On Sat, Nov 23, 2013 at 5:00 AM, meekerdb <meeke...@verizon.net> wrote:
> On 11/22/2013 5:38 AM, Telmo Menezes wrote:
>
> On Thu, Nov 21, 2013 at 7:51 PM, meekerdb <meeke...@verizon.net> wrote:
>
> On 11/21/2013 1:50 AM, Bruno Marchal wrote:
>
> On 20 Nov 2013, at 22:20, Richard Ruquist wrote:
>
> Chief Supreme Court Justice Marshall usurped the Constitution
> when he maintained that the Supreme Court had the right to rule
> laws made by Congress and signed by the President unconstitutional.
> As a result the USA is essentially ruled by the Supreme Court
>
>  There is no provision in the US Constitution for this right.
> Congress instead has the right to regulate the Supreme Court,
>
>
>
> The supreme court has judged the NDAA 2012 anti-constitutional. But
> apparently this has changed nothing. I don't find information on this. Some
> sites on this  have just disappeared.
>
>
> It changed nothing because it didn't happen.  First, the NDAA authorizes the
> defense budget and other things.  The Supremes would not have found it
> "anti-constitutional".  The controversial provision you may be thinking of
> was clause that affirmed the Presidents power to detain people without trial
> as set out in the 2001 resolution following the 9/11 attack.  The ACLU has
> challenged this provision and a case was brought in 2012, Hedge v Obama.  A
> district court ruled that the indefinite detention provision was
> unconstitutional and gave an injunction against its use.  This went up
> through the layers of appeals courts.  The Supreme Court threw out the
> injunction on the grounds that the plaintiffs lacked legal standing to bring
> the case - and so in effect upheld the law without actually ruling on
> whether or not it is constitutional.
>
> This is an aspect of U.S. law inherited from English law, that only persons
> who are actually harmed by a law can challenge it in court.  More modern
> democracies, seeing the importance of the U.S. Supreme Court in being able
> to nullify unconstitutional laws, have explicitly provided for court review
> of laws without there having to be a plaintiff and a case.
>
> Brent,
>
> I would say you're making an implicit extraordinary claim here. This
> claim being that the reason why certain fundamental rights (like the
> right to a trial) are not being is bureaucratic impediment, as opposed
> to these impediments being created for the purpose of preventing the
> application of said rights in practice.
>
>
> ?? Left out some words?

Only one, I think, but it ruined the paragraph. Sorry.
"...certain fundamental rights are not being upheld is bureaucratic
impediment,..."

> I argue that this claim is extraordinary for the following reasons:
>
> - The President signed the NDAA. He also swore to defend the
> constitution and he's supposed to be a constitutional expert, so it is
> not likely that he is not aware that citizens have a fundamental right
> to a trial.
>
>
> The controversial clause of the NDAA only applies to citizens who have taken
> up arms or aided organizations

Of course "aiding" said organizations can be defined as anything that
goes against the government's wishes. Especially when we have to take
the Government's word on even the existence of such organisations.

> that have taken up arms against the U.S. and
> only for the duration of the war against Al Quida and the Taliban.

How can a war against an undefined enemy and with undefined goals ever
stop? Can you imagine a scenario where the government says: "ok guys,
we won the war on terror. Well done everyone, it's over". And the
sailors kiss their girlfriends in Times Square and everything goes
back to normal.

> So you
> are confused on several counts.  This is what the 6th amendment actually
> says:
>
> "In all criminal prosecutions, the accused shall enjoy the right to a speedy
> and public trial, by an impartial jury of the state and district wherein the
> crime shall have been committed, which district shall have been previously
> ascertained by law, and to be informed of the nature and cause of the
> accusation; to be confronted with the witnesses against him; to have
> compulsory process for obtaining witnesses in his favor, and to have the
> assistance of counsel for his defense."
>
> Note that it refers to a criminal trial.  An enemy soldier captured in
> wartime is not a criminal.

Yes, but they redefined what an "enemy soldier" is and also what "wartime" is.

> Second, it clearly refers to crimes committed in
> a state or district of the U.S. - not Afghanistan or Iraq.  So it is not at
> all unconstitutional to deny a trial to those captives in Guantanomo.

Right, this one is just a violation of the Universal Declaration of
Human Rights, namely article 5:

"No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment."

I assume you don't need me to link photos?

> I agree that they should be tried, but the use of a military tribunal is
> certainly not unconstitutional.
>
>
>
> He was not forced to sign the NDAA by bureaucracy (he
> might have been forced in other ways, but here we get into pure
> speculation). It was fully within his powers not to sign it or to
> demand changes;
>
>
> Demanding things of Congress doesn't necessarily get them (particularly when
> the House is controlled by the Republicans).

So what? He didn't even try.

> - Harm is a very subjective word. If the Supreme Court was interested
> in upholding fundamental rights, it could easily interpret loss of
> fundamental human rights as harm;
>
> The point is that the people who were plaintiffs in the case weren't harmed.

According to some convenient definition of harm, where losing money is
harm but losing rights is not.

>
>
> - The bureaucratic impediments seem to work mostly in a direction of
> loss of freedom. Empirically, it does not look plausible that they are
> just neutral attrition -- they prevent Guantanamo from being closed,
> they allow for total surveillance, they allow the Federal Government
> to go after marijuana businesses that were authorised by their states,
> they allow for "free speech zones", they allow for random road check
> points and so on;
>
> - The constitution is the highest law. If people were serious about
> following it, they couldn't possible let some lower level law get in
> the way. It's a truism that anything that prevents the application of
> constitutional principles is unconstitutional, and a lot of people in
> the USA swore to defend the constitution.
>
>
> And they are.  You are just assuming that it says what you think it should
> say, instead of what it actually says.

If you redefine certain common words like "enemy" or "war" you can go
around any constitutional provision.

Telmo.

> Brent
>
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