warpedskydiver 0 #26 February 12, 2006 Anyone who has ever taken an oath to defend our constitution from all enemies, foreign and domestic had better listen up YOU NEVER SWORE AN OATH TO DEFEND IT WHILE YOU SERVED OR JUST FOR A SHORT PERIOD OF TIME! YOUR OATH MADE YOU SWEAR THAT YOU WOULD DEFEND THE CONSTITUTION FOR THE REST OF YOUR LIFE EVEN IF IT MEANS GIVING UP THAT LIFE TO DO SO!!!! Quote Share this post Link to post Share on other sites
christelsabine 1 #27 February 12, 2006 Holy Moly, ever checked your blood pressure? dudeist skydiver # 3105 Quote Share this post Link to post Share on other sites
ROK 0 #28 February 13, 2006 I agree strongly, but the time is now. Not when the call to dig up the armory comes. Each of us, together, has the power to shape our Nation, as well as the World. We need to use the tools we have at our disposal, and don't ever let up. There's great power in keeping your "enemy" segregated and of two hearts. As long as we overlook the fact that most of us have the same common goals, we will never succeed. We find comfort in fighting one another instead of speaking with a single voice, beacause that would mean that each of us would have to make allowances for the other. Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #29 February 14, 2006 It'll fuckin' suck if they crack down on every motherfucker's use of fuckin' profanity. Those cocksucker fascists love to control freedom of fuckin' speech. It's the first fuckin' thing to go, usually -- at least after the fuckin' gun confiscations. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
Skyrad 0 #30 February 14, 2006 Martial law? You mean that fat chinese cop? Is he running for office?When an author is too meticulous about his style, you may presume that his mind is frivolous and his content flimsy. Lucius Annaeus Seneca Quote Share this post Link to post Share on other sites
Skyrad 0 #31 February 14, 2006 BREATH PJ......breath......Now no one is taking your gun away, ok?.....Breath deep and put yourself into your happy place.....You can take your gun withh you if you like.....Thats it....just keep on breathing..... When an author is too meticulous about his style, you may presume that his mind is frivolous and his content flimsy. Lucius Annaeus Seneca Quote Share this post Link to post Share on other sites
warpedskydiver 0 #32 February 14, 2006 110/70 why? Wan ich gesacht du nicht vergessen!!! did i spell that right? Quote Share this post Link to post Share on other sites Amazon 7 #33 February 14, 2006 IN your case .. not only will they take your guns... but they will require you to not use profanity and to go to churchon Sunday. Quote Share this post Link to post Share on other sites tbrown 26 #34 February 15, 2006 Quote So I would really like to know what you think the NEW America will be like after Tommy Franks prediction of our country under martial law will come true. Personally I will be very sad that such a bold experiment in freedom will be gone. If it ever happens, I would have to say it's a failure of the American system's belief in its own people. If you consider that this country has weathered a foreign invasion (the Brits in the War of 1812, they burned down the White House for pity's sake), rebellion and division into two countries, with the bloodiest war in our history, numerous stock market crashes and depressions, the destruction of San Francisco by earthqualke and fire, a killer flu pandemic (1918), a World War with real powers of evil who almost conquered the world and that was finally settled only with nukes, and a Cold War that came within 3 hrs of world anihilation, I'd say we would be giving up too easily. We made some mistakes along the way. We shouldn't have permitted slavery, we shouldn't have tried to exterminate Native Americans with whiskey, starvation and smallpox. And we shouldn't have locked up loyal Americans of Japanese ancestry. Bottom line is we cannot let it happen. American soldiers are citizen soldiers. Their officer corps is the most educated officer corps in history (but sadly, so was the Nazi SS in their day). The American citizen soldier is going to have to realize they are responsible for what they do to their own families, and that it really is okay, even required, to disobery an illegal order. Never forget that in 1864, Abe Lincoln insisted that a fairly contested Presidential election had to be held as scheduled. His advisors told him he could cancel the election in the name of national security. But Lincoln knew that if he couldn't be legitimately re-elected, the war would be lost. The election went on and one of his own generals ran against him, on a peace platform that would've recognized the Confederacy. Lincoln won by a landslide, mostly on the votes of citizen soldiers who were tired and miserable from a war that had already dragged on for over 3 years. (Of coiurse Lincoln also suspended Habeaus Corpus, so he wasn't exactly a saint either....). Your humble servant.....Professor Gravity ! Quote Share this post Link to post Share on other sites narcimund 0 #35 February 15, 2006 QuoteNever forget that in 1864, Abe Lincoln insisted that a fairly contested Presidential election had to be held as scheduled. Anyone want to take bets on 2008? First Class Citizen Twice Over Quote Share this post Link to post Share on other sites Sen.Blutarsky 0 #36 February 15, 2006 QuoteAnyone want to take bets on 2008? Sure. Blutarsky-ites are a lock. We’ll make planter’s punch of the Dems’ plantation politics. “Swing low, Sweet Chariot fo’ I’m a comin’ on up to carry you h-o-m-e “ … Blutarsky 2008. No Prisoners! Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #37 February 15, 2006 QuoteBREATH PJ......breath......Now no one is taking your gun away, ok?.....Breath deep and put yourself into your happy place.....You can take your gun withh you if you like.....Thats it....just keep on breathing..... Funny, they like to say that the jokes go right over my head. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #38 February 15, 2006 QuoteEveryone, everyone, EVERYONE needs to reread 1984. And then realize that the country hastening most ardently toward it is England itself. - Ban this - Ban that - Define "antisocial behavior" and then ban it - Keep everyone under near-constant surveillance - Confiscate the means of resistance - Indoctrinate everyone to the idea of the government as the people's keeper (the younger the better) - Regulate the people to death - Did I mention the cameras everywhere? --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #39 February 15, 2006 QuoteReally interesting comments, Jerry. QuoteSo, we can see that warrantless searches are allowable under the commerce clause. The founding fathers did not consider telecommunications, and therefore we can create our own laws about it." Isn't that the same argument about handguns, the right to bear arms, and the Second Amendment? That there were no weapons like that then therefore the FF's couldn't have been talking about that...and so we can make our own laws about it (i.r. registration, tracking, owning, et cetera)? Or did I misunderstand your comments, or perhaps misapply them? Just wondering if it's the same thought process... Ciels- Michele I thought it was clear that he was playing devil's advocate, pointing out the absurdity of the contemporary claims made about a "living, breathing Constitution" -- which is the term used by anyone who wants to bend it to do their bidding, outside of what it really is supposed to allow. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #40 February 15, 2006 QuoteQuoteIf that happens, Franks said, “... the Western world, the free world, loses what it cherishes most, and that is freedom and liberty we’ve seen for a couple of hundred years in this grand experiment that we call democracy.” You've mentioned this what, 100 times now? It's a speculative opinion by a retired Army General. Doesn't mean shit. Besides, he's not even a real professor! Oops, wrong thread. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #41 February 15, 2006 QuoteSo I guess you believe it will be a good thing then...as long as you get to be a part of the ruling elite I guess that is just ok then. You seem to be getting more and more detached from reality lately. How you got from what he said to what you said is really puzzling. I guess you just want to have read that, huh? --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #42 February 15, 2006 I always took "living, breathing Constitution" to mean that it can be amended and does not have to remain exactly the way it was first written. NOT that THE SAME WORDS can suddenly be read to have a different meaning from what they had when written. People have bastardized the concept of "living, breathing" to the point where they can claim up means down just because "we're living in different times." It's bullshit. The Constitution lives and breathes because it remains open to being amended -- through proper due process, not by whimsy. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites Amazon 7 #43 February 15, 2006 QuoteYou seem to be getting more and more detached from reality lately. How you got from what he said to what you said is really puzzling. I guess you just want to have read that, huh? I sure am glad you used the crazy emoticon... it explains a lot about some of the posts. But by all means have another bong....and work on it. Quote Share this post Link to post Share on other sites ROK 0 #44 February 15, 2006 People have bastardized the concept of "living, breathing" to the point where they can claim up means down just because "we're living in different times." It's bullshit. The Constitution lives and breathes because it remains open to being amended -- through proper due process, not by whimsy. __________________________________________________ Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. I agree that whimsy is bullshit, and I agree with your point. What "spirit" do you think the above words were written in? Why did our FF believe it necessary to allow the population to be armed? How is it different today, as opposed to their time, and why do the people that scream the loudest about too much government not understand this? The words" security of a FREE state" mean a lot to me. Quote Share this post Link to post Share on other sites brierebecca 0 #45 February 15, 2006 QuoteThe Commernce clause allows the government to regulate any conduct that has any effect on interstate commerce. Actually, per Lopez, the federal government can only regulate things that have a substantial effect on interstate commerce. It's a big difference. Your arguments are interesting, but I have to disagree. What you posit is actually throwing out the rights and requisite remedies already guaranteed in the Constitution (resorting to marial law). I don't know of any progessive Constitutional scholar who advocates dispensing with rights guaranteed in the Constitution. It simply involves interpreting existing rights within the framework of our modern society. Brie"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie Quote Share this post Link to post Share on other sites lawrocket 3 #46 February 16, 2006 Ahh, but Lopez is old law. Need I refer you to the recent case (it won't be in your casebook) that referred to purely intrastate growth, possession and use of marijuana? So backyard cultivation and use of marijuana can be blocked by the feds because of its social and financial implications. The "substantial effect" test that you mentioned from Lopez, do you recall that there need only be a rational basis for concluding that an activity has a substantial effect? In other words, it doesn't need to be shown, it's just gotta be rational to conclude it. The respondents in Gonales v. Raich relied a lot on Lopez and Morrison. The court didn't care. I'll paraphrase, "Sure, this is purely intrastate conduct. But, it's part of a national regulatory scheme. There is a legitimate reason for regulating the interstate sale and trafficking of marijuana. To allow purely intrastate personal growth and consumption to escape this scheme would undermine the regulatory system." So, what the court concluded ws that something that can have an effect on something that can have a substantial effect on interstate commerce can be regulated. So the court relied on Wickard v. Fillburn. Unlike Lopez, which dealt with mere possession of a weapon, or Morrison, which dealt with the non-economic activities of rape, we can't have people producing a commodity for themselves that is not regulated. I'd suggest you read the case (Gonzales v. Raich) where the majority calls the use of Lopez or Morrison "myopic." Then read the dissents by O'Connor and Thomas.. QuoteActually, per Lopez, the federal government can only regulate things that have a substantial effect on interstate commerce. Point 2: Lopez doesn't apply. I would recommend that you re-read your hornbooks. Under Perez, the feds can regulate: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Now, Raich and Lopez were both dealign with #3. I'm talking about the phonelines in my hypo (it's my hypo - don't change it). In my hypo, regulation of activities in phone lines would fall under regulating a channel of interstate commerce. Right? Lopez and Morrison go on the third, which are activities that do not affect. But, go into the "Necessary and Proper Clause," okay? Congress finds that it is important to destroy the interstate market for pot. It can do what is necessary and proper for this. To ensure destruction of the interstate market, you've got to destroy the intrastate? Get it? So, in order to protect us from terrorism outside our borders, we've got to protect ourselves inside our borders. By whatever means are necessary and proper. If you choose to use a phone line (channel of interstate commerce, therefore Lopez and Morrison dont' apply) then I'd suggest you think hard about how this can be done. QuoteI don't know of any progessive Constitutional scholar who advocates dispensing with rights guaranteed in the Constitution. Such as the 9th amendment? What about the right to "privacy?" What about the 10th Amendment, which allows states to do their own thing? The commerce clause trumps that, you know. Understand that there is an irreconcilable tension between rights. ONe side will win and another will lose. So, tell me, how do you reconcile the Commerce Clause's dominance with the Raich case and it's implications for the 9th and 10th Amendments? Hwo do you see "interstate commerce" consisting of "purely intrastate" activities prevailing over police power and the deference of the 9th and 10th Amendments? QuoteIt simply involves interpreting existing rights within the framework of our modern society. Which is exactly what I did. Only you dont' like the result. You haven't touched my logic with your Lopez logic. Lopez doesn't apply in my hypo. Now, go back to your hornbooks and casebooks and notes and tell me why I am wrong. And I hope your response is, "It'll never happen." It CAN happen. 70 years of jurisprudence proves it. And without more Thomases on the court, there's a pretty good chance it WILL happen. My wife is hotter than your wife. Quote Share this post Link to post Share on other sites peacefuljeffrey 0 #47 February 16, 2006 QuoteAmendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. I agree that whimsy is bullshit, and I agree with your point. What "spirit" do you think the above words were written in? Why did our FF believe it necessary to allow the population to be armed? How is it different today, as opposed to their time, and why do the people that scream the loudest about too much government not understand this? The words" security of a FREE state" mean a lot to me. Once can consult a large number of writings that make clear the founding fathers' intent, and their feelings regarding the people's ability to keep government in check. Because that amendment was written with a certain meaning, if the times have changed and it is no longer necessary, the amendment does not lose its force just for being no longer necessary -- it would have to be repealed. A law that no one uses, but which is still on the books, is still a law that has, well, the force of law. If a society feels it is obsolete, that society can go ahead and take it off the books, through the proper legal means. But until then, it's the law. The second amendment may have been written when the best people had were muskets, but the underlying principle has not changed: the people must retain the ability to use force so that any government that opts to turn tyrannical must fear them. But this is not the thread in which to discuss whether the government "with all its F-15s and tanks and missiles" needs to fear the populace. 80,000,000 gun owners fighting a guerrilla war against about a million military personnel (how many of them are pencil-pushers?) is not something to sneeze at. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites warpedskydiver 0 #48 February 16, 2006 QuoteReally interesting comments, Jerry. QuoteSo, we can see that warrantless searches are allowable under the commerce clause. The founding fathers did not consider telecommunications, and therefore we can create our own laws about it." Isn't that the same argument about handguns, the right to bear arms, and the Second Amendment? That there were no weapons like that then therefore the FF's couldn't have been talking about that...and so we can make our own laws about it (i.r. registration, tracking, owning, et cetera)? Or did I misunderstand your comments, or perhaps misapply them? Just wondering if it's the same thought process... Ciels- Michele God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty.... And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure." Thomas Jefferson Papers, 334 (C.J. Boyd, Ed., 1950) Quote Share this post Link to post Share on other sites brierebecca 0 #49 February 16, 2006 QuoteSo, in order to protect us from terrorism outside our borders, we've got to protect ourselves inside our borders. By whatever means are necessary and proper. If you choose to use a phone line (channel of interstate commerce, therefore Lopez and Morrison dont' apply) then I'd suggest you think hard about how this can be done Find me a case interpreting the use of a phone line as a "channel of interstate commerce," and I'll concede. Because from what I've read, cases interpreting both "channels" and "instrumentalities" of commerce are pretty rare. My initial search hasn't yeilded one. You can't say that one phone call in one state fits into one of those categories without some support. Because most of the cases dealing with Perez have focused on the third category, I gave it greater weight. Necessary and Proper Clause...need I remind you that our legislature hasn't actually declared war on terrorism or Iraq? It's all Bush rhetoric. He doens't get the Necessary and Proper Clause blank check (like what happened when we were putting Asian Americans into ghettos in WWII), until an actual war is declared. We're not to the point where the administration can unilaterally override our rights and suffer no legal consequences. Even the bypass of the FISA courts is getting some governmental attention, and that wouldn't fly if we had declared war. I'm with you on Bush. I just don't think you can attribute his blatant disregard of the law with a progressive view of the Constitution. Thanks for the input, though. I'm being serious. Brie"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie Quote Share this post Link to post Share on other sites lawrocket 3 #50 February 17, 2006 Perez was from, what, 1971? It was a nice explanation of things. I guess you are right on one thing - Lopez can be used to show that telephones, if connected to an interstate telephone system, can be regulated by the commerce clause. I went to Yahoo and typed in "telephone 'interstate commerce'" and here's my first hit.http://216.109.125.130/search/cache?p=telephone+%22interstate+commerce%22&sm=Yahoo%21+Search&fr=FP-tab-web-t&toggle=1&cop=&ei=UTF-8&u=www.ca8.uscourts.gov/opndir/04/05/032855P.pdf&w=telephone+%22interstate+commerce%22&d=RgE8XG1aMNhv&icp=1&.intl=us also, in Goldberg v. Sweet (1989) 488 US 252, the issue was one of the dormant commerce clause asking whether the state of Illinois could tax phone calls originating or terminating in illinois. I mean, get real! Are you telling me that telephones are not channels of interstate commerce? I apologize. They are "instrumentalities" of interstate commerce. Several circuits have held this. They can be regulated by the feds. Which is why there is plenty of regulation. Title 18 USC is loaded with them. it's where you'll find things like wire fraud, or where communication of threat through the phone or "other instrument of interstate or foreign commerce." Gee, we've even got an entire title, Title 47 of the United States Code called, "Telegraphs, Telephones, and Radiotelegraphs." That's why there is a Federal Communicatiosn Commission. QuoteBecause most of the cases dealing with Perez have focused on the third category, I gave it greater weight It turns out that numerous cases have held this with telephones under the second category of Lopez. And giving greater weight to something because more cases talk about it is a strange way of doing things. Quoteneed I remind you that our legislature hasn't actually declared war on terrorism or Iraq? It's all Bush rhetoric No need to remind me. We haven't had a declaration of war since December, 1941. But, considering Gulf of Tonkin, and the model of presidential warmaking displayed by Bush, Sr. in Kuwait, so what? QuoteHe doens't get the Necessary and Proper Clause blank check (like what happened when we were putting Asian Americans into ghettos in WWII), until an actual war is declared. Nope. He CAN'T use the Necessary and Proper Clause without Congressional assistance (it's in Article I, Section 8, which means Congress gets to use it, not the POTUS). Now, my strict constructionist self would argue that Congress can only make laws if the failure to pass the law would cripple another enumerated power. But, considering the sheer size of the federal register, my side loses. It's why my hypo stated the following: "The new law, passed via the commerce clause, ensures that anyone who utilizes public transportation routes or interstate communications equipment waives constitutional rights to warrantless searches." I guess inherent in that was that Congress passed a law, not the president. QuoteWe're not to the point where the administration can unilaterally override our rights and suffer no legal consequences Really? Tell that to some folsk down at Gitmo. Tell that to some folks who've been illegally wiretapped. QuoteI just don't think you can attribute his blatant disregard of the law with a progressive view of the Constitution. But you will attribute FDR's blatant disregard of the law with a progressive view? What about Lincoln's? What about Thomas Jefferson's (tell me where he had the authority to make the Louisiana Purchase? You'll be looking for a long time). No, you'll find it "progressive" if it meets your desired substantive outcome. As I have said, I am generally in agreement with the "progressive" outcomes of rulings of the activist courts, especially with regard to 4th Amendment jurisprudence. But, we aren't taling about "substance." We're taling about "procedure." It was great when only we had nukes, because we'd do good with them, right? Then the Russians got them. Oh, shit. Progressives used new and unique procedures that have now been ingrained into our way of doing things. Guess what? Progressives had nukes. Now Bush has them. "Oh, shit. He's using OUR reasons to get his OWN way." Any degree of intellectual honesty would demonstrate this. It's why I say that as much as I am happy with progressive outcomes, I shudder at the way they are getting these outcomes because of the danger that the process could be used the wrong way. Stare decisis is a nice thing. Modus decisis is pretty bitchin' when used in your favor. It's fucking scary when used against you. My wife is hotter than your wife. 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Amazon 7 #33 February 14, 2006 IN your case .. not only will they take your guns... but they will require you to not use profanity and to go to churchon Sunday. Quote Share this post Link to post Share on other sites
tbrown 26 #34 February 15, 2006 Quote So I would really like to know what you think the NEW America will be like after Tommy Franks prediction of our country under martial law will come true. Personally I will be very sad that such a bold experiment in freedom will be gone. If it ever happens, I would have to say it's a failure of the American system's belief in its own people. If you consider that this country has weathered a foreign invasion (the Brits in the War of 1812, they burned down the White House for pity's sake), rebellion and division into two countries, with the bloodiest war in our history, numerous stock market crashes and depressions, the destruction of San Francisco by earthqualke and fire, a killer flu pandemic (1918), a World War with real powers of evil who almost conquered the world and that was finally settled only with nukes, and a Cold War that came within 3 hrs of world anihilation, I'd say we would be giving up too easily. We made some mistakes along the way. We shouldn't have permitted slavery, we shouldn't have tried to exterminate Native Americans with whiskey, starvation and smallpox. And we shouldn't have locked up loyal Americans of Japanese ancestry. Bottom line is we cannot let it happen. American soldiers are citizen soldiers. Their officer corps is the most educated officer corps in history (but sadly, so was the Nazi SS in their day). The American citizen soldier is going to have to realize they are responsible for what they do to their own families, and that it really is okay, even required, to disobery an illegal order. Never forget that in 1864, Abe Lincoln insisted that a fairly contested Presidential election had to be held as scheduled. His advisors told him he could cancel the election in the name of national security. But Lincoln knew that if he couldn't be legitimately re-elected, the war would be lost. The election went on and one of his own generals ran against him, on a peace platform that would've recognized the Confederacy. Lincoln won by a landslide, mostly on the votes of citizen soldiers who were tired and miserable from a war that had already dragged on for over 3 years. (Of coiurse Lincoln also suspended Habeaus Corpus, so he wasn't exactly a saint either....). Your humble servant.....Professor Gravity ! Quote Share this post Link to post Share on other sites
narcimund 0 #35 February 15, 2006 QuoteNever forget that in 1864, Abe Lincoln insisted that a fairly contested Presidential election had to be held as scheduled. Anyone want to take bets on 2008? First Class Citizen Twice Over Quote Share this post Link to post Share on other sites
Sen.Blutarsky 0 #36 February 15, 2006 QuoteAnyone want to take bets on 2008? Sure. Blutarsky-ites are a lock. We’ll make planter’s punch of the Dems’ plantation politics. “Swing low, Sweet Chariot fo’ I’m a comin’ on up to carry you h-o-m-e “ … Blutarsky 2008. No Prisoners! Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #37 February 15, 2006 QuoteBREATH PJ......breath......Now no one is taking your gun away, ok?.....Breath deep and put yourself into your happy place.....You can take your gun withh you if you like.....Thats it....just keep on breathing..... Funny, they like to say that the jokes go right over my head. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #38 February 15, 2006 QuoteEveryone, everyone, EVERYONE needs to reread 1984. And then realize that the country hastening most ardently toward it is England itself. - Ban this - Ban that - Define "antisocial behavior" and then ban it - Keep everyone under near-constant surveillance - Confiscate the means of resistance - Indoctrinate everyone to the idea of the government as the people's keeper (the younger the better) - Regulate the people to death - Did I mention the cameras everywhere? --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #39 February 15, 2006 QuoteReally interesting comments, Jerry. QuoteSo, we can see that warrantless searches are allowable under the commerce clause. The founding fathers did not consider telecommunications, and therefore we can create our own laws about it." Isn't that the same argument about handguns, the right to bear arms, and the Second Amendment? That there were no weapons like that then therefore the FF's couldn't have been talking about that...and so we can make our own laws about it (i.r. registration, tracking, owning, et cetera)? Or did I misunderstand your comments, or perhaps misapply them? Just wondering if it's the same thought process... Ciels- Michele I thought it was clear that he was playing devil's advocate, pointing out the absurdity of the contemporary claims made about a "living, breathing Constitution" -- which is the term used by anyone who wants to bend it to do their bidding, outside of what it really is supposed to allow. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #40 February 15, 2006 QuoteQuoteIf that happens, Franks said, “... the Western world, the free world, loses what it cherishes most, and that is freedom and liberty we’ve seen for a couple of hundred years in this grand experiment that we call democracy.” You've mentioned this what, 100 times now? It's a speculative opinion by a retired Army General. Doesn't mean shit. Besides, he's not even a real professor! Oops, wrong thread. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #41 February 15, 2006 QuoteSo I guess you believe it will be a good thing then...as long as you get to be a part of the ruling elite I guess that is just ok then. You seem to be getting more and more detached from reality lately. How you got from what he said to what you said is really puzzling. I guess you just want to have read that, huh? --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #42 February 15, 2006 I always took "living, breathing Constitution" to mean that it can be amended and does not have to remain exactly the way it was first written. NOT that THE SAME WORDS can suddenly be read to have a different meaning from what they had when written. People have bastardized the concept of "living, breathing" to the point where they can claim up means down just because "we're living in different times." It's bullshit. The Constitution lives and breathes because it remains open to being amended -- through proper due process, not by whimsy. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
Amazon 7 #43 February 15, 2006 QuoteYou seem to be getting more and more detached from reality lately. How you got from what he said to what you said is really puzzling. I guess you just want to have read that, huh? I sure am glad you used the crazy emoticon... it explains a lot about some of the posts. But by all means have another bong....and work on it. Quote Share this post Link to post Share on other sites
ROK 0 #44 February 15, 2006 People have bastardized the concept of "living, breathing" to the point where they can claim up means down just because "we're living in different times." It's bullshit. The Constitution lives and breathes because it remains open to being amended -- through proper due process, not by whimsy. __________________________________________________ Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. I agree that whimsy is bullshit, and I agree with your point. What "spirit" do you think the above words were written in? Why did our FF believe it necessary to allow the population to be armed? How is it different today, as opposed to their time, and why do the people that scream the loudest about too much government not understand this? The words" security of a FREE state" mean a lot to me. Quote Share this post Link to post Share on other sites
brierebecca 0 #45 February 15, 2006 QuoteThe Commernce clause allows the government to regulate any conduct that has any effect on interstate commerce. Actually, per Lopez, the federal government can only regulate things that have a substantial effect on interstate commerce. It's a big difference. Your arguments are interesting, but I have to disagree. What you posit is actually throwing out the rights and requisite remedies already guaranteed in the Constitution (resorting to marial law). I don't know of any progessive Constitutional scholar who advocates dispensing with rights guaranteed in the Constitution. It simply involves interpreting existing rights within the framework of our modern society. Brie"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie Quote Share this post Link to post Share on other sites
lawrocket 3 #46 February 16, 2006 Ahh, but Lopez is old law. Need I refer you to the recent case (it won't be in your casebook) that referred to purely intrastate growth, possession and use of marijuana? So backyard cultivation and use of marijuana can be blocked by the feds because of its social and financial implications. The "substantial effect" test that you mentioned from Lopez, do you recall that there need only be a rational basis for concluding that an activity has a substantial effect? In other words, it doesn't need to be shown, it's just gotta be rational to conclude it. The respondents in Gonales v. Raich relied a lot on Lopez and Morrison. The court didn't care. I'll paraphrase, "Sure, this is purely intrastate conduct. But, it's part of a national regulatory scheme. There is a legitimate reason for regulating the interstate sale and trafficking of marijuana. To allow purely intrastate personal growth and consumption to escape this scheme would undermine the regulatory system." So, what the court concluded ws that something that can have an effect on something that can have a substantial effect on interstate commerce can be regulated. So the court relied on Wickard v. Fillburn. Unlike Lopez, which dealt with mere possession of a weapon, or Morrison, which dealt with the non-economic activities of rape, we can't have people producing a commodity for themselves that is not regulated. I'd suggest you read the case (Gonzales v. Raich) where the majority calls the use of Lopez or Morrison "myopic." Then read the dissents by O'Connor and Thomas.. QuoteActually, per Lopez, the federal government can only regulate things that have a substantial effect on interstate commerce. Point 2: Lopez doesn't apply. I would recommend that you re-read your hornbooks. Under Perez, the feds can regulate: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that “substantially affect” interstate commerce. Now, Raich and Lopez were both dealign with #3. I'm talking about the phonelines in my hypo (it's my hypo - don't change it). In my hypo, regulation of activities in phone lines would fall under regulating a channel of interstate commerce. Right? Lopez and Morrison go on the third, which are activities that do not affect. But, go into the "Necessary and Proper Clause," okay? Congress finds that it is important to destroy the interstate market for pot. It can do what is necessary and proper for this. To ensure destruction of the interstate market, you've got to destroy the intrastate? Get it? So, in order to protect us from terrorism outside our borders, we've got to protect ourselves inside our borders. By whatever means are necessary and proper. If you choose to use a phone line (channel of interstate commerce, therefore Lopez and Morrison dont' apply) then I'd suggest you think hard about how this can be done. QuoteI don't know of any progessive Constitutional scholar who advocates dispensing with rights guaranteed in the Constitution. Such as the 9th amendment? What about the right to "privacy?" What about the 10th Amendment, which allows states to do their own thing? The commerce clause trumps that, you know. Understand that there is an irreconcilable tension between rights. ONe side will win and another will lose. So, tell me, how do you reconcile the Commerce Clause's dominance with the Raich case and it's implications for the 9th and 10th Amendments? Hwo do you see "interstate commerce" consisting of "purely intrastate" activities prevailing over police power and the deference of the 9th and 10th Amendments? QuoteIt simply involves interpreting existing rights within the framework of our modern society. Which is exactly what I did. Only you dont' like the result. You haven't touched my logic with your Lopez logic. Lopez doesn't apply in my hypo. Now, go back to your hornbooks and casebooks and notes and tell me why I am wrong. And I hope your response is, "It'll never happen." It CAN happen. 70 years of jurisprudence proves it. And without more Thomases on the court, there's a pretty good chance it WILL happen. My wife is hotter than your wife. Quote Share this post Link to post Share on other sites
peacefuljeffrey 0 #47 February 16, 2006 QuoteAmendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. I agree that whimsy is bullshit, and I agree with your point. What "spirit" do you think the above words were written in? Why did our FF believe it necessary to allow the population to be armed? How is it different today, as opposed to their time, and why do the people that scream the loudest about too much government not understand this? The words" security of a FREE state" mean a lot to me. Once can consult a large number of writings that make clear the founding fathers' intent, and their feelings regarding the people's ability to keep government in check. Because that amendment was written with a certain meaning, if the times have changed and it is no longer necessary, the amendment does not lose its force just for being no longer necessary -- it would have to be repealed. A law that no one uses, but which is still on the books, is still a law that has, well, the force of law. If a society feels it is obsolete, that society can go ahead and take it off the books, through the proper legal means. But until then, it's the law. The second amendment may have been written when the best people had were muskets, but the underlying principle has not changed: the people must retain the ability to use force so that any government that opts to turn tyrannical must fear them. But this is not the thread in which to discuss whether the government "with all its F-15s and tanks and missiles" needs to fear the populace. 80,000,000 gun owners fighting a guerrilla war against about a million military personnel (how many of them are pencil-pushers?) is not something to sneeze at. --Jeffrey "With tha thoughts of a militant mind... Hard line, hard line after hard line!" Quote Share this post Link to post Share on other sites
warpedskydiver 0 #48 February 16, 2006 QuoteReally interesting comments, Jerry. QuoteSo, we can see that warrantless searches are allowable under the commerce clause. The founding fathers did not consider telecommunications, and therefore we can create our own laws about it." Isn't that the same argument about handguns, the right to bear arms, and the Second Amendment? That there were no weapons like that then therefore the FF's couldn't have been talking about that...and so we can make our own laws about it (i.r. registration, tracking, owning, et cetera)? Or did I misunderstand your comments, or perhaps misapply them? Just wondering if it's the same thought process... Ciels- Michele God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty.... And what country can preserve its liberties, if it's rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure." Thomas Jefferson Papers, 334 (C.J. Boyd, Ed., 1950) Quote Share this post Link to post Share on other sites
brierebecca 0 #49 February 16, 2006 QuoteSo, in order to protect us from terrorism outside our borders, we've got to protect ourselves inside our borders. By whatever means are necessary and proper. If you choose to use a phone line (channel of interstate commerce, therefore Lopez and Morrison dont' apply) then I'd suggest you think hard about how this can be done Find me a case interpreting the use of a phone line as a "channel of interstate commerce," and I'll concede. Because from what I've read, cases interpreting both "channels" and "instrumentalities" of commerce are pretty rare. My initial search hasn't yeilded one. You can't say that one phone call in one state fits into one of those categories without some support. Because most of the cases dealing with Perez have focused on the third category, I gave it greater weight. Necessary and Proper Clause...need I remind you that our legislature hasn't actually declared war on terrorism or Iraq? It's all Bush rhetoric. He doens't get the Necessary and Proper Clause blank check (like what happened when we were putting Asian Americans into ghettos in WWII), until an actual war is declared. We're not to the point where the administration can unilaterally override our rights and suffer no legal consequences. Even the bypass of the FISA courts is getting some governmental attention, and that wouldn't fly if we had declared war. I'm with you on Bush. I just don't think you can attribute his blatant disregard of the law with a progressive view of the Constitution. Thanks for the input, though. I'm being serious. Brie"Ive seen you hump air, hump the floor of the plane, and hump legs. You now have a new nickname: "Black Humper of Death"--yardhippie Quote Share this post Link to post Share on other sites
lawrocket 3 #50 February 17, 2006 Perez was from, what, 1971? It was a nice explanation of things. I guess you are right on one thing - Lopez can be used to show that telephones, if connected to an interstate telephone system, can be regulated by the commerce clause. I went to Yahoo and typed in "telephone 'interstate commerce'" and here's my first hit.http://216.109.125.130/search/cache?p=telephone+%22interstate+commerce%22&sm=Yahoo%21+Search&fr=FP-tab-web-t&toggle=1&cop=&ei=UTF-8&u=www.ca8.uscourts.gov/opndir/04/05/032855P.pdf&w=telephone+%22interstate+commerce%22&d=RgE8XG1aMNhv&icp=1&.intl=us also, in Goldberg v. Sweet (1989) 488 US 252, the issue was one of the dormant commerce clause asking whether the state of Illinois could tax phone calls originating or terminating in illinois. I mean, get real! Are you telling me that telephones are not channels of interstate commerce? I apologize. They are "instrumentalities" of interstate commerce. Several circuits have held this. They can be regulated by the feds. Which is why there is plenty of regulation. Title 18 USC is loaded with them. it's where you'll find things like wire fraud, or where communication of threat through the phone or "other instrument of interstate or foreign commerce." Gee, we've even got an entire title, Title 47 of the United States Code called, "Telegraphs, Telephones, and Radiotelegraphs." That's why there is a Federal Communicatiosn Commission. QuoteBecause most of the cases dealing with Perez have focused on the third category, I gave it greater weight It turns out that numerous cases have held this with telephones under the second category of Lopez. And giving greater weight to something because more cases talk about it is a strange way of doing things. Quoteneed I remind you that our legislature hasn't actually declared war on terrorism or Iraq? It's all Bush rhetoric No need to remind me. We haven't had a declaration of war since December, 1941. But, considering Gulf of Tonkin, and the model of presidential warmaking displayed by Bush, Sr. in Kuwait, so what? QuoteHe doens't get the Necessary and Proper Clause blank check (like what happened when we were putting Asian Americans into ghettos in WWII), until an actual war is declared. Nope. He CAN'T use the Necessary and Proper Clause without Congressional assistance (it's in Article I, Section 8, which means Congress gets to use it, not the POTUS). Now, my strict constructionist self would argue that Congress can only make laws if the failure to pass the law would cripple another enumerated power. But, considering the sheer size of the federal register, my side loses. It's why my hypo stated the following: "The new law, passed via the commerce clause, ensures that anyone who utilizes public transportation routes or interstate communications equipment waives constitutional rights to warrantless searches." I guess inherent in that was that Congress passed a law, not the president. QuoteWe're not to the point where the administration can unilaterally override our rights and suffer no legal consequences Really? Tell that to some folsk down at Gitmo. Tell that to some folks who've been illegally wiretapped. QuoteI just don't think you can attribute his blatant disregard of the law with a progressive view of the Constitution. But you will attribute FDR's blatant disregard of the law with a progressive view? What about Lincoln's? What about Thomas Jefferson's (tell me where he had the authority to make the Louisiana Purchase? You'll be looking for a long time). No, you'll find it "progressive" if it meets your desired substantive outcome. As I have said, I am generally in agreement with the "progressive" outcomes of rulings of the activist courts, especially with regard to 4th Amendment jurisprudence. But, we aren't taling about "substance." We're taling about "procedure." It was great when only we had nukes, because we'd do good with them, right? Then the Russians got them. Oh, shit. Progressives used new and unique procedures that have now been ingrained into our way of doing things. Guess what? Progressives had nukes. Now Bush has them. "Oh, shit. He's using OUR reasons to get his OWN way." Any degree of intellectual honesty would demonstrate this. It's why I say that as much as I am happy with progressive outcomes, I shudder at the way they are getting these outcomes because of the danger that the process could be used the wrong way. Stare decisis is a nice thing. Modus decisis is pretty bitchin' when used in your favor. It's fucking scary when used against you. My wife is hotter than your wife. Quote Share this post Link to post Share on other sites
