Buffman

Many thanks Toto. That's just one of the many references I lost during the PC nightmares. Did you catch my own error? It was more than 50 of the 56 signers, not 55. I fell into the David Barton brainwashing as I typed that. I seem to recall having posted the accurate figures several other times. I lost that milticolored finished product that I sent to several parties I had hoped might give it some publicity. It was much more professional because of the input from several other highly skilled and knowledgeable sources.

Stephen Maturin

Hi Leviathan,

Here's hoping that the brief writing goes well.

It looks like the discussion of Newdow II and its application of Lee has pretty much run out of steam. Just a few general comments on your last post:

Objection. Asked and answered. Determining whether a particular expression has "lost through rote repetition any significant religious content" (Justice Brennan's description of CD) can't, or at least shouldn't, be done by judicial fiat. The question is a factual one and ought to be answered through empirical means. In this case, the reactions to Newdow I provide empirical proof that "under God" retains significant religious content for a whole helluva lot of people.

You betcha. But in the hypothetical our voluntary-membership national church is established by Congress and supported by a majority of citizens. Under your proposed majoritarian approach to Establishment Clause jurisprudence, in which courts defer to the legislative/popular will, the law is constitutional. Original intent is irrelevant under that approach, is it not?

Well, that begs the question. The issue is whether First Amendment interpretation is one of those areas. I think not. Deferring to legislative/majority will in the religion arena can and no doubt would lead to wholesale trampling of religious minorities' free exercise rights.

As for the EC, that deals not so much with individual rights as with government power, i.e., how far may the state go in endorsing, advancing or inhibiting religion. I'd rather not give Congress carte blanche to define the parameters of its own authority in that field.

I'm all confusimacated now. (But hey, that's nothing new for me. ) It's been a long time since I studied the cases you referenced, and even then I was working under the duress inherent in being scared shitless of flunking a Con Law I exam. But if memory serves, Nebbia and Lochner weren't Commerce Clause cases; they were part of a line of cases falling under the general heading of economic substantive due process, a Fourteenth Amendment issue. Beyond that, I don't remember a lot other than the fact that Holmes' dissent in Lochner was quite good.

I though you were talking about the Commerce Clause cases decided during the FDR administration. You know, the Court shoots down Roosevelt's legislation based on a narrow reading of the CC, FDR proposes increasing the number of justices on the Court (the infamous "Court packing" plan), the Court suddenly starts seeing things FDR's way and interpreting the CC expansively. That stuff was pretty odious.

Actually, the Sherman court found that "Lee concluded without renewing Lemon's lease." That's one of those cool Easterbrookian metaphors, but it's a singularly unfortunate one in this context. Supreme Court precedents simply don't need "renewing" in order to remain binding.

That said, I think StrictSeparationist did a first rate job in this post of explaining why the Sherman court wasn't entirely blameworthy in its refusal to apply Lemon.

Since we've hit all these brick walls in the discussion of Lee and Newdow II, maybe we should move on to Newdow I and its application of the Lemon test to the 1954 Act. Here's a modest proposal for ya:

RESOLVED: (1) In Newdow I the Ninth Circuit correctly applied the analysis set forth in Lemon v. Kurtzman and Wallace v. Jaffree, and correctly held that the 1954 Act of Congress adding "under God" to the Pledge fails the secular purpose prong of the Lemon test.

(2) Assuming it grants cert. and reaches the merits of the EC issue, the Supreme Court should reaffirm Lemon and adopt the Ninth Circuit's analysis of the 1954 Act.

enfant terrible

So then, you would consider Hegel a Marxist? Clearly no course on Marxism can make any sense if it doesn't include Hegel.

BTW, using Internet search as an argument about spelling is a great idea; we should immediately change all dictionaries to list "masterbation" instead of "masturbation".

Leviathan

Are you going to be such a pedant, that you complain about the "inaccuracies" of spelling from the Congressional findings for 4 U.S.C. 4? Is this the way you gripe about the legislative opinion of an *overwhelming majority* of Congresspersons? If all you're going to do is nitpick at the legislative authority, get on the stump and run for Congress (though with your political views from this thread, I'm sure you won't get very far).

Stephen:

The brief writing took a little longer than expected, but hey, I had to do 3 instead of 1.

Just a few comments, most of your remarks about "running out of steam," I agree with.

Schenck v. United States, one of the deference cases I (believe) I was speaking to, was a First Amendment freedom of speech case. It seems we must defer to the majority in some instances. Justice Holmes' fire analogy is still used in Con. Law classes today: I'd say its still a fine proposition: you must weigh the interests of the minority versus the majority will. Its a tricky balance, to be sure, though.

And about Nebbia, Lochner, et al, you're exactly right: I've confused my own cases that I'm not 3 months removed from the exam! However, I believe my general point is still true, with the Lochner cases: Lochner upheld a freedom of contract theory which screwed tons of workers in this nation, all under the vestige of a "substantive right," and the Court did not defer to the findings of the legislature.

Then, enter Nebbia, et. al, and we begin to defer to the legislature. I'd say that isn't "odious" (nice word). But we're beating a dead horse: to the new horse.

Oh goodness, its been awhile since I reviewed Newdow. I'll have to look that back over.

I fear we will tread into the same debate as we've just had: the whole debate seems to be answered in one question: do you see the Pledge as a religious, political, or a religious and political act?

If we accept religious, then you are correct in your resolution.
If we accept political, then I believe I am correct in my rebuttal.
If we accept both, then there is a debate to be had, and I believe this is when my deference position of finding "any other justifiable reason" comes into play.

I'll review Newdow tonight. Nice topic: we haven't analyzed Lemon yet.

Toto

Lev - I am not sure where you got the idea that Buffman was concerned with spelling. He (and the rest of us) have some detailed objections to the findings of fact on historical grounds.

Start with this thread:

http://www.iidb.org/vbb/showthread.p...threadid=40317

I think there is another thread, I'll try to find it.

StrictSeparationist

Sorry, but I'm unable to locate this "deference argument" that you keep referring to, Leviathan. But as for Schenck, it sounds as though you may have gotten your precedents mixed up. Although I suppose that the case does involve the opposition of the majority in one way, I suppose (since it's possible that a majority of American people at the time of the decision disagreed with the ideas that Schenck's pamphlets preached), the real issue was whether the government could punish the advocacy of unlawful action. Perhaps you could explain what you mean in more detail and relate how you think Schenck stands for the principle of majority rule.

Buffman

Thanks again, Toto. Since this youmg law student, who claims that he is an Early American History major, said that he wasn't concerned with accuracy, I haven't paid much attention to anything he has posted since then. However, other readers deserve the most accurate information I can find.

It appears that the only facts that interest this fellow are those that can be twisted/subverted to support his previously conditioned opinions. For him, accuracy is irrelevant. What a sad comment on the schools he has attended and teachers who instructed (or perhaps brainwashed) him.

Leviathan

It never ceases to amaze me, how personal some people can get over the internet, simply b/c they're pissed off someone will not answer their inane questions. If you're so put out with my university, I'd be happy to meet you up good ole' I75, and meet you in Georgia so you can come peruse my academic record. I've already told you I have my SAT scores waiting.

Once again, a personal attack. Once again, not chastized by the "powers that be." Gosh, I wonder why.

Buffman, you can continue to *say* you're ignoring everything I say, but I'm quite convinced that you're going to attempt to find something to latch onto, reading every post over with a fine-tooth comb, to make another stupid personal attack . And while you're at it, gosh, you ignored my scathing inquiries of your pedantry about 4 U.S.C. 4. Run for Congress: you're certainly "aged" and "experienced" enough, in your ideology, to wow the masses with your charming wit.

StrictSeperationist:

Schenck was a First Amendment case dealing with a specific federal law (forgive me for forgetting the name of the Act). That act was passed by a majority of both houses of Congress, and thus the legislative finding of that act was that a majority of this nation felt that the "speech" prohibited by that act, should be prevented from being conveyed in public, through Schenck's pamphlets, and therefore, that the individual's "right" to freedom of speech, vested in the First Amendment, did not outweigh the concerns of the majority. Thus, the "deference" argument is deferring to the Congressional intent of the act, over any supposed threat to the individual's First Amendment rights: analogous to the situation we have here, with another First Amendment right, and weighing that right against the interests of the majority will. What confusion you have, then, I am lost to help you with.

A snippet of the decision, if you will:

"But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the [*52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. [b]We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. /b]But HN2the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [***474] has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. HN3The statute of 1917 in § 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words." - 249 U.S. 47, 51-52.


Stephen, I apologize for being sidetracked by this hooligan. I guess he, like Mr. Toto, will have to be put on ignore, as he is incapable of constructive conversation with someone who disagrees with him. I'll get to Newdow before tommorrow, I promise.

StrictSeparationist

Leviathan: I think it's unreasonable to classify Schenck as a "deference" case, simply because it involved the Espionage Act of 1917. By that argument, almost every First Amendment case that has ever come before the Supreme Court is a "deference" case, since most involved government action that, if it were put to a national opinion poll, would probably be sanctioned by a majority. I suppose there's nothing technically wrong with analyzing cases in this way, but it seems odd to classify a case on the basis of such a relatively innocuous factor. I also don't appreciate your condescending remark: I phrased my post in the way I did (implying confusion on my part, when in fact what I was really saying was that your classification made no sense) in order to avoid giving offense, which you seem, throughout this thread, so eager to take. I assue you that if patronizing drivel is my only reward for trying to keep this discussion civil, I won't waste time on it in the future.

I would also quarrel with your assertion that this case deals with a "right" that is really similar to the freedom of speech right asserted by Schenck. Although current Supreme Court precedent, most notably Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982) have forced the federal courts to adopt a model of the Establishment Clause that effectively relegates it to a somewhat superfluous complement to the Free Exercise Clause, this model conflicts with the plain language of the Establishment Clause. "Congress shall make no law respecting an establishment of religion" does not, by its text or implications, guarantee some sort of personal right as do all the other parts of the First Amendment. Rather, the Establishment Clause is simply a flat prohibition on certain types of government activity, without regard for the effect that that activity might have on nonconformists. Michael Newdow was of course forced to accept the Supreme Court's erroneous interpretation of the Establishment Clause, and thus he had to show an actual injury to his person (or, in this case, his daughter's person) in order to have standing to file suit. That the language of his suit necessarily supports this fiction does not disguise the fact that his primary reason for going to court was a belief that Congress violated the Establishment Clause in the statute amending the Pledge of Allegiance in 1954, even though he probably didn't really incur any actual harm from that violation.

In any event, this has become a lot longer than I intended it, and this is neither the time nor the place to expound upon my own view that the current state of Establishment Clause law is deplorable and needs to be completely rethought. Suffice it to say, your "deference" argument has little to do with Schenck and I know the particular passage that you posted well enough that it didn't really need repeating.

Leviathan

I apologize, I should have been clearer: the "hooligan" remark was not targeted at you. I only assumed that since you and I were having a legal discussion, that you would see that discussion is analogous to the one Stephen and myself was having, and thus the remark was meant for the gentleman that just attacked me personally again.

Thus, it wasn't targeted at you, and no ill will be taken from your aforementioned remark: just a big misunderstanding.

But, if, in contrast, you took offense to my saying, "What confusion you have, then, I am lost to help you with," I honestly don't see why. You initially stated you had some confusion in my argument: I cannot translate "confusion" to mean, "I don't accept your argument." You simply stated you had some confusion, and you assume I'm supposed to just magically follow your train of thought, and see you're remarking that my "classification makes no sense?" Just be honest and come out and say you disliked my argument. In a round-about way, you were disguising the truth, I'm sorry, I cannot read your mind.

To the debate

Please reference the paragraph from Justice Holmes I provided. You state you've read it enough to know its content, well then please take the few seconds to read the bolded material, and tell me how that is not supporting my interpretation of Schenck. Please allow me the time to explain why:

"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Holmes is recognizing the sensitive nature of the First Amendment right to freedom of speech, during a war, and perhaps how those rights will bend to the interests of the majority, when there is a "clear and present danger."

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [***474] has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

Here, Holmes is recognizing Congress' duty of curing evils perceived by the populace. One of those evils is the expression of dissident ideas that are a threat to the government, during a time of war. In the Court's opinion, such threats create a "clear and present danger," and therefore Congress "has a right to prevent" these acts of speech, even if there is a "supposed" violation to the First Amendment. As Holmes alluded to earlier in the paragraph, such rights may change based upon the circumstances of the speech. That's why he said the inquiry was one of "proximity and degree."

Holmes makes note of the Congressional authority to address evils, and how the court must balance that against the rights of the individual. Holmes even goes as far as to make the admission that, absent a war-situation, the defendant's speech *probably* is protected by the First AMendment.

Thus, this case seems to be a clear-cut example of weighing the interests of the majority, through legislation and Congressional findings, the Espionage Act, versus the rights of the individual, the prohibition against restrictions on the freedom of speech, during wartime, via the Constitution. That's what I dub, a "deference"case, when the court errs on the side of the majority. The Court applies the correct level of judicial scrutiny, and defers to the Congressional findings of a "clear and present" danger. Seems pretty clear cut to me.

Additionally, your argument concerning the EC clause not creating a right, I just find problematic. The EC provides that all American citizens will be free from their government establishing a religion in society. How is that *not* a substantive right?