Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?'

[goldcatt]

MY answer is exclusively "(b)." While it is reasonable to expect some other people to file suit (if not the Administration itself), my position is that it is irrelevant. There is absolutely no need to go ASKING the Judicial Branch for their input. The President (like you are or I am) is perfectly capable of deciding all on his own that the hypothetical law is an abomination and without any valid basis in the Constitution.

But let's go that extra step: What if the Judicial Branch accepted the case and ultimately declared it Constitutional?

Would that suddenly make that abomination of an Unconstitutional law anything other than an abomination and UnConstitutional?

Would your opinion change if the Court then presumed to order the President to "enforce" the law?

Mine would not.

I believe that's too simple.
In the Indian relocation case the Supreme Court decided with the Cherokee tribe that the forced relocation was against the law. Pres Jackson refused to enforce the court's decision and ordered them relocated anyway. Clearly he thought the law was on his side, or he could disregard the court's opinion (his reported statement was, now let them enforce it.).
In the AL Ten Commandments case the governor finally gave in to the courts, which ordered him to remove the offending material. But he thought he had a duty to uphold the law and was acting within Constitutional boundaries.
The short of it is that the executive has discretion and power and engages in constitutional interpretation.

I don't see why you think it's "too simple." The only difference between what Jackson did and my silly hypothetical is that Jackson improperly disregarded a SCOTUS ruling whereas the President in my hypo would be disregarding an UnConstitutional Congressionally enacted Law. In both scenarios, the President is demonstrating that the Executive has the ability to engage in Constitutional analysis.

Jackson was right in one way, and very wrong in another way, probably for the wrong reasons, too.

But that doesn't alter the fact that the Executive Branch most certainly can and does engage in Constitutional analysis. And it should. and if the Court CLEARLY tramples the Constitution in a ruling, thereby purporting to order the President to violate the Constitution, then in order to honor the Oath of Office, I maintain a President is duty bound to disregard the SCOTUS "command."

I can't believe I'm saying this...but if you flesh out what he's saying the Rabbi has a point.

If the Executive has the power to disregard one Judicial ruling or Legislative Act, what is stopping it from disregarding all Judicial rulings and Legislative Acts? The opinion of the Executive alone. A power is a power, it's a tool that can be used properly....or abused.

 

[goldcatt]

"The problem with B is it bypasses the Courts as the final arbiter of constitutional interpretation as well as the dispensation of justice by a (nominally and ideally) non-political entity."

Bypassing the Court is fine by me. In fact, that is one of the main virtues of "(b)." In a scenario like the one I posited, there is absolutely no need whatsoever to even GO to Court or seek Judicial input. To wait for such "input" is also wrong since it denies the IMMEDIATE rectification of something we already know is Constitutionally wrong. Justice delayed ---

And when the Constitution is being egregiously violated, the dispensation of Justice is what's important, not which Constitutional Branch that does that dispensing.

You seem to express an almost child-like need to have nanny Court insert and inject itself into all such matters. Must be a lib thang.

Completely disagree. On all counts.

Of course there is a need to seek Judicial imput. What you're proposing gives the Executive unlimited unilateral authority to ignore any and all laws it wants to on the basis of any constitutional interpretation it chooses to apply. That would give the Executive unlimited power over both the Legislative and Judicial, presumably enforced by the military and police powers which are under its purview when Congress and the Judiciary object, which is NOT what the Framers had in mind when crafting a separated government. If they wanted a military dictator or a ruling monarch, that's what we would have.

But it would be your analysis that would lead to despotism, not mine.

I WANT my Executive Branch -- most definitely including the President himself or herself -- to be BOUND by the Constitution and faithfully and zealously subservient to it. The expression that "we are a nation of laws, not of men," is rooted in that willingness to say, "I want to do X, but I am forbidden." Or, "You claim to command me to do X, but the Constitution requires that I say 'No!'"

It is not an accident that led us to be warned about the dangers of the despotic branch. And that Branch was not the Legislative Branch nor was it the Executive Branch.

And yet which branch controls both the military and law enforcement, the tools to enforce the despot's whims?

 

[hortysir]

Here we go. We should have seen this coming.

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”

For Breyer, that right is not a foregone conclusion.

... he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?' - George Stephanopoulos' Bottom Line

Burning the flag? Free speech.
Burning the Koran? National security concern.

Similar comment was made in the closing article of Time Mag, this week

We have argued the right of Nazi's to march in Skokie, IL, of journalists to publish government secrets, of racists to burn crosses. We weigh when speech does not deserve protection, like shouting "Fire!" in a crowded theater. What about shouting "Fire!" in a crowded WORLD?

 

[Quantum Windbag]

What is it about endangering the troops and America's unsung heroes who do the dirty work overseas that people like stinky-chanel do not get?

Now I do not agree with all the arguments on all either side, but the Military Command has said the Koran Burning was a security issue.

What does burning an American Flag have to do with anything?

Why do people like Chanel disgrace the flag by hiding behind it?

Not really sure what she doesn't get. Maybe it is the same thing Breyer himself doesn't get, since he clarified his remarks in a later interview to solidly back the right of the pastor to burn the Koran.

Video - Breaking News Videos from CNN.com

I knew if I held back on this that sooner or later someone would give me an opportunity to zing them. That it was the boards resident troll only makes this more enjoyable.

 

[Liability]

Completely disagree. On all counts.

Of course there is a need to seek Judicial imput. What you're proposing gives the Executive unlimited unilateral authority to ignore any and all laws it wants to on the basis of any constitutional interpretation it chooses to apply. That would give the Executive unlimited power over both the Legislative and Judicial, presumably enforced by the military and police powers which are under its purview when Congress and the Judiciary object, which is NOT what the Framers had in mind when crafting a separated government. If they wanted a military dictator or a ruling monarch, that's what we would have.

But it would be your analysis that would lead to despotism, not mine.

I WANT my Executive Branch -- most definitely including the President himself or herself -- to be BOUND by the Constitution and faithfully and zealously subservient to it. The expression that "we are a nation of laws, not of men," is rooted in that willingness to say, "I want to do X, but I am forbidden." Or, "You claim to command me to do X, but the Constitution requires that I say 'No!'"

It is not an accident that led us to be warned about the dangers of the despotic branch. And that Branch was not the Legislative Branch nor was it the Executive Branch.

And yet which branch controls both the military and law enforcement, the tools to enforce the despot's whims?

but the point is that the President (like Jackson) may choose NOT to enforce the Despotic Branch's whims.

And the President himself can be impeached.

 

[Quantum Windbag]

If one draws a line arbitrarily to protect one's political agenda preference, it is not "meaningless," it's just arbitrary and it is probable that it will be found to be invalid in terms of logic if one bothers to analyze it logically.

Marbury v. Madison provides for a grant of power to the Judicial branch FROM the Judicial branch. That grant of power is not found in the text of the Constitution. But, as I suggested before, it is a reasonably implied power from the grants of power which were given to the Judicial branch (and based on the common law of the day).

I did not say (as you claim) that the legislature is expected to set the boundaries of its own restrictions? The Constitution already does. What's needed is fidelity to the Constitution. Why the hell shouldn't Congress determine for itself, at the very outset of some legislative proposal, whether or not they have the Constitutional authority to do what they are contemplating? Why would the President who also takes an oath to uphold the Constitution decide for himself whether or not an Act transgresses the bounds of the Constitution? And if he vetoes it on that basis, why should he not refuse to enforce the unConstitutional Law (assuming his veto gets overridden) without having to await permission from the Judicial branch? The courts may very well have an implied power of judicial review, but who the hell says that it is theirs and theirs alone?

But when you say the power of interpretation is not limited to the Courts, that's exactly what you appear to be saying. That Congress, or the Executive, have or should have the right to assign their own meaning to the words independent of the Courts - therefore they are defining the bounds of their own limitations when it comes to the restrictive Amendments. And of their own powers when it comes to the original Articles, for that matter. That's a recipe for totalitarian disaster, and not one the Framers were likely to have desired.

I agree that Congress should examine legislation to determine whether, in their opinion, it is Constitutional prior to passing it. The Executive should do so prior to signing it. And they do, as the voluntary statements in some legislation shows. But they do so according to the definitions as set forth by the Courts. Somebody has to have the final say. In order to be an effective balance that somebody cannot be an entity directly involved in drafting and enacting the law. The Courts aren't perfect, but they're as close to a neutral third party as you're going to get in our system.

Going back to the OP, I find Breyer's statement that it's a rickety system but one that's worked intriguing - and true.

The Courts have no general power of "interpretation." Some interpretation may be required if some provisions of the Constitution seem to result in ambiguity, for example. And to the extent (which I conceded already) that it is a valid implied power for the Court to engage in some judicial review, then yes, the Courts will have to engage in some interpretation.

But you gloss over my point.

So, once more with feeling.

If Congress in its infinite capacity to be moronic decides that a "law" is urgently required to institute racial segregation into the armed services, they might (despite their blindness to what the Constitution demands) theoretically pass such an abomination. The President presumably would veto it. The Congress (endlessly moronic) overrides the veto. The President has a duty to uphold the Constitution. So he does what?

(a) interpret the Constitution as requiring him, under his Oath, to enforce that law?

(b) interpret the Constitution as requiring him to disregard that law?

(c) grudgingly enforce that abomination of a "law" while filing a suit in the judicial branch to get the fucking "law" judicially "reviewed" and declared "unConstitutional" -- and then awaiting the eventual SCOTUS determination (denying, on the basis of race, equal protection of the law in the intervening time to all servicemen )?

My answer is: "(b)." I see no other rational interpretation of the Constitution and certainly none that I would defend.

I agree. If I hadn't already pos repped you for something earlier this would definitely be repped.

 

[goldcatt]

But it would be your analysis that would lead to despotism, not mine.

I WANT my Executive Branch -- most definitely including the President himself or herself -- to be BOUND by the Constitution and faithfully and zealously subservient to it. The expression that "we are a nation of laws, not of men," is rooted in that willingness to say, "I want to do X, but I am forbidden." Or, "You claim to command me to do X, but the Constitution requires that I say 'No!'"

It is not an accident that led us to be warned about the dangers of the despotic branch. And that Branch was not the Legislative Branch nor was it the Executive Branch.

And yet which branch controls both the military and law enforcement, the tools to enforce the despot's whims?

but the point is that the President (like Jackson) may choose NOT to enforce the Despotic Branch's whims.

And the President himself can be impeached.

Jackson wasn't impeached for the Trail of Tears, but thank you for illustrating the political poison that results from an Executive's failure to play by the rules.

Let me see if I have this straight. What you favor is a system wherein the President, one man alone, can determine on his own without input from the Courts that an Act of Congress is unconstitutional and refuse to follow or enforce it. That he should also have the power, alone, to declare a Judicial decision unconstitutional and refuse to follow or enforce it. Keeping in mind that the President, alone, has control of both the military and law enforcement to back up whatever decisions he makes should he so desire. And that we would be wise to allow this and trust the President's judgment to use this power responsibly. AND that failure to allow this power is despotic.

What do we call a political system where one man has the power to ignore the law and back up his decisions with the use of government force, again?

 

[The Rabbi]

And yet which branch controls both the military and law enforcement, the tools to enforce the despot's whims?

but the point is that the President (like Jackson) may choose NOT to enforce the Despotic Branch's whims.

And the President himself can be impeached.

Jackson wasn't impeached for the Trail of Tears, but thank you for illustrating the political poison that results from an Executive's failure to play by the rules.

Let me see if I have this straight. What you favor is a system wherein the President, one man alone, can determine on his own without input from the Courts that an Act of Congress is unconstitutional and refuse to follow or enforce it. That he should also have the power, alone, to declare a Judicial decision unconstitutional and refuse to follow or enforce it. Keeping in mind that the President, alone, has control of both the military and law enforcement to back up whatever decisions he makes should he so desire. And that we would be wise to allow this and trust the President's judgment to use this power responsibly. AND that failure to allow this power is despotic.

What do we call a political system where one man has the power to ignore the law and back up his decisions with the use of government force, again?

I dont think that's what he said.
And the president has the responsibility to uphold the Constitution, therefore he has the ability and the responsibility to make determination as to what it means.

 

[Liability]

And yet which branch controls both the military and law enforcement, the tools to enforce the despot's whims?

but the point is that the President (like Jackson) may choose NOT to enforce the Despotic Branch's whims.

And the President himself can be impeached.

Jackson wasn't impeached for the Trail of Tears, but thank you for illustrating the political poison that results from an Executive's failure to play by the rules.

Let me see if I have this straight. What you favor is a system wherein the President, one man alone, can determine on his own without input from the Courts that an Act of Congress is unconstitutional and refuse to follow or enforce it. That he should also have the power, alone, to declare a Judicial decision unconstitutional and refuse to follow or enforce it. Keeping in mind that the President, alone, has control of both the military and law enforcement to back up whatever decisions he makes should he so desire. And that we would be wise to allow this and trust the President's judgment to use this power responsibly. AND that failure to allow this power is despotic.

What do we call a political system where one man has the power to ignore the law and back up his decisions with the use of government force, again?

"What do we call a political system where one man has the power to ignore the law and back up his decisions with the use of government force, again?"

Irrelevant to the discussion. What I posited was the situation where the one person has the power to uphold the law and to back up that decision with the force and dignity of his Office and oath.

You seem to think that if nine old men (and women) in black dresses, by a bare majority, do something despotic in violation of the Constitution, that makes it somehow a superior form of despotism. And if the SCOTUS folks divide 5-4, that ONE vote margin is very similar to the one determination of the President.

And the Rabbi is right. I did not suggest that Jackson had gotten impeached. I noted that there is a check on his actions -- even when he's absolutely right. Presidents can be impeached. For a piss-poor judicial ruling, judges really cannot be impeached. So, stop supporting the freaking despots.

 

[Liability]

If someone lights up a stack of Qur'ans in a crowded theater, and then yells "FIRE!" is he fully protected by the freedom of speech provision of the First Amendment?

 

[goldcatt]

but the point is that the President (like Jackson) may choose NOT to enforce the Despotic Branch's whims.

And the President himself can be impeached.

Jackson wasn't impeached for the Trail of Tears, but thank you for illustrating the political poison that results from an Executive's failure to play by the rules.

Let me see if I have this straight. What you favor is a system wherein the President, one man alone, can determine on his own without input from the Courts that an Act of Congress is unconstitutional and refuse to follow or enforce it. That he should also have the power, alone, to declare a Judicial decision unconstitutional and refuse to follow or enforce it. Keeping in mind that the President, alone, has control of both the military and law enforcement to back up whatever decisions he makes should he so desire. And that we would be wise to allow this and trust the President's judgment to use this power responsibly. AND that failure to allow this power is despotic.

What do we call a political system where one man has the power to ignore the law and back up his decisions with the use of government force, again?

"What do we call a political system where one man has the power to ignore the law and back up his decisions with the use of government force, again?"

Irrelevant to the discussion. What I posited was the situation where the one person has the power to uphold the law and to back up that decision with the force and dignity of his Office and oath.

You seem to think that if nine old men (and women) in black dresses, by a bare majority, do something despotic in violation of the Constitution, that makes it somehow a superior form of despotism. And if the SCOTUS folks divide 5-4, that ONE vote margin is very similar to the one determination of the President.

And the Rabbi is right. I did not suggest that Jackson had gotten impeached. I noted that there is a check on his actions -- even when he's absolutely right. Presidents can be impeached. For a piss-poor judicial ruling, judges really cannot be impeached. So, stop supporting the freaking despots.

Of course Judges can be impeached as per Article 2, Section 4. ALL officers of the United States are subject to impeachment. It's rare, but it happens. Kinda like Presidential impeachment.

Too long to post, but basic info on judical impeachment from the ABA:

Impeachment Resources: A Look at the Impeachment Process (Resources, ABA Division for Public Education)

I'm interested in hearing more about pointing out the potentially despotic nature of the Presidency if unchecked is irrelevant to a discussion on expansion of Executive power to the point of ignoring law at his pleasure, trusting in his sense of honor (heh) and responsibility to a formulaic oath. Can you flesh that out a little for me please, I'm not following. At all.

And apparently you missed my previous post where I granted the point that, IF the extreme situation you put forward came to pass and the Courts through every level refused to honor a clear bright line rule, then the Executive would have a reason to force the constitutional crisis as the system would be irretreivably broken.

However, to do so at the outset merely at his whim is poisoning the well and inviting tyranny at the hands of one man with ultimate power to ignore the law as he sees fit and enforce his individual, unchecked will on all of us. Foolish, dangerous, and quite frankly dumb.

It is entertaining to see you arguing in support of the responsibility, honor and integrity of our elected politicians though. At least you're having fun.

 

[goldcatt]

If someone lights up a stack of Qur'ans in a crowded theater, and then yells "FIRE!" is he fully protected by the freedom of speech provision of the First Amendment?

Only if he pulls the fire alarm on his way out.

 

[Liability]

If someone lights up a stack of Qur'ans in a crowded theater, and then yells "FIRE!" is he fully protected by the freedom of speech provision of the First Amendment?

Only if he pulls the fire alarm on his way out.

Ah but that's conduct and could cause a commotion so according to Justice Breyer, it might not be so clear cut that it qualifies as just "speech" ... So uhmmm ... Maybe we better start a national dialogue on this urgent matter! Let's call it a trial balloon. Justice Breyer will be proud!

 

[Procrustes Stretched]

What is it about endangering the troops and America's unsung heroes who do the dirty work overseas that people like stinky-chanel do not get?

Now I do not agree with all the arguments on all either side, but the Military Command has said the Koran Burning was a security issue.

What does burning an American Flag have to do with anything?

Why do people like Chanel disgrace the flag by hiding behind it?

Not really sure what she doesn't get. Maybe it is the same thing Breyer himself doesn't get, since he clarified his remarks in a later interview to solidly back the right of the pastor to burn the Koran.

Video - Breaking News Videos from CNN.com

I knew if I held back on this that sooner or later someone would give me an opportunity to zing them. That it was the boards resident troll only makes this more enjoyable.

Did Breyer ever say there was no right to burn the Koran?

What is it you do not get?

 

[goldcatt]

If someone lights up a stack of Qur'ans in a crowded theater, and then yells "FIRE!" is he fully protected by the freedom of speech provision of the First Amendment?

Only if he pulls the fire alarm on his way out.

Ah but that's conduct and could cause a commotion so according to Justice Breyer, it might not be so clear cut that it qualifies as just "speech" ... So uhmmm ... Maybe we better start a national dialogue on this urgent matter! Let's call it a trial balloon. Justice Breyer will be proud!

You planning on holding a Qu'ranic weenie roast at the Cineplex this weekend or something?

 

[Procrustes Stretched]

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?' - George Stephanopoulos' Bottom Line

you've managed to avoid debating or challenging the idea.

how fuckin' stupid is that?

 

[manifold]

Here we go. We should have seen this coming.

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”

For Breyer, that right is not a foregone conclusion.

... he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?' - George Stephanopoulos' Bottom Line

Burning the flag? Free speech.
Burning the Koran? National security concern.

Wow.

It actually made be feel sick to my stomach to read this.

I couldn't possibly be more disgusted.

 

[Procrustes Stretched]

But Supreme Court Justice Stephen Breyer told me on "GMA" that he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.

“It will be answered over time in a series of cases which force people to think carefully..."

Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?' - George Stephanopoulos' Bottom Line

---------------------------

Supreme Court Justice Stephen Breyer talks about the right to burn Qurans and American flags.

Video - Breaking News Videos from CNN.com

------

What is it the so far two people who posted links do not get about their own links?

 

[Procrustes Stretched]

Here we go. We should have seen this coming.

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”

For Breyer, that right is not a foregone conclusion.

... he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.

“Holmes said it doesn’t mean you can shout 'fire' in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”

Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?' - George Stephanopoulos' Bottom Line

Burning the flag? Free speech.
Burning the Koran? National security concern.

Wow.

It actually made be feel sick to my stomach to read this.

I couldn't possibly be more disgusted.

mani officially joins the clueless.


okay here we go: stop reading the headline and read what Breyer says. Then go to the other link and see that Breyer is clarifying what people like you have miscomprehended.

 

[manifold]

okay here we go: stop reading the headline and read what Breyer says. Then go to the other link and see that Breyer is clarifying what people like you have miscomprehended.

STFU doucher.

I read the link from the OP, and I find the notion that he's even entertaining the slimmest of possibilities that burning a book might not be protected by the 1st Amendment to be outlandishly disgusting.

Good enough for you fuckface?