What the Constitution Says about Constitutionality.

[MineralMan]

Article III.

Section. 1.

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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

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;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

That's what it says. Any issue of constitutionality has only a single arbiter: The Supreme Court of The United States. And appointing justices to that court and the lower courts that feed it cases to rule on is the job of the Executive branch, with consent of the Senate. Nothing else is as important when deciding your vote for President or your Senators. Nothing.

Anyone can say something is "unconsitutional," but that carries no weight whatsoever. Only the SCOTUS can make that decision. How they decide makes all the difference.

GOTV 2014 and Beyond!

[think]

1. The FISA court ruled in 2011 that the NSA was violation of the constitution

This ruling comes after congress made the Bush wiretapping scheme legal in 2009 so that gives you some idea of the potential magnitude of these violations.

http://www.cbsnews.com/2100-250_162-3278012.html

However, the ruling that the NSA violated the constitution is classified. So there is no way to know the who what, when, why, and where of how the NSA violated the constitution.

Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance

Government lawyers are trying to keep buried a classified court finding that a domestic spying program went too far.

—By David Corn
| Fri Jun. 7, 2013 12:22 PM PDT

~Snip~

Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:

* On at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.

* I believe that the government's implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. ...

~Snip~

EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.

~Snip~

Full article:

http://www.motherjones.com/politics/2013/06/justice-department-electronic-frontier-foundation-fisa-court-opinion

So one can argue about the semantics of constitutionality but the fact of the matter is that there is a FISA court ruling in existence that states the NSA violated the constitution even if that very ruling is classified.

[longship]

2. Yup! A distinction some here do not seem to know.

R&

[MineralMan]

4. Well, every declaration that something is "unconstitutional" should

include "In my opinion, which has nothing to do with constitutional realities,..."

Far too many people ignore the bulk of the Constitution and focus only on a small part of the document, when making their arguments. That's especially true of the Amendments, which are also part of the Constitution, as stated in the body of the Constitution. Claims of "unconstitutionality" are essentially moot in every case, unless there has been a tighly-focused SCOTUS ruling to that effect.

Right now, the 4th Amendment is getting a lot of attention, and people are saying all sorts of things about specific laws or actions that "violate" it. The problem is that there have been many 4th Amendment cases before the SCOTUS, and they all turn on the words "unreasonable" and "probable cause." Everything hinges on those two things, and the SCOTUS has ruled on many situations that involve the 4th Amendment.

Again, opinions regarding constitutionality carry no weight. If a situation has not been tested before the SCOTUS, it can't be resolved until it has been tested.

Opinions are not truth. They are opinions. The only opinions that matter for constitutional issues are the majority opinions of the SCOTUS.

GOTV Always!

[RobertEarl]

3. Court sat on its ass

So Snowden had to make the decision about spying not being constitutional.

That's how America is set up. Free men guiding other free men to be free.

After much finagling and bribery, the SCOTUS will finally decide that the spying Snowden exposed is not constitutional.

Snowden is a hero.

[Igel]

5. It carries weight. Just not legal weight.

If people didn't think that slavery wasn't properly unconstitutional while saying it was strictly constitutional (with the needed shift in definitions there) then there would have been no discussion to amend it. Enough people disagreed with the SCOTUS to make it so.

Often when we say "that's unconstitutional" it's not a statement of fact according to some pre-set means of establishing the definitino, but "I think that's unconstitutional" without there being a SCOTUS-prescribed answer or at least not one known to the speaker. Or it's "I think that should be unconstitutional".

If a lot of people say things like that, there may be a lot of disobedience, intentional or not. There'll be disgruntlement, if it matters. Either way, eventually politicians will hear it. There'll be public debate.

So the "my opinion" version also has weight. Just not relevance in a court of law.

The sad thing is is that many consider their opinion to be established fact, or that all that's necessary in a democracy is for enough people to hold an opinion for it to be "true."

[99Forever]

6. Kewl....

... a cafeteria style "Constitutional expert."

How about this?:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

.. or do you just pass on that particular part that doesn't suit your authoritarian worldview?

[MineralMan]

7. See my #4.

The 4th Amendment hinges on the words "unreasonable" and "probable cause." Both require interpretation, and that amendment has been the cause of many, many SCOTUS rulings. It's one of the most argued of the Amendments.

And it's the topic of the day again. There are many individual interpretations of that amendment. They are semantic issues, just as the "well-regulated" modifier is the center of most controversy about the 2nd Amendment.

As clear as those who created the Constitution tried to be, there's always room for argument about the exact verbiage.

That's why the Constitution includes the establishment of a court to make such decisions. Sometimes they get it right. Sometimes they get it wrong. Which times depends on how you look at the language.

Life's complicated.

[99Forever]

9. Hogwash.

Secret courts holding secret hearings, issuing secret blanket "warrants," used by secret police, for secret purposes, to "track" people committing secret crimes.

Yeah right, that's exactly what the Writers of the Constitution had in mind.

Do you ever even read your own nonsense?

[MineralMan]

10. I do read my own stuff, yes.

Thanks for asking.

[99Forever]

14. Do you have any idea of ...

... just how ridiculously weak sauce you look?

[MineralMan]

17. Nope. Nor do I care.

I post my thinking about things. I post my opinion. I expect my opinion to be liked by some and disliked by others.

Sometimes, it's just completely ignored, too. However, many of my posts become threads with lots of discussion. That's why I'm here, and I assume that's why most people are here.

Discussion is a good thing. Personal attacks, not so much.

Thanks for taking the time to reply regarding my opinion.

[woo me with science]

13. First rule of propaganda:

Say everything, even the outrageous and unconscionable, in a Very Serious voice, and with a Very Serious face. A big part of the goal of the constant, drumbeat of "reasonable" discussion of the unconscionable is to *normalize* the unconscionable.

No, legalizing mass surveillance of American citizens is not reasonable by any stretch of the imagination. It is authoritarianism subverting democracy. It is tyranny.

Remember that Ellsberg, as a whistleblower, was taken to court and released on bond. Even members of the propaganda brigade realize that that would never, ever happen now. Snowden has good reason to fear being thrown into solitary or even tortured.

The talking points are insidious and despicable in their attempted legalese that discounts both the letter and the spirit of the Constitution upon which this country was founded. It is rank authoritarianism, and it must be called out for the despicable propaganda it is.

[JaneyVee]

15. I'm guessing you're completely against any form of gun control?

And since you obviously don't trust the govt at all then I'm sure you must think single payer is a terrible idea as well?

[woo me with science]

8. Everything was made legal in Germany, too.

What a bunch of pathetic authoritarian oatmeal.

The propaganda machine is impressive in its scope and interactivity. In content, not so much.


The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

[geek tragedy]

11. Calm down. This is a discussion of legal authorities in the United States.

There are 300 million Americans, but only 9 of them get a final vote on what is and is not constitutional.

[cali]

12. honestly, it's sickening. and sick.

[former9thward]

16. Well you left out the next sentence for some reason...

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.

Congress can determine what cases or types of cases are allowed to go the court. In those cases the SC does not determine constitutionality.

[MineralMan]

18. That's a very interesting clause, too.

I didn't include it, because I was just talking about its role in determining constitutionality.

What is fascinating is that Congress has never really acted on that clause. That's a curious thing. By including appropriate language, Congress could exclude a piece of legislation from review by the Supreme Court, it would seem. And yet, as far as I'm aware, such a thing has never been done. I can only wonder why that is.

Maybe I'm wrong, and Congress has done that at one time or another. If you know of such a case, I'd be interested to go look at it.

[former9thward]

19. I am only aware of one case.

I'm sure most law students have seen it. During Reconstruction, Congress withdrew jurisdiction from a case the U.S. Supreme Court was then in the process of adjudicating. In terminating the case Ex Parte McCardle, 74 US 506 (1869), the Justices acknowledged the authority of Congress to intervene.

We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Most recently Congress passed a law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which stripped the federal judiciary of its jurisdiction to review certain Immigration and Naturalization Service decisions.

[MineralMan]

20. Thank you. I'm not a legal scholar, so I was unaware of those.

I will, though, dig into them. It appears that Congress has a check and balance role, other than impeachment, with which to alter the role of the SCOTUS. It's a wonder that it hasn't been more often used, I think.

We have a complex and intricate system of government, don't we?