SCOTUS impeachment

[KEmperor]

Are we talking about that emminent domain decision here?  Sheesh, why on earth do you people care about that?  I can think of plenty of other rights and freedoms that are under threat that you might actually effect you.

affect*

What does this * mean?

He was pointing out your usage error.  I mess this one up all of the time.

*She

[Emsworth]

Impeachment is only for actual crimes that could be tried in a court of law. If the offense is not triable, then it is not impeachable either. (Such a view is in accord with precedent.)

A Justice cannot be charged for "making an incorrect decision," as doing so is not in and of itself a crime. He can be charged with perjury for violating the oath of office, but such a charge reaches a logistical hurdle: the Supreme Court is the ultimate arbiter of the Constitution (rightly or wrongly), and therefore, the Constitution is what the court says it is.

[The Dowager Mod]

Impeachment is only for actual crimes that could be tried in a court of law. If the offense is not triable, then it is not impeachable either. (Such a view is in accord with precedent.)

A Justice cannot be charged for "making an incorrect decision," as doing so is not in and of itself a crime. He can be charged with perjury for violating the oath of office, but such a charge reaches a logistical hurdle: the Supreme Court is the ultimate arbiter of the Constitution (rightly or wrongly), and therefore, the Constitution is what the court says it is.

The point i was trying to make.
who has jurisdiction to try a supreme court justice?
anyone?anyone?Bueller?

[2952-0-0]

Let's see how many big corps like Halliburton are cheering over this decision. I'm sure Karl Rove and Dick Cheney are spinning in their hearts.

[True Federalist (진정한 연방 주의자)]

Has a Supreme Court Justice ever been impeached before?

Associate Justice Samuel Chase was impeached by the House in 1804 and acquitted by the Senate in 1805.  To date he is the only Supreme Court Justice that has been impeached.

[Bono]

Um, I'm sorry, but I don't go around signing petitions to impeach judges just because they disagree with me on one ruling. There is absolutely nothing in the Constitution that prohibits a state from taking private property for commercial development.

The dissenters are better on most issues, anyway.

If this ruling was actually overturning the doctrine of incorporation, you would be right, but, despite having the right outcome, the rationale for this decision is very dangerous.

[David S]

That was the correct ruling.

I'm sure we've had this discussion before but please refresh my geezer memory; what is the reasoning behind that belief?

[MODU]

I found this article to be about as informative regarding impeaching judges:

"IMPEACHING FEDERAL JUDGES:
A COVENANTAL AND CONSTITUTIONAL RESPONSE
TO JUDICIAL TYRANNY"

It's a long read, but interesting.

[Emsworth]

That was the correct ruling.

I'm sure we've had this discussion before but please refresh my geezer memory; what is the reasoning behind that belief?

A18 argues against the doctrine of incorporation. He holds that the Bill of Rights does not apply to the states, even upon considering the Fourteenth Amendment's due process clause. Therefore, he holds that states may seize private property as they wish, since the Fifth Amendment does not apply to them.

[David S]

That was the correct ruling.

I'm sure we've had this discussion before but please refresh my geezer memory; what is the reasoning behind that belief?

A18 argues against the doctrine of incorporation. He holds that the Bill of Rights does not apply to the states, even upon considering the Fourteenth Amendment's due process clause. Therefore, he holds that states may seize private property as they wish, since the Fifth Amendment does not apply to them.

I would argue that most of the Bill of Rights does apply to the states as well as the federal government. The 1st amendment says; "Congress shall make no law..."  Congress specifically applies to the legislative branch of the federal government. So the First Amendment is clearly aimed at the federal government. But the 5th amendment contains no such qualifier. It protects property rights from all governments.

Further the second paragraph of article VI states;
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Finally as far as I can tell none of the nine justices claimed that the Fifth Amendment does not apply to the states. The case hinged on the meaning of “public use” not on the applicability of the Fifth Amendment to the states.

[A18]

The fact that the Constitution is the supreme law of the land is not relevant, because the Bill of Rights is an exclusively federal feature. By your logic, "The Executive power shall be vested in a president of the United States" would mean that the president was the executive of each state.

Not a single justice argued that the fifth amendment itself applies to the states. They say that it falls under substantive due process, which is a joke that dates back to Dred Scott.

[Emsworth]

But the 5th amendment contains no such qualifier. It protects property rights from all governments.

I have to agree with A18 on this issue. No part of the Constitution directly applies to the states unless it explicitly states otherwise. To quote John Marshall in Barron v. Baltimore:

"The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States."

Therefore, an argument that the ruling is incorrect should really be based on the substantive due process argument under the Fourteenth Amendment, not the Fifth Amendment

[David S]

If the fifth Amendment does not apply to the states then the supreme court would not have jurisdiction should not have heard the case at all.

I stand by my earlier comments.

[Emsworth]

If the fifth Amendment does not apply to the states then the supreme court would not have jurisdiction should not have heard the case at all.

The argument based on the Fourteenth Amendment's due process clause and privileges and immunities clause still stands.

[David S]

If the fifth Amendment does not apply to the states then the supreme court would not have jurisdiction should not have heard the case at all.

The argument based on the Fourteenth Amendment's due process clause and privileges and immunities clause still stands.

I don't recall the 14th amendment being mentioned in the case.

edit; OK O'conner's opinion mentions that the Fifth amendment is made applicable to the states by the 14th. However as I stated before "no " justice claimed that the 5th was not applicable to the states, and in fact the meaning of "public use" was the basis of the dispute.

[A18]

I said:

Not a single justice argued that the fifth amendment itself applies to the states.

Incorporation is a (fraudulent) indirect result of the fourteenth amendment. It is purely a modern phenomenon, not used in any volume until the New Deal Court.

[jokerman]

I signed it

[Schmitz in 1972]

Looks like there's a lot of misinformation about what the Constitution says. I'll clear things up a bit. I'll preface these remarks by saying that most of the arguments I'll make are no longer applicable as per previous judicial shredding of the constitution.

1. The argument that the 5th amendment doesn't apply to the states is absurd. While most amendments deal with the powers of the government, the language of the amendment makes it perfectly clear that it deals only with the right of the individual. The rights listed in the 5th amendment are rights that all people have and cannot be deprived of by any level of government, federal, state, county, or local. If the amendment in question were the 1st amendment, which is clearly prefaced with "Congress shall make no law regarding...", I would be forced to agree with A18 that the amendment doesn't apply to the states (in fact, Massachusetts had a state church well into the 19th century).

2. However, the key passage in amendment 5 is "nor shall private property be taken for public use, without just compensation." One could argue that in this case, the property was being taken for private use rather than public, and is thus not under the jurisdiction of the 5th amendment. The only answer to this argument is that the right is found in the 9th amendments "other [rights] retained by the people." I'm inclined to agree that the right is found in the 9th amendment, otherwise common standards of justice would be set back several centuries.

[David S]

I said:

Not a single justice argued that the fifth amendment itself applies to the states.

Incorporation is a (fraudulent) indirect result of the fourteenth amendment. It is purely a modern phenomenon, not used in any volume until the New Deal Court.

Boy you really want to dig up the whole cemetery don't you. There is an old adage: "Be careful what you wish for."  Before you ditch the protections of the Bill of Rights you might want to consider; Does your state constitution provide all of the protections you are ready to throw away? Does it say you have a right to own guns? or that a search warrant must be obtained to search your home? or that you cannot be forced to testify against yourself? or that you have a right to a jury trial if you are accused of a crime? Or that the state cannot prosecute you over and over again for the same crime until they get a conviction? Does it protect you from cruel and unusual punishment?

[David S]

Looks like there's a lot of misinformation about what the Constitution says. I'll clear things up a bit. I'll preface these remarks by saying that most of the arguments I'll make are no longer applicable as per previous judicial shredding of the constitution.

1. The argument that the 5th amendment doesn't apply to the states is absurd. While most amendments deal with the powers of the government, the language of the amendment makes it perfectly clear that it deals only with the right of the individual. The rights listed in the 5th amendment are rights that all people have and cannot be deprived of by any level of government, federal, state, county, or local. If the amendment in question were the 1st amendment, which is clearly prefaced with "Congress shall make no law regarding...", I would be forced to agree with A18 that the amendment doesn't apply to the states (in fact, Massachusetts had a state church well into the 19th century).

2. However, the key passage in amendment 5 is "nor shall private property be taken for public use, without just compensation." One could argue that in this case, the property was being taken for private use rather than public, and is thus not under the jurisdiction of the 5th amendment. The only answer to this argument is that the right is found in the 9th amendments "other [rights] retained by the people." I'm inclined to agree that the right is found in the 9th amendment, otherwise common standards of justice would be set back several centuries.

You can download the Courts opinion from the Institute for Justice’s website at http://www.ij.org/private_property/connecticut/
Clarence Thomas’ opinion answers your second question rather nicely I think. Unfortunately it is in pdf format so I cannot cut and paste it, but if you want to see it it’s on page 42 of that document.

[A18]

1. The argument that the 5th amendment doesn't apply to the states is absurd. While most amendments deal with the powers of the government, the language of the amendment makes it perfectly clear that it deals only with the right of the individual. The rights listed in the 5th amendment are rights that all people have and cannot be deprived of by any level of government, federal, state, county, or local. If the amendment in question were the 1st amendment, which is clearly prefaced with "Congress shall make no law regarding...", I would be forced to agree with A18 that the amendment doesn't apply to the states (in fact, Massachusetts had a state church well into the 19th century).

Look, you can make stuff up all you want, but the fact of the matter is that the fifth amendment does not and has never been applicable to the states by its own capacity. These are rights individuals have, yes—against the federal government.

The Supreme Court has said as much. Ignore Barron v. Baltimore at your pleasure.

[A18]

Boy you really want to dig up the whole cemetery don't you. There is an old adage: "Be careful what you wish for."  Before you ditch the protections of the Bill of Rights you might want to consider; Does your state constitution provide all of the protections you are ready to throw away? Does it say you have a right to own guns? or that a search warrant must be obtained to search your home? or that you cannot be forced to testify against yourself? or that you have a right to a jury trial if you are accused of a crime? Or that the state cannot prosecute you over and over again for the same crime until they get a conviction? Does it protect you from cruel and unusual punishment?

Actually, it does all that and more. http://legis.state.va.us/Laws/search/Constitution.htm#1S1

[A18]

2. However, the key passage in amendment 5 is "nor shall private property be taken for public use, without just compensation." One could argue that in this case, the property was being taken for private use rather than public, and is thus not under the jurisdiction of the 5th amendment. The only answer to this argument is that the right is found in the 9th amendments "other [rights] retained by the people." I'm inclined to agree that the right is found in the 9th amendment, otherwise common standards of justice would be set back several centuries.

No, that's absurd. The ninth amendment is a rule of construction, ensuring that the federal government has only the powers enumerated.

It was a response to Hamilton's argument that a bill of rights would be dangerous:

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the Barons, sword in hand, from king John....It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. 'We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.'

Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government....I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

Why does the fifth amendment's takings clause refer only to public use? I suppose because everything the federal government is allowed to involve itself in is public.

[A18]

I would argue that most of the Bill of Rights does apply to the states as well as the federal government. The 1st amendment says; "Congress shall make no law..."  Congress specifically applies to the legislative branch of the federal government. So the First Amendment is clearly aimed at the federal government. But the 5th amendment contains no such qualifier. It protects property rights from all governments.

Article I, Section 9.
Clause 3: No Bill of Attainder or ex post facto Law shall be passed.

Article I, Section 10.
Clause 1: No State shall ... pass any Bill of Attainder, ex post facto Law, or ...

[J. J.]

Has a Supreme Court Justice ever been impeached before?

Yes, Samuel Chase was impeached and tried before the Senate in 1804, with Arron Burr in the chair.  It was said that, "The judge appeared before the murderer."

While judges hold office, "for a term of good behavure," Federal District Court Judge Alcee Hastings was removed in 1989 even though he had been aquitted in court.  He is now a member of the US House (D, FL-23).