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A question for Constitutional scholar types. - 9/26/2011 11:54:12 PM   
HeatherMcLeather


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quote:

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.

The 1st amendment seems to be worded such that it only applies to Congress and not to any other levels of government. This brings up two questions in my mind.

1. Is this right, does it only apply to congress?
2. Does this mean that a city or state government could establish an official religion, or arrest people for criticizing the government?
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RE: A question for Constitutional scholar types. - 9/26/2011 11:57:06 PM   
gungadin09


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Status: offline 		My dad's a lawyer. i'll ask tomorrow.

pam

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RE: A question for Constitutional scholar types. - 9/26/2011 11:59:04 PM   
HeatherMcLeather


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RE: A question for Constitutional scholar types. - 9/27/2011 12:07:00 AM   
SternSkipper


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quote:

1. Is this right, does it only apply to congress?


Absolutely NOT... consider the jurisdiction of congress being superior to all lower jurisdictions. Which in the short answer they must follow congress. That said, over the years, the supreme court has continually revisited the 1st and added limitations all over the place. It's complex... but in most cases, non-harmful free speech wins...
If you want to rally crack open the can of worms wiki's page is a pretty good pocket reference:

http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution


quote:

2. Does this mean that a city or state government could establish an official religion, or arrest people for criticizing the government?


Nope and Nope as long as the FOLLOW the constitution... there very well could be cops right now in direct violation in NYC if some what I am hearing is true.





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RE: A question for Constitutional scholar types. - 9/27/2011 12:11:26 AM   
HeatherMcLeather


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quote:

consider the jurisdiction of congress being superior to all lower jurisdictions.
That's not how I read the 10th amendment. It implies just the opposite actually.

AND the 1st is the only one with such wording.

I skimmed the Wiki page, and didn't see anything about a ruling on this aspect.

Edit: Removed the reference to the 9th, as it really doesn't say what I first thought it did.


< Message edited by HeatherMcLeather -- 9/27/2011 12:14:37 AM >

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RE: A question for Constitutional scholar types. - 9/27/2011 12:17:50 AM   
gungadin09


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quote:

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.


So then the right to free speech applies to all levels of government, but is subject to certain restrictions. Come to think of it, the same is true of the right to bear arms.

ETA: In the 2nd paragraph of the link, wikipedia talks about how the First Amendment originally applied only to Congress, but the Supreme Court broadened it to include all levels of government in 1925. (In other words, they ruled that the 14th Amendment's Due Process Clause implies that the 1st, 2nd, 4th, 5th, 6th, and 8th Amendments apply to all levels of government.)

pam


< Message edited by gungadin09 -- 9/27/2011 12:36:29 AM >

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RE: A question for Constitutional scholar types. - 9/27/2011 12:30:37 AM   
SternSkipper


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quote:

That's not how I read the 9th and 10th amendments. They imply just the opposite actually.

AND the 1st is the only one with such wording.

I skimmed the Wiki page, and didn't see anything about a ruling on this aspect


If anything, the enoumeration of rights in the 9th ENSURE neither congress anyone else can screw with free speech etc...

The 10th is how we establish local control over our day to day lives it doesn't in itself negate anything. But it sets a criteria whereby if it's not a fundamental right, it should be determined by the state/community... that's how I've always understood it.



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RE: A question for Constitutional scholar types. - 9/27/2011 12:35:06 AM   
HeatherMcLeather


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quote:

ETA: In the 2nd paragraph, wikipedia talks about how the First Amendment originally applied only to Congress, but the supreme court broadened it to include all levels of government in 1925.
Cool thanks, that's what I get for just skimming rather than actually reading, eh?

Then how do you explain local laws that require you to apply for permission to hold a rally? Wouldn't that be abridging "the right of the people peaceably to assemble"?

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RE: A question for Constitutional scholar types. - 9/27/2011 12:41:09 AM   
gungadin09


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quote:

ORIGINAL: HeatherMcLeather
Then how do you explain local laws that require you to apply for permission to hold a rally? Wouldn't that be abridging "the right of the people peaceably to assemble"?
[/color]


Same as the local laws abridging the "right to bear arms". i guess they weren't being too literal when they said it shall not be abridged (at all). It CAN be abridged, at the court's discretion.

pam

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RE: A question for Constitutional scholar types. - 9/27/2011 5:56:32 AM   
DomKen


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quote:

ORIGINAL: HeatherMcLeather

quote:

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.

The 1st amendment seems to be worded such that it only applies to Congress and not to any other levels of government. This brings up two questions in my mind.

1. Is this right, does it only apply to congress?
2. Does this mean that a city or state government could establish an official religion, or arrest people for criticizing the government?


As originally written the entire Bill of Rights only applied to the federal government. The 14th Amendments is what applies most of it to the states.

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RE: A question for Constitutional scholar types. - 9/27/2011 6:55:48 AM   
Fightdirecto


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quote:

ORIGINAL: DomKen
quote:

ORIGINAL: HeatherMcLeather
quote:

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.

The 1st amendment seems to be worded such that it only applies to Congress and not to any other levels of government. This brings up two questions in my mind.

1. Is this right, does it only apply to congress?
2. Does this mean that a city or state government could establish an official religion, or arrest people for criticizing the government?

As originally written the entire Bill of Rights only applied to the federal government. The 14th Amendments is what applies most of it to the states.

Which is why we have, within the American population, a group sometimes called "Tenthers" who reject any Constitutional amendment after the 10th Amendment and proclaim, as the failed Confederacy once did, that the individual states are superior to the national government.

As stated earlier in this thread, if we say the 1st Amendment does not apply to the individual states but only to the federal government, an equally strong argument can be made that individual states can ignore the 2nd Amendment (for example, Rhode Island could ban private ownership of all firearms while Montana could allow private ownership of atomic bombs) or that the 5th Amendment principle of protection from self-incrimination only applies when you are accused of commiting a federal crime, and not when you are accused of violating a state law or a town ordinance.

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RE: A question for Constitutional scholar types. - 9/27/2011 6:58:38 AM   
tazzygirl


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Status: offline 		I just gotta ask... why stop at the tenth? Why do they feel that number is enough and the rest are to be ignored?

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RE: A question for Constitutional scholar types. - 9/27/2011 7:01:29 AM   
Fightdirecto


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Status: offline 		An interesting argument within some of the Religious Right is that that some of them believe the 1st Amendment should be interpreted as:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof if the religion is a variant of Protestant Christianity, since all other alledged "religions" are not really "religions" but political ideologies;...

See The Religious Right's Exclusive Claim to Religious Freedom

< Message edited by Fightdirecto -- 9/27/2011 7:08:00 AM >

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- Ellie Wiesel

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RE: A question for Constitutional scholar types. - 9/27/2011 7:30:25 AM   
Iamsemisweet


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Status: offline 		Banning a rally based on content would violate the constitution.  Look at the Ku Klux Klan cases defended by the ACLU.  However, reasonable (whatever that means) restrictions can be placed on when, where, etc., under the localities police powers.
quote:

ORIGINAL: HeatherMcLeather

quote:

ETA: In the 2nd paragraph, wikipedia talks about how the First Amendment originally applied only to Congress, but the supreme court broadened it to include all levels of government in 1925.
Cool thanks, that's what I get for just skimming rather than actually reading, eh?

Then how do you explain local laws that require you to apply for permission to hold a rally? Wouldn't that be abridging "the right of the people peaceably to assemble"?



_____________________________

Alice: But I don't want to go among mad people.
The Cat: Oh, you can't help that. We're all mad here. I'm mad. You're mad.
Alice: How do you know I'm mad?
The Cat: You must be. Or you wouldn't have come here.

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RE: A question for Constitutional scholar types. - 9/27/2011 3:35:19 PM   
HeatherMcLeather


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quote:

As stated earlier in this thread, if we say the 1st Amendment does not apply to the individual states but only to the federal government, an equally strong argument can be made that individual states can ignore the 2nd Amendment (for example, Rhode Island could ban private ownership of all firearms while Montana could allow private ownership of atomic bombs) or that the 5th Amendment principle of protection from self-incrimination only applies when you are accused of commiting a federal crime, and not when you are accused of violating a state law or a town ordinance.
I don't see that at all, only the 1st makes a specific reference to Congress, all the others are generic, stating only that the relevant right won't be abridged, etc. 

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RE: A question for Constitutional scholar types. - 9/27/2011 3:43:11 PM   
Iamsemisweet


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Status: offline 		Here is a brief description of the 14th Amendment.  One of the things it does is give some justification for applying other amendments to the States.  Which just proves that if you give them an inch, they will take a mile!
It doesn't specifically state that the protections provided in the Constitution apply to the States, but it has been interpreted to do so.  Just like a right to privacy being interpreted into the constitution where it is not specifically enumerated.

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9,1868 as one of the Reconstruction Amendments. Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v. Sandford ruling by the Supreme Court (1857) that held that blacks could not be citizens of the United States.[1] Its Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights. Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in the United States. In Reed v. Reed (1971), the Supreme Court for the first time ruled that laws arbitrarily requiring sex discrimination violated the Equal Protection Clause. The amendment also includes a number of clauses dealing with the Confederacy and its officials.

< Message edited by Iamsemisweet -- 9/27/2011 3:45:41 PM >

_____________________________

Alice: But I don't want to go among mad people.
The Cat: Oh, you can't help that. We're all mad here. I'm mad. You're mad.
Alice: How do you know I'm mad?
The Cat: You must be. Or you wouldn't have come here.

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RE: A question for Constitutional scholar types. - 9/27/2011 3:50:03 PM   
HeatherMcLeather


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quote:

However, reasonable (whatever that means) restrictions can be placed on when, where, etc., under the localities police powers.
I get the impression that Congress and the Supreme Court have, over the years, come to the conclusion that the Constitution as written is an unworkabley idealistic document, and have decided to basically just over ride it when it is inconvenient. I'm sure they have come up with some pretty elaborate and fanciful interpretations to justify it, but "shall make no law" is really pretty unequivocal, so is "shall not be infringed". In fact, the wording throughout is pretty hard to interpret other than as written, the intent is quite clear, at least to me.

I think if I were a U.S. citizen, I would be pretty miffed about that.

And I think I may just have found my essay topic.

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RE: A question for Constitutional scholar types. - 9/27/2011 4:03:31 PM   
TreasureKY


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quote:

ORIGINAL: HeatherMcLeather

I think if I were a U.S. citizen, I would be pretty miffed about that.


Quite a few are. 

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RE: A question for Constitutional scholar types. - 9/27/2011 4:07:55 PM   
slvemike4u


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Status: offline 		I'm not so sure I would jump to such a conclusion,while the Constitution is "clear" on these matters it is intentinally ambiguous enough to allow for the realities of changing circumstances.
While it draws a definite line in the sand in enumerating certain rights it allows the flexibility for municipalities and local populaces to interpet where that line is...as long as they do not stray too far over that line.
Basically what you are looking at is the continuing argument between strict Constitutionalists and those who see the Document as a living thing,able to be adapted to our evolving society.
The strict Constitutionalist would have a literal and inflexible interpetation ...and would be hard pressed to react to,for an example,an outbreak of a contagious disease...one where the closing of state borders was necessary in order to slow and eventually stop the spread of the contagion.....the Constitution would ot allow the federal gov. to take such an action...but in such a case would the Founders want the document to be used as a suicide pact ?

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RE: A question for Constitutional scholar types. - 9/27/2011 4:23:32 PM   
farglebargle


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quote:

ORIGINAL: tazzygirl

I just gotta ask... why stop at the tenth? Why do they feel that number is enough and the rest are to be ignored?


It was before the 14th Amendment freed the slaves...

Remember, the teabagging wing and the rest of the Republican party are bigots. After all, who stood up and defended our troops during the debate when they were gay-bashed?

Not a single Republican.

< Message edited by farglebargle -- 9/27/2011 4:25:21 PM >

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