How on earth is this Constitutional???

atszyman

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http://www.cnn.com/2004/ALLPOLITICS/09/23/pledge.undergod.ap/index.html

WASHINGTON (AP) -- The House passed legislation Thursday that would prevent the Supreme Court from ruling on whether the words "under God" should be stricken from the Pledge of Allegiance.
Can someone here explain how this can be considered even close to within the bounds of the Constitution?

If you view this law as constitutional, what's to prevent Congress from making a law directly opposing free speach and then preventing the courts from hearing cases to declare it unconstitutional?
 

coconn06

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Jun 14, 2003
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atszyman said:
http://www.cnn.com/2004/ALLPOLITICS/09/23/pledge.undergod.ap/index.html



Can someone here explain how this can be considered even close to within the bounds of the Constitution?

If you view this law as constitutional, what's to prevent Congress from making a law directly opposing free speach and then preventing the courts from hearing cases to declare it unconstitutional?
It is simply not constitutional. The House has no authority over the Supreme Court. Not to mention that neither Congress nor the Supreme Court have the power, according to the Constitution to meddle in affairs that concern religion. Unfortunately, the legislators in this country don't care what the Constitution says.
 

stubeeef

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Aug 10, 2004
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It is not constitutional.
Pure political wrangling.
Because most of the population, me included, want "under God" to stay in, they were wanting those opposed to show their hand prior to the election. That way how the voters in each district feel on the issue will be how they vote.
 

coconn06

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Jun 14, 2003
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stubeeef said:
It is not constitutional.
Pure political wrangling.
Because most of the population, me included, want "under God" to stay in, they were wanting those opposed to show their hand prior to the election. That way how the voters in each district feel on the issue will be how they vote.
You're right. But even if you support "under God" being in the PoA (pledge of allegiance), whether or not you are religious, you should understand that it is not constitutional. This country was built on the idea of religious tolerance and freedom, referring to God in a forced PoA alienates all those who don't believe in God.
 

Chip NoVaMac

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Dec 25, 2003
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It probably is not (the reason I say prbably is, that with this USCOTUS, one can assume nothing). Much like Congress trying to tie the hands of the Federal Courts on deciding issues like abortion or Gay rights.

It is "conservative" crap like this that causes me concern. And I use "conservative" for all parties. Withy people like Rove behind the "Bible incident in WV", one has to wonder how soon we see youth military corps marching for the President in the US.
 

atszyman

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stubeeef said:
Because most of the population, me included, want "under God" to stay in, they were wanting those opposed to show their hand prior to the election. That way how the voters in each district feel on the issue will be how they vote.
I don't feel strongly one way or the other on the PoA issue, but how on Earth do the 247 who voted for this bill justify their vote? Personally, I think any politician who voted for it should be kicked out of Washington regardless of political party.

I couldn't vote for it, it is a complete waste of taxpayers time and money to try to pass a law is so obviously unconstitutional. (Yes I knew that before I started the thread, I was trying to see if anyone thought they could justify it).

Edit : general grammer and rephrasing
 

Sayhey

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While I think this bill is an extremely dangerous bill, the framers of the bill are not without Constitutional argument. Here is the language they rest their case on:

Article III Section 2 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. 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.
my emphasis.

US Constitution

This is a measure trying to carve out whole areas of society in which Federal Courts can't not have a say. It was also attempted in relationship to the Federal Courts ruling on gay marriage. This is the political far right's agenda against "activists" judges. A good article to read is this column on Findlaw's website by Marci Hamilton. She says, among many fine points, the following:

This is a remarkable violation of the separation of powers and the Establishment Clause. If the Act were to become law - and if it were, itself, to be upheld as constitutional - only state courts would be able to hear constitutional challenges to the Pledge.

We would therefore have a 50-state collection of views as to what the Free Exercise Clause, and the Establishment Clause, mean in this context. And that would be constitutional lunacy. Moreover, we would have Congress making its actions that involve compelled speech and religious viewpoint unreviewable!
Obviously there would be a case before the Supreme Court to decide whether the establishment clause or the right of Congress to determine jurisdiction held supremacy. I'm guessing the present Court would not uphold Congress in this matter. Another very good reason to make sure Bush can't appoint anymore far right justices.
 

atszyman

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Article III
Section II
Clause 1

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution
So the judicial branch has power over all cases under the Constitution. This may be the reason for the exception in the bill for the Superior Court of the District of Columbia or the District of Columbia Court of Appeals. If they had tried to ban all courts they would have violated Clause 1 but since there is a court that can hear the cases it may be their loophole. Not that the Supremes would let it stand anyway...
 

Sayhey

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The argument is, as I understand it as a non-lawyer, is that the Supreme Court has jurisdiction over all cases outlined in the Constitution and all others arising from it - except for those cases not enumerated in the Constitution and exempted by Congressional action. Of course, Congress can't exempt laws that pertain to rights guaranteed by the Constitution, so it seems hard to understand how Congress has the right to exempt a case relating to the Establishment clause. Still, I wouldn't put it past Scalia and Thomas to support the measure.
 

Chip NoVaMac

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Dec 25, 2003
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stubeeefBecause most of the population said:
You are so behind the times IMO. We are a more inclusive nation than the one that one seem to think we are. Not everyone operates under the concept of "God" as you may think of of Him or Her.

I hope that this post sees the light of day. For we are no longer a nation of WASP's. We are more inclusive as the nation builds towards a nation of of one that is built on all not just one built on the image of ones self.

I am wondering if some people should ride in the back of the bus under 'your world". Or that some should be denied entry based on religion or or "supported organizations". Should we deny entry to those that don't support only Christian or Jewish organizations? Are Buddhists a threat to the "National Security"?

We have allowed ourselves to create a climate of fear. In some ways like Germany in the 1930's. If you want proof look at the laws the Congress have tried to pass in the last year. Same sex benefits, regardless of the "religious" connotations. Or the most recent change at including "GOD" in the Pledge.
 

Chip NoVaMac

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Sayhey said:
Obviously there would be a case before the Supreme Court to decide whether the establishment clause or the right of Congress to determine jurisdiction held supremacy. I'm guessing the present Court would not uphold Congress in this matter. Another very good reason to make sure Bush can't appoint anymore far right justices.
And whether we are discussing this issue or the "Gay Rights" issue; the USOCTUS can not affirm discrimination on most basis. I don't believe that the Founding Fathers ever saw an instance that the rights of the few would outweigh the many. Only since Newt could the Constitution be so perverted.

We should all go looking at the bodies "twirling" in their graves.
 

mactastic

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So the Beefman supports smaller government, but doesn't mind Congress wasting their time on issues even he admits are purely for political advantage in an election season?

Of course if the Dems were pulling something like this, I'm sure he'd be very supportive and understanding of the issue. He probably wouldn't even gripe a bit. :rolleyes:

Think about it Beefster, would you be OK with a liberal Congress making Roe v. Wade unreviewable? And then an activist leftist SCOTUS upholding it?
 

makisushi

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Jul 15, 2004
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coconn06 said:
You're right. But even if you support "under God" being in the PoA (pledge of allegiance), whether or not you are religious, you should understand that it is not constitutional. This country was built on the idea of religious tolerance and freedom, referring to God in a forced PoA alienates all those who don't believe in God.
But the US Founding Fathers did base the foudations of this country with God in mind.
 

Taft

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makisushi said:
But the US Founding Fathers did base the foudations of this country with God in mind.
I think this comment, and the comment it was reffering to, miss the point of the problem completely.

This act of congress is not constitutional (IMO, anyway, and in the opinion of many legal scholars) not because of seperation of church and state issues, but because congress overstepped its powers.

Congress is blatently trying to redefine the powers and abilities of the judicial branch. THAT is what I have an objection to. Congress passes laws and if certain parties have problems with those laws, they will be brought before the judicial branch to be judged. With this act, congress was trying to limit the judicial branch's constitutional duties by telling them which "types" of laws they could rule on. This is well outside the understood role of congress and threatens the ability of the judicial branch to hold the congressional and executive branches in check.

Congress should be able to pass laws and the judicial branch should have the power to declare those laws constitutional (or not). That is the way the system works. This law spits in the face of a well-defined system of checks and balances.

People's opinion of this particular act of congress should not be viewed in the context of whether or not you agree with "Under God" being in the pledge of allegiance. Even if we disagree with each other over divisive issues, we should still work within the bounds of the law to settle those disagreements. By taking a good intention ("We want to keep 'under God' in the pledge!") and purposefully exceeding their charter in order to see that intention implemented, congress is doing a very bad thing.

Taft
 

mischief

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mactastic said:
In mind, not in charge.
Not in charge and certainly not in nearly every Federally Funded program under a thin veneer of non-denominationalist good cheer. The religious Christian sects in this country are calling FAR too many shots of late by claiming that such actions are in line with any Faith. Perhaps someone should tell them about the other 10 or so major religions out there. Perhaps someone should remind them that the deal was that they get to not pay taxes only so long as they don't mess about in politics.
 

mischief

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Taft said:
I think this comment, and the comment it was reffering to, miss the point of the problem completely.

This act of congress is not constitutional (IMO, anyway, and in the opinion of many legal scholars) not because of seperation of church and state issues, but because congress overstepped its powers.
(Snip)

Congress should be able to pass laws and the judicial branch should have the power to declare those laws constitutional (or not). That is the way the system works. This law spits in the face of a well-defined system of checks and balances.

People's opinion of this particular act of congress should not be viewed in the context of whether or not you agree with "Under God" being in the pledge of allegiance. Even if we disagree with each other over divisive issues, we should still work within the bounds of the law to settle those disagreements. By taking a good intention ("We want to keep 'under God' in the pledge!") and purposefully exceeding their charter in order to see that intention implemented, congress is doing a very bad thing.

Taft
Bingo. In fact I, personally would like to see a SCOTUS with more influence and greater nonpartisanship. Perhaps the Judicial should be elected by the Appellate Justices... Perhaps there should be a SC "ref" assigned to sit in the Senate. Perhaps we should increase their budget and staff so they can begin really trimming back the Briar Patch of current Federal and State statutes. Hell, I'd even be inclined to shut Congress down for 9 months out of the year so the SCOTUS can catch up a bit.
 

Taft

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mischief said:
Bingo. In fact I, personally would like to see a SCOTUS with more influence and greater nonpartisanship. Perhaps the Judicial should be elected by the Appellate Justices... Perhaps there should be a SC "ref" assigned to sit in the Senate. Perhaps we should increase their budget and staff so they can begin really trimming back the Briar Patch of current Federal and State statutes. Hell, I'd even be inclined to shut Congress down for 9 months out of the year so the SCOTUS can catch up a bit.
I'd share that view. The whole appointment process, to me, seems politically charged. In fact, it seems to me that the process ENCOURAGES those who make the appointments (the President) to make partisan choices. "If my party gets the opportunity to make a nomination," the thinking goes, "I better nominate someone who is going to be looking out for my interests in the long term."

It also encourages partisan judges to make the decision to retire with a political goal in mind. That would go something like, "I should choose the time of my retirement so that another [insert party here] judge will get nominated to the bench."

Your idea of election of judges is interesting. What I'd like to see is to take the decision out of the hands of a body which can be controlled by a single party. Right now, when a judge retires, the decision is put in the hands of whichever party controls the White House. It would be the same way if Congress chose the judge (one party always has more votes).

Regardless of who is in power, the selection of a judge should be made on the ability to remain unbiased and interpret law fairly. The ultimate goal is to nominate someone who holds the interests of the law above the interests of a political party, group or agenda. That is just not possible if the major parties get to choose the judges.

Taft
 

mactastic

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The polarization of the court only mirrors that of the Congress. What with the redistricting craze wherein the (two and only two thank you) parties draw up and carve out 'safe' districts for themselves. As a result of grouping a bunch of <insert party here> together, you wind up with candidates from those areas stepping all over each other in a race to the far side of their spectrum in order to get elected, rather than striking a balanced posture and having to appeal to the moderates in both parties.

That the SCOTUS follows suit (as they are only appointable if they can be confirmed) is no real surprise.
 

Taft

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mactastic said:
The polarization of the court only mirrors that of the Congress. What with the redistricting craze wherein the (two and only two thank you) parties draw up and carve out 'safe' districts for themselves. As a result of grouping a bunch of <insert party here> together, you wind up with candidates from those areas stepping all over each other in a race to the far side of their spectrum in order to get elected, rather than striking a balanced posture and having to appeal to the moderates in both parties.

That the SCOTUS follows suit (as they are only appointable if they can be confirmed) is no real surprise.
Nor am I surprised. No, disturbed would be the word I'd choose to describe my reaction to the polarization of the SC. When the justices of the SC, those that we trust to monitor our system of laws and ensure that they are being abided, put their party and ideological allegiences over objectively reading the law, we are in real trouble.

Taft
 

makisushi

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Taft said:
When the justices of the SC, those that we trust to monitor our system of laws and ensure that they are being abided, put their party and ideological allegiences over objectively reading the law, we are in real trouble.

Taft
I believe that anyone who thinks the Supreme Court Justices put their ideological allegiances aside to be objective is being slightly niave. "Ideally" this would not happen, but in reality it does. This is exactly why politics is the way it is now. Lots of backstabbing, deal making, comprimises, etc. BUT I don't really see a better alternative.
 

Dont Hurt Me

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I agree with Taft, without the proper checks and balances we are in trouble. It scares me to think what this President and a large republican majority in congress could do to our country, our freedoms and libertys. Seems we do much better when 1 party doesnt run the whole show.
 

coconn06

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Jun 14, 2003
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King of Prussia, PA
Taft said:
I think this comment, and the comment it was reffering to, miss the point of the problem completely.

This act of congress is not constitutional (IMO, anyway, and in the opinion of many legal scholars) not because of seperation of church and state issues, but because congress overstepped its powers.

Congress is blatently trying to redefine the powers and abilities of the judicial branch. THAT is what I have an objection to. Congress passes laws and if certain parties have problems with those laws, they will be brought before the judicial branch to be judged. With this act, congress was trying to limit the judicial branch's constitutional duties by telling them which "types" of laws they could rule on. This is well outside the understood role of congress and threatens the ability of the judicial branch to hold the congressional and executive branches in check.

Congress should be able to pass laws and the judicial branch should have the power to declare those laws constitutional (or not). That is the way the system works. This law spits in the face of a well-defined system of checks and balances.

People's opinion of this particular act of congress should not be viewed in the context of whether or not you agree with "Under God" being in the pledge of allegiance. Even if we disagree with each other over divisive issues, we should still work within the bounds of the law to settle those disagreements. By taking a good intention ("We want to keep 'under God' in the pledge!") and purposefully exceeding their charter in order to see that intention implemented, congress is doing a very bad thing.

Taft
My comment ("the comment this is referring to") did not miss the point. I was responding to another's comment specifically about the "under God" issue. In my original reply (first reply to the author of the thread) you'll see that we are in fact in agreement.
 

IJ Reilly

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Dont Hurt Me said:
I agree with Taft, without the proper checks and balances we are in trouble. It scares me to think what this President and a large republican majority in congress could do to our country, our freedoms and libertys. Seems we do much better when 1 party doesnt run the whole show.
How true. You and I have done a fair bit of verbal arm-wrestling over the years but I find myself in total agreement with you on this point. Bring back divided government, it's our only hope.
 

Taft

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Dont Hurt Me said:
Seems we do much better when 1 party doesnt run the whole show.
DEFINITELY! If I had to pick one of the two major parties to run the country permenently, I'd move to Canada. At least when the two are fighting it out, they seem limited in the amount of damage they can do.

Compromise is a very good thing.

Taft