View Full Version : QUESTION: DOES THE CONSTITUTION GIVE/GRANT THE RIGHT TO USURP OR ADVOCATE AGAINST IT?
Straight Shooter
10-30-18, 18:00
From another thread...didnt want to derail it.
So- Does it? Is it someone's right to speak against the Constitution itself and advocate its demise, when it is THE very document we as a nation was created, and all laws are derived from?
My opinion is NO, it does not. How can we/it exist if it does?
Anxious to hear other thoughts & opinions on this.
Free speech, you’re doing it wrong.
Sent from my iPhone using Tapatalk
Remember, treason is the only crime that is listed in the US Constitution. Think about why that is the only crime the Founding Fathers pool it in there..... could it be the most egregious crime? Yes, indeed.
The 1st Amendment allows one to advocate against it, and the Original Constitution specifies 2 methods by which it can be changed.
LMT Shooter
10-30-18, 19:56
I don't believe that such a right is written of in the Constitution or the Bill of Rights.
However, the Declaration of Independence states, ".....that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it,....." How does one do this without usurping or advocating against the government, which was created by the Constitution?
The Declaration of Independence preceded the Constitution, and clearly there would be no Constitution if it weren't for the Declaration of Independence, and therein lies the rub. Our God-given rights are not limited to those specified in the Constitution, as clearly stated in the Tenth Amendment. To me, the Declaration of Independence is the foundation for our Nation. The Constitution is the foundation for our current government, and keep in mind there was a prior government ruling our Nation under the Articles of Confederation. That government wasn't doing what folks wanted it to do, so they abolished it. My allegiance to my country is unshakeable, but my allegiance to my government is dependent upon it securing my God-given rights & deriving its just powers from the consent of the governed, as stated in the Declaration of Independence.
That said, treason is a crime against ones own government. Getting away with it requires success, or else you hang.
LMT Shooter
10-30-18, 19:58
The 1st Amendment allows one to advocate against it, and the Original Constitution specifies 2 methods by which it can be changed.
Are you referring to, "petition the government for a redress of grievances?"
Are you referring to, "petition the government for a redress of grievances?"
No I am referring to:
...abridging the freedom of speech...
and
Article V
LMT Shooter
10-30-18, 20:16
No I am referring to:
...abridging the freedom of speech...
and
Article V
Understood, I thought Straight Shooter was referring to things that rise above that which are resolved via free speech and amendments when he said "usurp or advocate against," and I framed my posts from that perspective.
The 1st Amendment allows one to advocate against it, and the Original Constitution specifies 2 methods by which it can be changed.
^^^This
"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."
It doesn't say, "except for political speech that could be interpreted as critical of the Constitution."
Are you referring to, "petition the government for a redress of grievances?"
There are amendments and Constitutional Convention.
Im assuming thats what he is refereing to.
From another thread...didnt want to derail it.
So- Does it? Is it someone's right to speak against the Constitution itself and advocate its demise, when it is THE very document we as a nation was created, and all laws are derived from?
My opinion is NO, it does not. How can we/it exist if it does?
Anxious to hear other thoughts & opinions on this.
Our founding fathers put the means to legally do so in the constitution, so yes it does. Speaking about it, is not even a question. The first amendment doesnt have “except” anything in there.
However, attempting to overthrow the system and/or change it outside of the system is a no-go... and I would argue that has happened multiple times throughout history and there should have been consequences each time.
However, attempting to overthrow the system and/or change it outside of the system is a no-go... and I would argue that has happened multiple times throughout history and there should have been consequences each time.consequences.
Agreed.
HardToHandle
10-30-18, 20:36
I gather that Constitutional scholarship is none too strong in this thread. Here is the cliff notes:
A guy named George Washington established the primary precedents in this area. Google “Whiskey Rebellion”.
The default legal response was the Insurrection Act a few years later. That Act was last updated in GW Bush era. Google “Insurrection Act”.
50 years after the Insurrection Act, some jackholes decided secede. They got their @sses handled to them, their women raped, their cities burned and their slaves liberated. Google “American Civil War”.
^^^This
"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."
It doesn't say, "except for political speech that could be interpreted as critical of the Constitution."
Valid point. But does the 1st cover talk about overthrowing the government? Or would that fall under treason?
Valid point. But does the 1st cover talk about overthrowing the government?
SCOTUS said YES in Brandenburg, unless such speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Mere talk would not do that.
SCOTUS said YES in Brandenburg, unless such speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Mere talk would not do that.
Not true. Read the entire thing.
"except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
https://en.m.wikipedia.org/wiki/Brandenburg_v._Ohio
Not true. Read the entire thing.
"except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
https://en.m.wikipedia.org/wiki/Brandenburg_v._Ohio
Perhaps you should read the actual opinion and not refer to wikipedia.
Note also I specifically excluded the behavior you quoted.
SCOTUS said YES in Brandenburg, unless such speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Mere talk would not do that.
That's my understanding.
Perhaps you should read the actual opinion and not refer to wikipedia.
Note also I specifically excluded the behavior you quoted.
I have. Making it a little easier for those that are not as familiar with the law.
I have. Making it a little easier for those that are not as familiar with the law.
So when does the revolution start?
morbidbattlecry
10-30-18, 21:16
A definition of treason as according to the consitution has a very specific set of criteria.
"Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."
https://www.usconstitution.net/xconst_A3Sec3.html
What is being discussed here would not qualify as treason.
SCOTUS said YES in Brandenburg, unless such speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Mere talk would not do that.
In Brandenburg the SCOTUS put forth a two-pronged test for illegal threatening speech:
The Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In the case, a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that "it's possible that there might have to be some revengeance [sic] taken." The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
The speech is “directed to inciting or producing imminent lawless action,” AND
The speech is “likely to incite or produce such action.”
https://www.law.cornell.edu/wex/brandenburg_test
In terms of SteyrAUG's example in another thread:
just like you can talk about shooting "black people, white people, whatever people"
if you were to pull up to a group of (insert ethnicity.religion here) and said 'well looks like we get to shoot some (insert ethnicity/religion here)' you might very well be guilty of a crime:
21-3419. Criminal threat. (a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to terrorize another, or to cause the evacuation, lock down or disruption in regular, ongoing activities of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation, lock down or disruption in regular, ongoing activities;
21-5412. Assault; aggravated assault; assault of a law enforcement officer; aggravated assault of a law enforcement officer.
(a) Assault is knowingly placing another person in reasonable apprehension of immediate bodily harm;
Not necessary to make an overt act in all circumstances.
In Brandenburg the SCOTUS put forth a two-pronged test for illegal threatening speech:
The Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In the case, a KKK leader gave a speech at a rally to his fellow Klansmen, and after listing a number of derogatory racial slurs, he then said that "it's possible that there might have to be some revengeance [sic] taken." The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
The speech is “directed to inciting or producing imminent lawless action,” AND
The speech is “likely to incite or produce such action.”
https://www.law.cornell.edu/wex/brandenburg_test
In terms of SteyrAUG's example in another thread:
just like you can talk about shooting "black people, white people, whatever people"
if you were to pull up to a group of (insert ethnicity.religion here) and said 'well looks like we get to shoot some (insert ethnicity/religion here)' you might very well be guilty of a crime:
21-3419. Criminal threat. (a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to terrorize another, or to cause the evacuation, lock down or disruption in regular, ongoing activities of any building, place of assembly or facility of transportation, or in reckless disregard of the risk of causing such terror or evacuation, lock down or disruption in regular, ongoing activities;
21-5412. Assault; aggravated assault; assault of a law enforcement officer; aggravated assault of a law enforcement officer.
(a) Assault is knowingly placing another person in reasonable apprehension of immediate bodily harm;
Not necessary to make an overt act in all circumstances.
And yet it happens all the time. General threats, without the immediate means to carry them out, usually aren't enough. Even when the threats are personal against a specific individual, if you lack the means to make good on the threat it usually isn't enough.
It's the flipside of the deadly force threshold. Unless the person is armed, has some disparity of force or things like that it usually isn't enough. The good news is if the threat is genuine enough, the deadly force threshold is usually crossed as a result and you can check that person off of your "to do" list.
So people can walk around with their "kill whitey" signs all day long and I just have to deal with it, ignore it or avoid it. But...if they begin to use that sign in a threatening way that qualifies as a improvised weapon, that changes things a bit.
So people can walk around with their "kill whitey" signs all day long and I just have to deal with it, ignore it or avoid it. But...if they begin to use that sign in a threatening way that qualifies as a improvised weapon, that changes things a bit.
Exactly.
"What do we want? Dead cops! When do we want it? Now!", a common chant at BLM rallies, is protected free speech.
"Let's go kill those two cops over there right now, who is with me?", not protected.
What really chaps my ass in all of this is the Constitution never granted the power nor did any legislative branch or Constitutional act grant the power of Judiciall Review of the Constituionality of laws, to the SCOTUS.
All rulings and precedents regarding judicial review of constitutionality of laws from SCOTUS = unconstitutional.
Let that illegal usurpation of power sink in for a moment. "We The People" allow it to be, but it is wrong and unconstitutional nonetheless.
Reading the Federalist Papers, Washingtons Farewell address, The Declaration of Independence, etc- I cannot come to a reasonable conclusion that the Founders of this nation would have wanted the idea, speech or even action of overthrowing a tyrannical government to be illegal, unconstitutional or wrong. Nor can I come to that conclusion myself.
One only needs to understand the original ideals and intent of the founding of this nation and the codification thereof the Constitution to realize that not only is it Constitutional, legal, just and right for people to practice dissent, revolt against tyranny in all forms and question authority in general; but it is absolutely a prerequisite to a free and virtuous people to do so.
Harsh realities have been forgotten, or perhaps ignored for too long. By ignoring such truths and allowing such transgressions against the fabric of our founding, we have fallen into the abyss of denial; beholden to illegitimate "laws", false security/safety and utter complacency has spawned the reality we currently inhabit.
MountainRaven
10-31-18, 01:49
What really chaps my ass in all of this is the Constitution never granted the power nor did any legislative branch or Constitutional act grant the power of Judiciall Review of the Constituionality of laws, to the SCOTUS.
All rulings and precedents regarding judicial review of constitutionality of laws from SCOTUS = unconstitutional.
Let that illegal usurpation of power sink in for a moment. "We The People" allow it to be, but it is wrong and unconstitutional nonetheless.
First, a question: Then what is the purpose of the Supreme Court of the United States? If not them, then who is charged with verifying the legality of laws passed by the Congress and signed into law by the President? Nobody?
Second, a statement: Everyone in the United States government, which included those Founding Fathers still alive (and not in debtors' prison), interpreted the appropriate use of the Supreme Court to be to review the legality of the acts of Congress and the President within the bounds of the Constitution. This interpretation has been held for almost 230 years. It would absolutely require an amendment to the US Constitution to change it.
This is clearly allowed in the original intent of the Supreme Court, to protect the people from overly restrictive laws.
If all the judges were originalists there would be no issue. Even if occasionally the outcome was not what we would agree with.
But it's not, there are many rulings that the original intent of the Constitution is not followed. And for some judges the idea that the Constitution doesn't matter, is antiquated, etc. drives their behavior.
So when does the revolution start?
I see what you did there......lol
I think we are saying the same thing.
Straight Shooter
10-31-18, 07:24
Understood, I thought Straight Shooter was referring to things that rise above that which are resolved via free speech and amendments when he said "usurp or advocate against," and I framed my posts from that perspective.
There are amendments and Constitutional Convention.
Im assuming thats what he is refereing to.
Our founding fathers put the means to legally do so in the constitution, so yes it does. Speaking about it, is not even a question. The first amendment doesnt have “except” anything in there.
However, attempting to overthrow the system and/or change it outside of the system is a no-go... and I would argue that has happened multiple times throughout history and there should have been consequences each time.
LMT Shooter- that is exactly what Im talking about. NOT talking about the means the Constitution itself provides for change. And then, even THAT is only to alter or modify a small part of it, not the whole damn thing.
I guess another way of asking would be: Can we get totally rid of the Constitution 100%..under the the Constitution? I simply do not believe so, at all.
Because for many years, we've heard some politicians on the left talk about "going outside the Constitution"..and of late how "outdated" & "old" it is.
Can no one be arrested/tried for treason anymore?
LMT Shooter
10-31-18, 08:23
Can we get totally rid of the Constitution 100%..under the the Constitution?
Can no one be arrested/tried for treason anymore?
#1- That sounds like an oxymoron. I say no, there is not a provision for getting rid of the Constitution in the Constitution.
#2- Hell, a great number of treasonous bastards keep getting re-elected.
As I said in my first post, the Declaration of Independence founded our Nation, and it affirms the right of the people to repeat the act of abolishing ones own government. Our forefathers did this twice, once with the British, and then again with the Articles of Confederation. The Constitution only founded our current system of government.
First, a question: Then what is the purpose of the Supreme Court of the United States? If not them, then who is charged with verifying the legality of laws passed by the Congress and signed into law by the President? Nobody?
Second, a statement: Everyone in the United States government, which included those Founding Fathers still alive (and not in debtors' prison), interpreted the appropriate use of the Supreme Court to be to review the legality of the acts of Congress and the President within the bounds of the Constitution. This interpretation has been held for almost 230 years. It would absolutely require an amendment to the US Constitution to change it.
Article III of the Constitution provides for the establishment of a Judicial branch of the federal government and Section 2 of that article enumerates the powers of the Supreme Court. Here is Section 2, in part:
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.
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.
"Well," you might say, "someone has to review laws for constitutionality. Why not the Supreme Court?"
First and foremost, it is not a power granted to the Supreme Court by the Constitution. When the Supreme Court exercises Judicial Review, it is acting unconstitutionally.
It is a huge conflict of interest. The Federal Government is judging the constitutionality of its own laws. It is a classic case of "the fox guarding the hen house."
The Constitution's "checks and balances" were designed to prevent any one branch of government (legislative, executive or judicial) from becoming too powerful and running roughshod over the other branches.
There is no such system of checks and balances to protect the states and the people when multiple branches of government, acting in concert, erode and destroy the rights and powers of the states and the people. THIS is exactly why we are at the juncture we find ourselves at currently.
Even if the Supreme Court could be counted on to keep the Executive and Legislative branches from violating the Constitution, who is watching the Supreme Court and will prevent the Judicial branch from acting unconstitutionally?
Unless you believe that the Supreme Court is infallible (and, demonstrably, it is absolutely not), then allowing the Supreme Court to be the sole arbiter of Constitutionality issues is obviously extremely flawed and unconstitutional.
Justices are appointed, not elected and may only be removed for bad behavior (which has happened in the distant past but these days, appointment to the Supreme Court is like a lifetime appointment SCOTUS justices are Teflon wrapped unobtanium protected by 10 layers of kryptonite). If the court upholds unconstitutional laws, there is no recourse available. We the People cannot simply vote them out to correct the situation.
Thomas Jefferson wrote, in 1823:
"At the establishment of our constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account."
It is the Constitution, not the Supreme Court, which is the Supreme Law of the Land. I wish folks would get that through their thick skulls and adhere to it across the board, not just when it suits their bias/opionions!
Even the Supreme Court should be accountable for overstepping Constitutional limits on federal power.
Judicial review turns the Constitution on its head. The Judiciary was created as the weakest branch, controlled by both the Legislative and Executive branches. Judicial review makes the Judiciary master of both the Legislature and Executive, telling them both what that may and may not do. That was never the intent.
There are only nine Justices and, under the current system, it takes only a simple majority — five votes — to determine a case. Given the supermajority requirement mandated by the Constitution to pass Constitutional amendments, a simple majority requirement by the Supreme Court, to uphold a suspect law, defies the spirit of the Constitution.
If 44.44% of the Supreme Court justices (four of nine) think a law is not constitutional, we should err on the side of caution and declare it unconstitutional.
The people and the states have little control over the makeup of the Supreme Court.
Officials in all three branches of government take an oath of office to uphold the Constitution. The Supreme Court Justices, Senators, Congressmen, and Vice President, and other federal officers, all take an oath of office to "support and defend" the Constitution. (The president's oath of office in Article II, Section 1, requires that he "preserve, protect, and defend the Constitution of the United States.") Why is the Supreme Court's version of "constitutional" considered more authoritative? Is the Judicial branch more to be trusted than the Executive or Legislative branches?
Prudence dictates that we be wary of all three branches (and especially wary of the one unaccountable branch!!!).
Given that it was the people and the states which established the Constitution, it is the states who should settle issues of constitutionality. The Constitution is a set of rules made by the states as to how the government should act.
The "judicial review" paradigm allows the government to make its own rules with no say by the original rule-makers — the states/the people.
The Constitution was created by the states and any question as to the meaning of the Constitution is rightly settled by the states. When you make rules for your children, do you permit your children to interpret your rules in any manner they like? Of course not. Yet, the states are permitting the federal government — the "child" of the states — to do exactly that.
Since the power of Judicial Review is not expressly granted to the Supreme Court by the Constitution, this power, per the tenth amendment, is "reserved to the States respectively, or to the people."
That power was absolutely usurped by the Judicial branch.
The Constitution is very clear; any power to review laws to see if they are constitutional belongs to the states and to the people. Therefore, the Supreme Court is itself acting unconstitutionally when it exercises the power of 'Judicial Review.' It would require a Constitutional Amendment specifically granting this power to the court in order for 'Judicial Review' to be constitutional!
LMT Shooter
10-31-18, 11:04
"If 44.44% of the Supreme Court justices (four of nine) think a law is not constitutional, we should err on the side of caution and declare it unconstitutional."
I would go even further & require a unanimous decision. If even one SCOTUS judge thinks a law is unconstitutional, to make sure our government has strictly adhered to the Constitution, the law in question is unconstitutional.
"If 44.44% of the Supreme Court justices (four of nine) think a law is not constitutional, we should err on the side of caution and declare it unconstitutional."
I would go even further & require a unanimous decision. If even one SCOTUS judge thinks a law is unconstitutional, to make sure our government has strictly adhered to the Constitution, the law in question is unconstitutional.
I absolutely agree.
First, a question: Then what is the purpose of the Supreme Court of the United States? If not them, then who is charged with verifying the legality of laws passed by the Congress and signed into law by the President? Nobody?
NOBODY is the correct answer. The power of Judicial Review is not mentioned in the Constitution. Thus it would fall to the 10th Amendment as a Power reserved to the States and the People.
Second, a statement: Everyone in the United States government, which included those Founding Fathers still alive (and not in debtors' prison), interpreted the appropriate use of the Supreme Court to be to review the legality of the acts of Congress and the President within the bounds of the Constitution. This interpretation has been held for almost 230 years. It would absolutely require an amendment to the US Constitution to change it.
This is incorrect. The concept of Judicial Review was not part of the Founding Fathers plan. It did not exist when the US was created. SCOTUS gave the power to itself, in 1803 in Marbury vs. Madison. That is 215 years if you are counting. It has been generally accepted since.
It would absolutely require an amendment to the US Constitution to change it.
Since it is not Constitutionally granted power, the Constitution does not need to be changed to remove it. One method where it could be rescinded "absolutely" without Amendment would be if SCOTUS itself overturned Marbury vs. Madison. Another would be through legislation. Yet another would be for Exec & Legis to ignore it.
NOBODY is the correct answer. The power of Judicial Review is not mentioned.
This is incorrect. The concept of Judicial Review was not part of the Founding Fathers plan. It did not exist when the US was created. SCOTUS gave the power to itself, in 1803 in Marbury vs. Madison. That is 215 years if you are counting. It has been generally accepted since.
Since it is not Constitutionally granted power, the Constitution does not need to be changed to remove it. One method where it could be rescinded "absolutely" without Amendment would be if SCOTUS itself overturned Marbury vs. Madison. Another would be through legislation. Yet another would be for Exec & Legis to ignore it.
"Nobody" is NOT the correct answer. It is reserved for the States and the people- per the Tenth Amendment of the Constitution.
"Nobody" is NOT the correct answer. It is reserved for the States and the people- per the Tenth Amendment of the Constitution.
Nobody IS the correct answer. There was no 10th Amendment when the Constitution was created. Thus NOBODY. I clearly covered that, why the PHUCK did you delete my last sentence in that paragraph?:
NOBODY is the correct answer. The power of Judicial Review is not mentioned in the Constitution. Thus it would fall to the 10th Amendment as a Power reserved to the States and the People.
Nobody IS the correct answer. There was no 10th Amendment when the Constitution was created. Thus NOBODY. I clearly covered that, why the PHUCK did you delete my last sentence in that paragraph?:
NOBODY is the correct answer. The power of Judicial Review is not mentioned in the Constitution. Thus it would fall to the 10th Amendment as a Power reserved to the States and the People.
I didn't delete it buddy, settle down. When I replied/quoted you that was the entire text. It appears you edited your post. Without that last sentence it is obvious why I replied the way I did, eh? Relax.
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