usmbguest5318
Gold Member
Rhetorically, the post above is just all over the place, that is incoherent, and I'm almost certain I should not endeavor to respond in substance to any statements in it. How is it incoherent? Well, here're three examples:
- You mention "wall or other immigration policies" with regard to constitutionality, and mention not one constitutional provision that you think supports or that you think is violated by any "wall or other immigration" policy.
I get the general theme of constitutionality needing to be maintained, and I don't disagree with that. Who would? To actually consider and subsequently discuss your remarks about the constitutionality of Trump's "wall or other immigration policies," don't you think you need to at least identify one or several specific policy points and the respective provisions of the Constitution that support them or that they violate?
I certainly do, if for no other reason than to reign-in the scope of the discussion, which given the thread title probably should be contexted around something having to do with whether Trump will face a 2020 election campaign challenge...I'm certainly not going to just launch into a discussion of every aspect of Trump's "wall or other immigration policies" and their constitutionality (or lack thereof) merely to ensure I address whichever one(s) you happen to have in mind. Even given my willingness to comprehensively discuss my/other's ideas, that's more than I'm going to undertake. - In your post you make several remarks alluding to various provisions of the Constitution, including the 1st, 5th, and 14th Amendments and yet you completely ignore Article I, Section 8, which isn't an amendment to the document, but rather a standing core component of it. For some of those statements, "empty" is a better description of your assertions themselves than is "incoherent," for the incoherence is seen only upon trying to see how they relate to something specific vis a vis the topic and remarks that spurred you to make the statements.
- 1st Amendment reference -- "defend people of ALL beliefs and Creed's equally"
- 5th & 14th Amendment references:
- " what matters with Trump or any federal official is they uphold their oath to defend the Constitution and due process of laws there under"
- "Clinton abused power to obstruct Justice and bypass due process of laws"
- Multiple times you expressed notions of, what for want of a term, I'll call "idealistic absolutism," that is the "all or nothing" theme implicit in several of your remarks. You several times referred to satisfying all the people or parties. It's absurd to think that is going to happen. Broad spectrum policies such as those we ponder in politics satisfy (displease) by degrees. You also several times asserted as to what is, when the things you aver are, simply are not.
Agreed.
The premise here is just absurd. The substance of your statement is "if policies create problems, they are unconstitutional and thus will not be be enacted." Well, that's clearly not so. U.S. history gives us multiple examples of laws that created problems, problems that were foreseen prior to the laws' enactment, and that were yet enacted.
- The 18th Amendment
- The Constitution itself was enacted such that under it slavery was permitted. The 13th Amendment removed that allowance.
- The end of 20th century saw the climax of Washington's war on the tobacco industry that treats us all like children in order to stop kids from smoking. Yet Washington had subsidized tobacco for decades. What sort of problems did tobacco subsidies engender? More than the direct cash cost of the subsidies, to say the least.
- In the realm of healthcare one finds the laws that established the laws and policies that encourage(-d) business to offer comprehensive, first-dollar insurance policies to workers, and Medicare/Medicaid, the government’s massive fee-for-service insurance programs for the elderly and poor, have resulted in three of every four dollars of medical care being directly paid by someone other than the recipient of the goods/services. The natural result has been rising demand, exploding costs, and increasing bureaucratization as private insurers and government alike attempt to restrict patient choice.
The single biggest problem with health care and health insurance is, IMO, that we, the whole world really, has implemented a model whereby individuals receive and benefit directly from the services provided, but they don't at all pay anything close to the selling price of those services. Now, sure as I see that is the root problem, I also realize there's likely no way to fix it. Most "stuff" that people want and need is priced such that most consumers can afford to buy it. No so health care, and I cannot imagine that medical service and equipment providers/producers are at all willing to accept lower rates of remuneration. Indeed, it's so "not so" that many people don't perceive that they are buying something (except, of course, when they're ticked off with a health care provider). (The increase in high deductible plans helps resolve the economic problem I've described by making consumers of health care pay more of the cost of the care they purchase/receive. Of course, they also reduce demand for health care services/goods. That, however, may not be a bad thing.)
Quite frankly, I don't completely oppose the notion of health insurance, but I absolutely oppose the notion that any tax dollars go to pay for the health care of individuals who routinely exhibit behaviors that are detrimental to good health: smoking, being more than ten pounds overweight, using alcohol and recreational drugs. I don't have any desire to actively proscribe those behaviors, but I would surely prefer our system provide no subsidized (regardless of who/what organization provides the subsidy) health insurance/health care to people who practice those things.
The fact of the matter is that what is and is not constitutional at any given point in time is determined ultimately by the SCOTUS. To the extent the SCOTUS has upheld O-care provisions, those provisions were and are constitutional.
Unlike Donald Trump this past Friday, Justice Roberts took no unilateral action, he ruled with other justices on the nine member panel called the SCOTUS. The justices' very job is, in part, to decide what is and is not constitutional. They made their decision. SCOTUS justices make some decisions I like and some I don't. All their decisions, until reversed or superseded by an amendment to the Constitution, are by the terms of the Constitution, constitutional.
I have news for you: all beliefs are not defensible. The fact that one has a belief (or several) of some sort does not at all make that belief sound and thus defensible, let alone soundly defensible given the terms of the Constitution. What do I mean?
Locke’s approach to toleration is not defensible today. Jeremy Waldron defines toleration as “an argument which gives a reason for not interfering with a person’s beliefs even when we have a reason to hold that those beliefs or practices are mistaken, heretical or depraved.” Locke’s doctrine of toleration explicitly excludes certain groups from being tolerated, namely, atheists and Catholics.
For example, Locke says that “those are not at all to be tolerated who deny the being of God…the taking away of God though but even in thought, dissolves all.” Although Locke’s idea of toleration does exclude certain groups, one can very credibly argue that it is defensible because, as Locke argued, exclusion is necessary to maintain a civil society. As Alex Tuckness argues, “the principle [Locke] derived was not ‘suppress beliefs you think harmful to the public good…’ but rather ‘suppress only those beliefs that would make civil society impossible if widely held.’”
Locke’s toleration doctrine, when applied to modern society, would not necessarily target Atheists and Catholics, but other modern groups that pose a threat. For example, the American government uses this principle to justify if not explicit intoleration, then discrimination against groups of people they believe to be a threat to the United States. They discriminate when drafting laws regarding airport security, military detention, and personal surveillance.
In the United States, established law regarding religious freedoms considers the effects of a secular law by striking it down when it either advances or inhibits religion. This is necessary because, as Waldron points out, secular or neutral laws “may discriminate unequally…against a particular group.” Locke’s theory of neutrality does not protect citizens against this possibly unintentional, but still restrictive, discrimination, nor should it if civil society is to be maintained. We see as much manifest in our tolerance, for example, of Muslim belief, but draw the line at allowing Sharia Law to, in courtrooms, supersede the Constitution.
The effects of secular laws are, in the context of tolerating belief, irrelevant for any acts of the magistrate to force his religion on others be in vain. As Locke says, “true and saving religion consists in the inward persuasion of the mind…it cannot be compelled to the belief of anything by outward force.” Secular law that unequally affects or restricts a particular religion could in no way have an impact on any follower’s belief or, therefore, religious freedom.
The key, however, is that freedom of belief and freedom of action are different and that difference is well established in our code of laws via the concepts of actus rea and mens rea. You are free to believe, for instance, that I should be killed, or whatever else you care to believe. You are not free to act on that belief. The same reasoning applies to a host of criminally and civilly proscribed behaviors. Similarly, one's beliefs need not even be reflective of what is so demonstratively.
I can assure you that simply is not the case. It has not been the case for any president. Satisfying all the people is a pipe dream and insisting upon doing so is a prescription for failure.
Again, that simply is not so. It's not ever going to be.
As noted above, you are free to believe that is so, but you are wrong in asserting that is so. The relevant standing SCOTUS ruling requires mens rea and actus rea be proven to obtain a guilty verdict with regard to the statutes Mrs. Clinton's actions violated.
- MENS REA
- Concept of Mens Rea in the Criminal Law
- The general principle of mens rea
- The Supreme Court on Mens Rea: 2008–2015
- INTENT AND MOTIVE ARE DIFFERENT
Section 793(f) is a subsection of the Espionage Act, a controversial statute enacted during World War I in order to combat efforts by German agents to undermine the American war effort. The Act has been amended and renumbered many times, but its core provisions have not substantively changed. The Espionage Act has only sparingly been used to file criminal charges, but when it has been used it is often in high-profile cases. Eugene Debs was jailed under the Espionage Act for anti-war activities during World War I. The Rosenbergs were charged under the Espionage Actwhen they sold nuclear secrets to the Soviet Union. More recently, both Chelsea Manning and Edward Snowden were charged under the Espionage Act for providing classified material to WikiLeaks.
The law has been controversial since its inception and prosecutions under the Act have been challenged as unconstitutional in several instances. The most famous of these cases is probably Schenck v. United States (1919), where the government charged two men with obstructing registration for the military draft by distributing leaflets urging young men not to register. The Supreme Court heard the case and unanimously upheld the convictions and the statute. It was in Schenck that Justice Oliver Wendell Holmes famously wrote that it is not protected speech to “yell fire in a crowded theater.”
But as time went by, feeling towards the Espionage Act began to sour. Later in 1919, the Supreme Court heard Abrams v. United States. That case involved the distribution of leaflets by anarchists who urged factory workers to refuse to participate in production of war materiel. In Abrams, the Court again upheld the convictions, but this time the decision was not unanimous. Holmes, who had written the majority opinion in Schenck, was one of the dissenters. Two years later, the Sedition Act, a 1918 amendment to the Espionage Act that imposed criminal sanctions for anti-war speech, was repealed by Congress in its entirety.
The Espionage Act was left on the books, however, in the years after the war it was used only sparingly. When it was used, it was often controversial because it resulted in prosecutions that civil libertarians believed infringed on press freedom and the right to political protest. Perhaps the most famous of these cases is the prosecution of Daniel Ellsberg for leaking the Pentagon papers The courts too grew wary of the Espionage Act and as a result their readings of it narrowed the scope of the law and limited when it could be used.
This helps provide context as to why James Comey insisted that intent was required to satisfy the requirement of 793(f). Even though the plain language of the statute reads “gross negligence,” the Supreme Court has essentially rewritten the statue to require intent to sustain a conviction.
In Gorin v. United States (1941), the Supreme Court heard a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union on Japanese intelligence operations in the United States. In that case, the defendant was charged with selling information “relating to the national defense” to a foreign power. The defendant argued on appeal that the phrase “relating to the national defense” was unconstitutionally vague, so much so that the defendant was deprived of the ability to predetermine whether his actions were a crime.
Justice Stanley Reed, a conservative justice, wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.” Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional. Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense. The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:
The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute. In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).
Without the requirement of intent, the phrase “relating to the national defense” would be unconstitutionally vague. This reading of the statute has guided federal prosecutors ever since, which is why Comey based his decision not to file charges on Clinton’s lack of intent. This is also why no one has ever been convicted of violating 793(f) on a gross negligence theory. It is also why Mrs. Clinton was not prosecuted even though she was found to have had classified material on her personal server.
See also:
- National Security Information Disclosures and the Role of Intent
- 10 things we learned about Clinton's emails from the new FBI documents
- Intent is key in classified information cases
- Why the FBI Let Hillary Clinton Off the Hook
- Hillary Clinton’s Emails: Do The Precedents Back James Comey’s Recommendation?
- Prosecuting Leaks under U.S. Law
Well, that's a normative statement, and frankly one with which I agree.
