"Wide Eyed in Wonder" <kands00@hotmail.com> wrote:
:|In a brand new article, Supreme Court justice Breyer admitted that he
:|often makes decisions based upon the purpose and consequences and NOT
:|based upon what the Constitution says. He admits this puts him at odds
:|with some of the other justices on the bench...
:|
:|http://news.yahoo.com/s/ap/20060208/ap_on_go_su_co/breyer_chicago
:|
:|Specifically, he says the Ten Commandments cases were based upon his
:|subjective decision instead of what the Constitution said.
:|
:|Very interesting.
More interesting is your spin or implication cast on him and his words
He said this
CHICAGO - Supreme Court Justice
Stephen Breyer says he frequently makes decisions about a law's
constitutionality by considering its purposes and consequences, which puts
him at odds with fellow justices who try to adhere strictly to the language
of the Constitution.
and this
Breyer talked about other differences in how the justices make decisions,
saying they can consult six basic criteria in assessing a law: the language
of the law, the history of the text, tradition behind the text, precedents,
the purpose of the law and the consequences of letting the law stand or
striking it down.
"I tend to emphasize purpose and consequences," said Breyer, who was
nominated for the high court by President Clinton. "Others emphasize
language, a more literal reading of the text, history and tradition —
believing that those help you reach a more objective answer."
As examples of his own stress on consequences, Breyer pointed to two
decisions last year involving the Ten Commandments.
He decided a display of the commandments in front of two Kentucky
courthouses was unconstitutional because he concluded their display would
cause religious conflict. But he found that removing a similar display that
had been in front of the Texas State Capital for years would not, so he
ruled it constitutional.
******************************************************************************
For your further enlightenment
Constitutional Interpretation:
My claim is very simple
"Legislative intent, when it can be determined . . ."Nothing complicated
about that.
Here I can even give you the headers of the whole list:
G. SOURCES FOR CONSTITUTIONAL ADJUDICATION:
Precedents
Intent of the framers of the Constitution.
The common law and the lessons of history
Interpretations given by nonjudicial agencies
Interoretations of state and foreign constitutions
Natural law and natrual rights doctrines
The shared eithical values of a culture
The broad philosophies of Supreme Court Justices
Studies in economics, sociology, and other disciplines
Concern for the impact of the decision and the rule upon society
Constitutional language and its arrangement
SOURCE: Modern Constitutional Law, The States and the Federal Government,
Vol II, Chester J. Antieau, Lawyers Co-op Publishing (1969) pp 706-747
===========================================
AND IN ESTABLISHMENT CLAUSE ADJUDICATION IN PARTICULAR
************************************
RULES:
************************************
ESTABLISHMENT CLAUSE:
The Establishment Clause as defined by the USSC in Everson v. Bd of Ed,
1947
The "establishment of religion" clause of the First Amendment means at
least this:
(1) neither a state nor the Federal Government can set up a church.
(2) Neither can pass laws which aid one religion,
(2a) aid all religions,
(2b) or prefer one religion over another.
(3) Neither can force
(3a) nor influence a person to go to
(3b) or to remain away from church against his will
(3c) or force him to profess a belief
(3d) or disbelief in any religion.
(4) No person can be punished for entertaining [p*16]
(4a) or professing religious beliefs
(4b) or disbeliefs,
(4c) for church attendance
(4d) or non-attendance.
(5) No tax in any amount,
(5a) large or small, can be levied to support any religious activities
(5b) or institutions, whatever they may be called,
(5c) or whatever form they may adopt to teach
(5d) or practice religion.
(6) Neither a state
(6a) nor the Federal Government can, openly or secretly, participate in the
(6b) affairs of any religious organizations
(6c) or groups,
(6d) and vice versa.
************************************
EVEN IF YOU DO AWAY WITH #5 WHICH is what Rehnquist
has been working to accomplish for 30 years, you still all the other
elements which would be and are still good law.
************************************
TESTS:
************************************
Over many years and many cases mainly involving religion in public schools,
the Supreme Court has developed three "tests" to be applied to religious
practices for determining their constitutionality under the Establishment
Clause.
************************************
The LEMON TEST
Based on the 1971 case of Lemon v. Kurtzman, 403 U.S. 602, 612-13, the
Court will rule a practice unconstitutional if:
1.It lacks any secular purpose. That is, if the practice lacks any
non-religious purpose.
2.The practice either promotes or inhibits religion.
3.Or the practice excessively (in the Court's opinion) involves government
with a religion.
************************************
The HISTORICAL TEST
Based on Marsh v. Chambers, 463 U.S. 783 (1983). Requires a unambiguous and
unbroken history of more than 200 years. BTW, the history that was employed
by the Court in Marsh v. Chambers was flawed. See:
Chaplains and Congress
http://members.tripod.com/~candst/chaptest.htm
Chief Justice Burger, I Would Like You To Meet Mr. Madison
http://members.tripod.com/~candst/meet.htm
Discrepancies
http://members.tripod.com/~candst/discrep.htm
The Political Move That Backfired
http://members.tripod.com/~candst/backfire.htm
************************************
THE ENDORSEMENT TEST
Drawing from the 1989 case of Allegheny County v. ACLU, 492 U.S. 573, the
practice is examined to see if it unconstitutionally endorses religion by
conveying "a message that religion is 'favored,' 'preferred,' or 'promoted'
over other beliefs."
************************************
THE COERCION TEST
Based on the 1992 case of Lee v. Weisman, 505 U.S. 577 the religious
practice is examined to see to what extent, if any, pressure is applied to
force or coerce individuals to participate. The Court has defined that:
"Unconstitutional coercion occurs when:
(1) the government directs
(2) a formal religious exercise
(3) in such a way as to oblige the participation of objectors."
************************************
What the founders intended, if it can truly be determined can be important.
However, the following also has to be considered:
§15:41 MODERN CONSTITUTIONAL LAW
Neither the Supreme Court nor legal scholars should be very
dogmatic in asserting the intent of the Framers on any aspect
of constitutional law. For one reason, the ratifying conventions
are reported in such meagerness as to throw very little light on
the intentions of these persons who were primarily responsible
for the adoption of the provisions. A long study into the inten-
tion of the persons responsible for the First Amendment should
encourage caution and humility in asserting what they meant in
anything other than the broadest perspectives.(13) Again, after
monumental research into the intent of those responsible for the
Fourteenth Amendment, as requested by the Supreme Court, the
court could but observe: "Although these sources cast some light,
it is not enough to resolve the problem with which we are faced.
At best, they are inconclusive . . . ."(14) So, indeed, will be most
attempts to psychoanalyze "the Framers." The Constitution will
always operate on many matters on which the Founding Fathers
could have had no intent.
(13) Antieau, Downey and Roberts, Freedom from Federal Estab-
lishment (Chicago, 1965).
(14) Brown v Board of Education United States (1925) 276 US 394,
(1954) 347 US 483, 98 L Ed 873, 878, 74 S Ct 686, 38 AIR2d 1180,
SUPP op 349 US 294, 99 L Ed 1083, 75 S Ct 753.
MODERN CONSTITUTIONAL LAW, The States and the Federal Government,
Volume II, by Chester J. Antieau, Lawyers Cooperative Publishing,
Rochester, New York (1969) pp 716
AND
==========================================================
RELIGION
An Overview
Madison's original proposal for a bill of rights provision concerning
religion read: ''The civil rights of none shall be abridged on account of
religious belief or worship, nor shall any national religion be
established, nor shall the full and equal rights of conscience be in any
manner, or on any pretence, infringed.'' The language was altered
in the House to read: ''Congress shall make no law establishing religion,
or to prevent the free exercise thereof, or to infringe the rights of
conscience.'' In the Senate, the section adopted read: ''Congress shall
make no law establishing articles of faith, or a mode of worship, or
prohibiting the free exercise of religion, . . .'' It was in the conference
committee of the two bodies, chaired by Madison, that the present language
was written with its some what more indefinite ''respecting '' phraseology.
Debate in Congress lends little assistance in interpreting the religion
clauses; Madison's position, as well as that of Jefferson who influenced
him, is fairly clear, but the intent, insofar as there was one, of the
others in Congress who voted for the language and those in the States who
voted to ratify is subject to speculation.
http://caselaw.findlaw.com/data/constitution/amendment01/01.html
===================================================
***************************************************************
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the US and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
USAF LT. COL (Ret) Buffman (Glen P. Goffin) wrote
"You pilot always into an unknown future;
facts are your only clue. Get the facts!"
That philosophy 'snipit' helped to get me, and my crew, through a good
many combat missions and far too many scary, inflight, emergencies.
It has also played a significant role in helping me to expose the
plethora of radical Christian propaganda and lies that we find at
almost every media turn.
*****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
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