree with your opinion.

 

First the first amendment is "a fundemental right" which means it has higher protection than say "drinking alcohol". No one even has taken the time to read my post about rational basis standard of review versus strict scrutiny, instead everyone just relies on the circular logic:

 

"Well if the amendment is part of the constitutional, then it cant be unconstitutional."

 

But that is not true, here we are talking about 2 provisions that are directly in conflict. I do not think that the constitution was written to give Amendment's end all power, especially when that amendment is directly opposed to another amendment, specifically one in the bill of rights.

 

If the precedent is set, where does it end. Can a super majority just make any rule that it wants, regardless of how directly in may oppose the original constitution? The answer in my opinion is no, that should the people of the United States (which the founding fathers did not trust) through the majority pass an amendment that is fundementally opposed to the bill of rights, the Supreme Court has the power to invalidate that Amendment. Because in the end, only the judiciary can enforce the law, so if they are unwilling to enforce, then the law has no effect.

 

Crimson,

 

Not all amendments are equal. Some protect fundemental rights, specifically those in the Bill of Rights. I would think that the Supreme Court would have the common sense to weigh, the 1st Amendment and the new Amendment.

 

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. As compared to flag burning which the Supreme Court has found in Texas v Johnson as proteted by the First Amendment. They are 2 completely different fact patterns, and so far no one has even shown any information regarding the Supreme Court wanting to over turn prohibition. If they did not want to over turn the law, then it did not matter if they had the power.

 

 

 

WCSox,

 

The Supreme Court has consistently disagreed with that opinion though.

 

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.

 

The SC on ther other hand has found flag burning a protected action. I dont necessarily agree with their opinion or rationale, but that is the law and using their laws, Im writing what I believe they would do.

 

The govt stance is not my opinion, I believe that people were given the right to do what they wanted with their own time, so long as they were not hurting/harming anyone else. I guess that is very utilitarian in the end.

[kapkomet]

BTW, folks, nice thread. This is really informative.

[NUKE_CLEVELAND]

Pratt,

 

I disagree with your opinion.

 

First the first amendment is "a fundemental right" which means it has higher protection than say "drinking alcohol". No one even has taken the time to read my post about rational basis standard of review versus strict scrutiny, instead everyone just relies on the circular logic:

 

"Well if the amendment is part of the constitutional, then it cant be unconstitutional."

 

But that is not true, here we are talking about 2 provisions that are directly in conflict. I do not think that the constitution was written to give Amendment's end all power, especially when that amendment is directly opposed to another amendment, specifically one in the bill of rights.

 

If the precedent is set, where does it end. Can a super majority just make any rule that it wants, regardless of how directly in may oppose the original constitution? The answer in my opinion is no, that should the people of the United States (which the founding fathers did not trust) through the majority pass an amendment that is fundementally opposed to the bill of rights, the Supreme Court has the power to invalidate that Amendment. Because in the end, only the judiciary can enforce the law, so if they are unwilling to enforce, then the law has no effect.

 

Crimson,

 

Not all amendments are equal. Some protect fundemental rights, specifically those in the Bill of Rights. I would think that the Supreme Court would have the common sense to weigh, the 1st Amendment and the new Amendment.

 

 

You jumped all over me for the "I believe" and "I suspect" logic and here you are using it a few posts later. Talking out of both sides of your mouth again are we? How can you say that? Is there some provision in the Constitution that gives older amendments precedence over newer ones? Would you say that the post civil-war amendments have less precedence than any of the bill of rights? Where is your research to back up your assertion that certain amendments take precedence over others? Fact of the matter is that the only time there ever has been a serious challenge to one of the amendments, that I can think of off the top of my head, was prohibition and it took another amendment to redress that issue. Fact is that the Constitution and ALL its amendments, whether you find them distasteful or not, are the be-all / end-all of this country's laws.

 

You're pretty much spot on when you say that a super-majority can pretty much pass an amendment at will. The bar is set as high as it is for that very reason. It's extremely unlikely that any one faction of government will be able to wield that much power at any one time and that is what prevents the scenario you have described from ever happening. As it stands right now in order to amend the Constitution the sponsors of the Amendment must have broad, bi-partisan support ( which in the case if the flag-burning amendment they in fact do ).

 

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??

Edited June 17, 2006 by NUKE_CLEVELAND