Senate nominee O'Donnell asks whether Constitution prohibits establishment of religion

[elmcitymaven 9,712]

Considering Australia's legal system is modeled directly from the UK, with the House of Lords even making decisions up until the 60's, I will have to disagree. The scenarios you are describing are ones where the court does get to rule. However, the House of Lords or High Court does not get to be commander and chief of the country, as they do so frequently here. The parliament does not need to wait nor run their every decision through the judicial system. Our elected federal ministers have the authority to amend and enact laws [democratically] as they deem necessary.

I think you and I may be talking at cross-purposes here. I'm talking about day-to-day running of the state (for example, how do we determine if a particular form of easement exists over a stretch of land, just as one possible daily conundrum) that will be decided with reference to case law and convention and without intervention of the courts. There are lacunae -- TONS of them -- in the black letter laws of the various nations of the UK (I only know about England and Wales; what little Scottish and NI law I know is limited to land law). Case law does the trick. Hope that clarifies what I'm talking about.

And just to extend your point, both the US and the UK refer back to common law to make decisions, when not contradicted by written law.

Yup. This too.

[Mr. Big Dog 10,747]

So you have plenty of cases from Germany where things like health care is debated on the merits of whether it is Constitutional or not?

That is indeed the function of the court. The court has that function even on constitutional amendments - it's in that sense much more far reaching than the US Supreme Court.

The sole task of the court is judicial review. It may therefore declare public acts unconstitutional and thus render them ineffective. As such, it is similar to the Supreme Court of the United States.

...

Its jurisdiction is focused on constitutional issues, the integrity of the Grundgesetz and the immediate compliance of any governmental institution in any detail (article 1 subsection 3 of the Grundgesetz). Even constitutional amendments or changes passed by the Parliament are subject to its judicial review, since they have to be compatible with the most basic principles of the Grundgesetz (due to its Article 79 (III), the so called 'eternity clause').

[Heracles 417]

That is indeed the function of the court. The court has that function even on constitutional amendments - it's in that sense much more far reaching than the US Supreme Court.

Not to sure about Germany but the parliament in AUS or the UK can ratify any law or amendment and override a high court [supreme court] ruling. Constitutional changes do not need judicial approval in AUS. The courts are supposed to represent the people and interpret the law by the people, they are not some independent rogue body. This allows them to remove any ambiguity and ensure the same types of arguments regarding technicalities are avoided.

The American people should all be able to vote and determine once and for all, what these amendments actually mean. Considering there is some bizarre ambiguity regarding what congress shall pass no law refers to.

Edited October 20, 2010 by Heracles

[Heracles 417]

I am not surprised so many on the left here prefer judicial governance, where the citizens have no say. After all, its how the ALCU gets to dictate how I live.

The courts have become the liberal tool of choice to circumvent and override democracy. Classic case of find a judge who shares our views, rule accordingly to shove it down our throats or face prison. Sound familiar to anyone else?

Damn straight I am going to mention AUS Rob, as it least over there I have a say in how my country functions. You know, We the People and all that good stuff.

Edited October 20, 2010 by Heracles

[Mr. Big Dog 10,747]

Not to sure about Germany but the parliament in AUS or the UK can ratify any law or amendment and override a high court [supreme court] ruling. Constitutional changes do not need judicial approval in AUS. The courts are supposed to represent the people and interpret the law by the people, they are not some independent rogue body.

The framers of the post WWII Constitution thought it beneficial - based on German historical experience - to include an "eternity clause" into it which cements certain basic principles that are not up for debate or change. The eternity clause reads:

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

So, the structure of a federal republic and the following provisions are here to stay.

Article 1

• The dignity of man is inviolable. To respect and protect it is the duty of all state authority.
  
• The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
  
• The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law.
  

Article 20

• The Federal Republic of Germany is a democratic and social Federal state.
  
• All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
  
• Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
  

The Constitutional Court is taked to ensure that any change to the Consitution does not violate the eternity clause.

[I AM NOT THAT GUY 5,715]

The framers of the post WWII Constitution thought it beneficial - based on German historical experience - to include an "eternity clause" into it which cements certain basic principles that are not up for debate or change. The eternity clause reads:

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.

So, the structure of a federal republic and the following provisions are here to stay.

Article 1

• The dignity of man is inviolable. To respect and protect it is the duty of all state authority.
  
• The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
  
• The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law.
  

Article 20

• The Federal Republic of Germany is a democratic and social Federal state.
  
• All state authority emanates from the people. It is exercised by the people by means of elections and voting and by separate legislative, executive and judicial organs.
  
• Legislation is subject to the constitutional order; the executive and the judiciary are bound by the law.
  

The Constitutional Court is taked to ensure that any change to the Consitution does not violate the eternity clause.

So, the eternity clause would have to be rescinded before any changes could be made to the two aforementioned articles, sort of a double failsafe.

[Bad_Daddy 2,209]

Not to gloat, but I actually had some of the fastest visa processing times on here. Helps when you have connections.

I know what you mean. Not plugging this site, but this site saved me thousands $$$$$.

[Obama 2012 1,714]

What does that even mean? If we don't have first amendment rights in the cities, counties and states we ultimately live in, then we do not have these rights at all. Those rights would be meaningless. Well, unless we happen to be on federal premises. What a load of nonsense!

Not entirely true. It's up to you to petition the Federal government to expand those rights to states/cities. As it stands on the law of the constitution now, it does not...

[Danno 1,228]

Who is arguing against a Christmas tree on the grounds of a public building? No one....straw man argument. Where advocates like the ACLU step in is when a local politician wants to nail the Ten Commandments to the wall of City Hall or place a crucifix in front of a public building. Do you think public officials should be allowed to place a crucifix or the Ten Commandments on public buildings like courthouses and schools?

Speaking of Walls and Crosses, here steve, let this Religious right host take you on a tour of those very public places you think are free of those things.

[Heracles 417]

I know what you mean. Not plugging this site, but this site saved me thousands $$$$$.

Agreed plus I detest lawyers.

Apart from my cousin who is a prosecutor, I want nothing to do with the other relatives that are lawyers.

[one...two...tree 2,762]

Speaking of Walls and Crosses, here steve, let this Religious right host take you on a tour of those very public places you think are free of those things.

Yeah, context is something you RWN's seem to get confuzzled about a lot. I'll repost this again...

Supreme Court splits on Ten Commandments

By Warren Richey, Staff writer of The Christian Science Monitor / June 28, 2005

In a major showdown over the presentation of religious symbols and sacred text on public property, the US Supreme Court has made it somewhat easier for government officials to justify displays like the Ten Commandments.

But at the same time, the nation's highest court put officials on notice that their motives must be clearly secular for such displays to pass constitutional muster.

In two important church-state rulings announced Monday, the high court upheld a Ten Commandments display in Texas, but struck down one in Kentucky.

The rulings came on a busy final day of the US Supreme Court's 2004-2005 term that included no announced retirement by any justice. Many analysts say an announcement could come at any time.

In one Ten Commandments case the court said an outdoor public presentation of the Decalogue among other monuments on the Texas State Capitol grounds in Austin did not amount to an unconstitutional government promotion of religion.

The majority justices said that while the Texas display was an acknowledgment of a sacred religious text by the government, the public exhibit did not cross the line into impermissible proselytizing. The vote in the Texas case was 5 to 4.

Setting the stage for church-state litigationBut the high court reached a different conclusion in a Kentucky case involving a Ten Commandments display on the wall of two county courthouses.

The justices ruled 5 to 4 that public officials were not motivated by a necessary secular purpose in ordering the courthouse display. Instead the majority ruled that government officials in the Kentucky case had acted in a way that sought to advance religion in violation of the separation of church and state.

The swing vote determining the outcome in both cases was Justice Stephen Breyer.

In a concurring opinion in the Texas case, Justice Breyer illustrated how close that case was for him. "The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message," he says.

"The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged," Breyer writes. "Those 40 years suggest more strongly than can any set of formulaic tests that few individuals ... are likely to have understood the monument as amounting ... to a government effort to establish religion."

The First Amendment's establishment clause bars the government from taking actions that promote or endorse religion or a particular religious faith.

Some legal scholars hold the view that the establishment clause requires a strict separation between church and state. They say religion is best protected by minimizing potential government entanglements. Others say strict enforcement of separation can force government into a posture of hostility toward religion and the religious.

The high court has carved out a middle position in this ongoing and increasingly heated debate.

Nonetheless, analysts say the two decisions and the sharp split within the court set the stage for more church-state litigation with increasing focus on the context and history of the display. But ultimately the decisions may provide a road map for officials seeking to defend such displays.

"It leaves us litigating each and every one of these cases individually," says Douglas Laycock, a church-state expert and law professor at the University of Texas Law School. "Everyone can manipulate the facts," he says. "The lesson for state governments is, disguise your purpose."

Erwin Chemerinsky, a Duke University Law School professor who argued the Texas case, said future cases will depend on context and history. If the display is part of a broad presentation of sources of law such as exists at the US Supreme Court, the court will probably uphold it, he says. "But the court is always going to be looking at the purpose of the government action, the context, and history."

'A purpose to favor one faith'The decisions come in two different cases, Van Orden v. Perry, involving a Ten Commandments display on the Texas state capitol grounds in Austin, and McCreary County v. ACLU of Kentucky, involving a sequence of Ten Commandments displays on the walls of two county courthouses.

The Texas case involves a six-foot-tall tombstone-like monument donated to the state 40 years ago by a civic group, the Fraternal Order of Eagles.

Scores of similar monuments were donated to cities and towns across the nation as part of a promotion for Cecil DeMille's epic movie "The Ten Commandments." The monuments were displayed without controversy for decades, but in recent years, a series of legal challenges have been launched to have them removed from public property.

The Kentucky case involves an attempt by McCreary County officials to authorize the display of a framed copy of the Ten Commandments in local courthouses.

After the display triggered a lawsuit by the American Civil Liberties Union, officials responded by surrounding the Commandments with other historic documents mentioning God or raising religious themes. Upon obtaining advice from lawyers, the presentation was changed again, this time to include documents considered to have played a foundational role in the development of American law, including the Ten Commandments.

A federal appeals court upheld the Texas display, but a different appeals court panel struck down as unconstitutional the display in Kentucky.

Writing for the majority in the Kentucky case, Justice David Souter said that government officials had acted with an improper purpose in posting the Ten Commandments in courthouses. "When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality," Souter writes.

"A purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding that liberty and social stability demand a tolerance that respects the religious views of all citizens," he says.

He says the high court is not saying that a sacred text can never be integrated constitutionally into a governmental display on law or history. He cited as an example the frieze in the high court's own courtroom depicting Moses holding tablets with 17 other lawgivers.

The history of Ten Commandments casesPrior to Monday's rulings, the high court had last decided a Ten Commandments case in 1980, when the justices, in a 5-to-4 ruling, struck down a Kentucky law requiring the Decalogue be posted in public school classrooms.

"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," the high court said in 1980. "The Ten Commandments are undeniably sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact."

The Ten Commandments issue was the subject of extensive public debate in 2003 when Alabama Supreme Court Justice Roy Moore refused to obey a federal court order that he remove a 2-1/2 ton Ten Commandments monument he had placed in the rotunda of the state supreme court building. He was removed from office.

That monument is currently on a nationwide tour visiting various churches that support Mr. Moore's cause. It has become a symbol to many religious conservatives of what they view as a concerted campaign to erase any mention of God or religion from the public square in America.

http://www.csmonitor...ml/%28page%29/2

[Danno 1,228]

Yeah, context is something you RWN's seem to get confuzzled about a lot. I'll repost this again...

Well, I don't know, its hard to make "In God we trust" clearly secular.

[Heracles 417]

Yeah, context is something you RWN's seem to get confuzzled about a lot. I'll repost this again...

http://www.csmonitor...ml/%28page%29/2

How about putting this ambiguity up to the test [vote] of the people?

[ready4ONE 5,400]

Typical liberal reading fail. Amendment limits Congress, not religion.

Typical RNW fail as the candidate wants Creationism i.e. Biblical Creationism taught in public school science class. A clear violation of the amendment and one this dandy doubted existed when quoted verbatim.

Back to the drawing board of snappy RNW comebacks for you!

[elmcitymaven 9,712]

Agreed plus I detest lawyers.

But I'm such a NICE person. Plus I don't practice.