Qualification: we do imprison those accused of international terrorism (e.g., the detainees at Guantanamo Bay) and other offenses involving certain national security interests (I'm thinking of Bradley Manning) without trial. While this is extremely serious (and, in my view, an embarrassing betrayal of our constitutional values), it is not at all a common phenomenon and not one generalizable to "ordinary" American criminal law. It also seems not to be the sort of thing you had in mind when you wrote "If the DA charges me with a crime whose maximum sentence is 5 months in prison, I'll be told I can't have a jury decide on the case" and "I could be charged with 300 consecutive 1 month sentences without being entitled to a jury trial."
What you say about criminal trials without a jury is emphatically not true. It may be that the large majority of criminal defendants are persuaded to waive a jury trial and plead guilty, but I am unaware of any case where someone has been deprived of one against their will, and I would be shocked if you could cite me a single case where such a thing has happened. Can you?
As I've mentioned here before, I work for a federal court and we are very very scrupulous about informing defendants of this right before they are even allowed to plead guilty and there is no situation I know of where a jury trial could be withheld from someone in a criminal suit. It's possible that the occasional crazy state court judge gets this wrong, but it is blatantly illegal. And not just in the abstract "wouldn't it be nice if the constitution were enforced" kind of way, but a very real, practical "if you appeal your conviction will definitely be thrown out" kind of way.
It's not from the constitution, but it is a distinction that predates the constitution in Anglo-American law. You can see some hint of it in the Seventh Amendment (which is the amendment you need in this case anyway):
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
So, the short answer is that it isn't in the constitution, but it was the traditional role of a jury as it was understood by the founders.
Ah. I just answered my own question (or, rather, the 11th circuit did):
Finally, under 28 U.S.C. 2347, we may: (1) remand a proceeding to an agency to hold a hearing where one is required by law, (2) transfer certain cases to a district court, or (3) order an agency to take additional evidence and counterevidence. Id. 2347(b)(1), (3), (c).
0) It's ok... I don't accept legal advice from strangers anyway.;)
That is an excellent policy. Have you done any research about the procedures a Circuit Court will/would use in answering a factual question like the one you point out?
Hi there, thanks for replying. I am a lawyer, so I should probably refrain from commenting on the merits of your case too specifically for fear of accidentally giving "legal advice."
I'll just say/ask these few things:
1) It remains the case that the matter on appeal to the Supreme Court was the jurisdictional question, not the merits of your complaint (and the complaints of many others) against the TSA.
2) Regardless of what court you brought suit in, it was always going to be a judge who resolved legal questions like, say, whether TSA's procedures were unconstitutional. A jury would only be tasked with factual questions like figuring out, if it were disputed, what TSA's procedures actually were.
3) Do you have plans to refile in the 6th or DC Circuit?
4) Good luck on your lawsuit.
(It goes without saying, but I'll say it anyway: I am a lawyer, but I am not your lawyer. I know not nearly enough about you or your case to provide you advice that you could rely on. I am also not admitted to the bar in your jurisdiction so I couldn't be your lawyer even if I wanted to.)
From what I've read, there's really nothing to see here. The original suit was dismissed because it was filed in the wrong court. It was filed in FL district court when the law requires that it be brought before the DC Circuit or the circuit in which he resides (he resides in Michigan). But instead of just bringing his suit in the correct court, he has simply appealed the dismissal all the way up to the supreme court. Of course SCOTUS didn't take it; the lower courts were obviously correct.
The students do not live in the city. They live in a village. They will move from the village to the city where the call center is located once they learn how to type. I imagine there is much less trouble getting a reliable supply of electricity in the city. The call center also, presumably, has a larger budget.
I should have added: the subset of those people who owned iPhone 4Ses were very stupid. If you don't regularly use an iPhone 4S, then it's not so strange that you think an iPhone 4S is fast shiny and new. And it certainly doesn't say anything about the "mindset of Apple's userbase" if the people interviewed weren't iPhone users.
And if I'm reading the other comments here correctly, nobody so much as alleges that this leaves more than a single very stupid person identified by Jimmy Kimmel.
Ever wonder what percentage of people they interviewed actually made it on TV? It's hard to draw general conclusions from a handful of people saying stupid things on TV when saying that very stupid thing was required to get on television. Still: there is no doubt that those were some very stupid people.
Please show me the US case where someone has been thrown in jail for downloading music or videos. (Except, of course, videos that are criminal to own, like child porn.)
Yes, but the question raised was whether the second amendment prohibits the government from requiring the registration of firearms. It doesn't, and nothing you've said changes that.
There is, of course, always a further question as to whether the government has the power to make the law -- you'd have to find an affirmative grant of regulatory power in Art I or elsewhere, as you do with every other federal law. Most of these laws are passed pursuant to the Commerce Clause, as I'm sure you know. That's why the law at issue here, the Gun Control Act, by its terms only applies to guns that travel in interstate commerce.
Then again, I'm also pretty sure I can imagine how you feel about that justification.
Well, two of the three authors I recommended are ardent textualists who favor restricting government power so I don't see how you can claim I'm dismissing your guy because he's an originalist.
Also: you still have not responded to a word of my own textualist arguments. Still waiting.
If you want to have a real debate about originalism, let's start with this:
1) The text of the constitution s vague. There is no disputing this. On some points it is very specific, but on most it is not. I the world hadn't changed over the last 200 years, we probably could just study the founders' texts to see what they had in mind. (Though I have other reasons for thinking this isn't the way to go, as you'll see.) but, in fact, most of the contemporary issues in constitutional law are novel by definition. Think about cellphone GPS tracking. Do the words "unreasonable," "search," and "seizure" tell us anything informative about how to answer this legal question? No. And there was little in the founders' world that tells us what they would have thought about the issue.
2) A lot of originalists, I sense you might be one, like originalism because it appeals to the ideal that people should be governed by consent. This is an ideal I share, of course. The problem is that nobody alive today voted, or voted for anyone who voted to ratify the Constitution. Not even close. If our interpretation of the text is allowed to evolve to keep pace with contemporary values, then the constitution still has a claim to democratic legitimacy. But if the constitution is rigidly tied to the opinions of rich white men living in the 18th century, then we have a fundamental failure of democratic legitimacy on our hands. True, we have an amendment process, but it is widely acknowledged that the process it provides has been all but politically impossible for the last 100 years due to changes in our country's political dynamics. We can fix this while still restraining government by developing a more sensitive methodology for interpreting the constitutional text in a way that sticks as close as possible to its literal meaning while taking evolving public norms into account.
3) If you're planning to say "but the founders intended that we interpret the constitution as they intended it to mean," or something like that, restrain yourself. It begs the question.
Also: it's true. lots of people graduate law school without learning much about constitutional theory. I'm not one of them; Constitutional Theory is most of what I spent my three years studying.
And what of my actual quotations from the text of the constitution explicitly providing for delegation of some powers to the executive?
And, yes, I am aware there are a lot of books out there on the subject -- I spent several thousands of dollars on them in my three years of law school. The one you have read is, just that: one of very many (and, I might add, one of the less respected constitutional scholars out there). Read the works of constitutional scholars such as Bruce Ackerman, Lawrence Tribe, and Akhil Amar. Each of them have written several relevant books and numerous articles (some of which you could find through googling, if you like). They won't all uniformly support my position or yours, but some of them do and everything any of those three people have written is worth reading if you're interested in actually thinking carefully about constitutional law and not just pushing a political agenda disguised as constitutional interpretation.
The delegation you are looking for occurs in the first sentence of Art. II Sec. 1 which vests the executive power in the President (pursuant to whose authority the various administrative departments such as the FCC act -- executive departments are expressly contemplated by Art II. Sec. II) and directs him to take care that the laws be faithfully executed (Art II Sec III). There has been a running legal debate about what counts as a legitimate exercise of executive power since at least the 1920s and, accordingly, what sort of powers congress can delegate. The quick synopsis is that there are only very loose limits on what counts as executive, as opposed to legislative power. To the extent there is a limit, it is just that Congress must "delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."(Mistretta) The high water mark for these limitations was set in Schechter Poultry way back in 1935, and it has really only eroded since.
Of course, we can continue debating what is appropriate to delegate and what isn't. But please bear in mind that you, dear slashdotter, are far from the first intelligent mind to realize that there are limits on what Congress can delegate and attempt to draw a limit. There is a huge literature on the subject out there ripe for Googling. The ambguity in such an exercise is one of the reasons why some (myself included) don't think that close textual scrutiny of a document written over 200 years ago is the right way to go about answering these questions (or, at least, not the only proper consideration). It has the great disadvantage of being an inquiry totally divorced from our modern ways of living and without the supposed benefit of providing clear limits or guidance.
Yep. And in this case the bill you're looking for was passed in 1994: Pub. L. No. 104-104, 110 Stat. 56 (1996) codified at 47 U.S.C. 254(d).
Every telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service. The Commission may exempt a carrier or class of carriers from this requirement if the carrier's telecommunications activities are limited to such an extent that the level of such carrier's contribution to the preservation and advancement of universal service would be de minimis. Any other provider of interstate telecommunications may be required to contribute to the preservation and advancement of universal service if the public interest so requires.
Slashdot Mirror
Qualification: we do imprison those accused of international terrorism (e.g., the detainees at Guantanamo Bay) and other offenses involving certain national security interests (I'm thinking of Bradley Manning) without trial. While this is extremely serious (and, in my view, an embarrassing betrayal of our constitutional values), it is not at all a common phenomenon and not one generalizable to "ordinary" American criminal law. It also seems not to be the sort of thing you had in mind when you wrote "If the DA charges me with a crime whose maximum sentence is 5 months in prison, I'll be told I can't have a jury decide on the case" and "I could be charged with 300 consecutive 1 month sentences without being entitled to a jury trial."
What you say about criminal trials without a jury is emphatically not true. It may be that the large majority of criminal defendants are persuaded to waive a jury trial and plead guilty, but I am unaware of any case where someone has been deprived of one against their will, and I would be shocked if you could cite me a single case where such a thing has happened. Can you?
As I've mentioned here before, I work for a federal court and we are very very scrupulous about informing defendants of this right before they are even allowed to plead guilty and there is no situation I know of where a jury trial could be withheld from someone in a criminal suit. It's possible that the occasional crazy state court judge gets this wrong, but it is blatantly illegal. And not just in the abstract "wouldn't it be nice if the constitution were enforced" kind of way, but a very real, practical "if you appeal your conviction will definitely be thrown out" kind of way.
It's not from the constitution, but it is a distinction that predates the constitution in Anglo-American law. You can see some hint of it in the Seventh Amendment (which is the amendment you need in this case anyway):
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
So, the short answer is that it isn't in the constitution, but it was the traditional role of a jury as it was understood by the founders.
Ah. I just answered my own question (or, rather, the 11th circuit did):
Finally, under 28 U.S.C. 2347, we may: (1) remand a proceeding to an agency to hold a hearing where one is required by law, (2) transfer certain cases to a district court, or (3) order an agency to take additional evidence and counterevidence. Id. 2347(b)(1), (3), (c).
0) It's ok... I don't accept legal advice from strangers anyway. ;)
That is an excellent policy. Have you done any research about the procedures a Circuit Court will/would use in answering a factual question like the one you point out?
Hi there, thanks for replying. I am a lawyer, so I should probably refrain from commenting on the merits of your case too specifically for fear of accidentally giving "legal advice."
I'll just say/ask these few things:
1) It remains the case that the matter on appeal to the Supreme Court was the jurisdictional question, not the merits of your complaint (and the complaints of many others) against the TSA.
2) Regardless of what court you brought suit in, it was always going to be a judge who resolved legal questions like, say, whether TSA's procedures were unconstitutional. A jury would only be tasked with factual questions like figuring out, if it were disputed, what TSA's procedures actually were.
3) Do you have plans to refile in the 6th or DC Circuit?
4) Good luck on your lawsuit.
(It goes without saying, but I'll say it anyway: I am a lawyer, but I am not your lawyer. I know not nearly enough about you or your case to provide you advice that you could rely on. I am also not admitted to the bar in your jurisdiction so I couldn't be your lawyer even if I wanted to.)
You are correct. There is nothing more to it than that. The case number (on appeal to the 11th Circuit, at least) appears to be 11-cv-12426. Here is the 11th Circuit's opinion itself which makes things pretty clear: http://law.justia.com/cases/federal/appellate-courts/ca11/11-12426/11-12426-2012-02-27.html
From what I've read, there's really nothing to see here. The original suit was dismissed because it was filed in the wrong court. It was filed in FL district court when the law requires that it be brought before the DC Circuit or the circuit in which he resides (he resides in Michigan). But instead of just bringing his suit in the correct court, he has simply appealed the dismissal all the way up to the supreme court. Of course SCOTUS didn't take it; the lower courts were obviously correct.
The students do not live in the city. They live in a village. They will move from the village to the city where the call center is located once they learn how to type. I imagine there is much less trouble getting a reliable supply of electricity in the city. The call center also, presumably, has a larger budget.
Read to the end of the summary: he has considered typewriters but does not think he can find them in adequate supply.
I should have added: the subset of those people who owned iPhone 4Ses were very stupid. If you don't regularly use an iPhone 4S, then it's not so strange that you think an iPhone 4S is fast shiny and new. And it certainly doesn't say anything about the "mindset of Apple's userbase" if the people interviewed weren't iPhone users.
And if I'm reading the other comments here correctly, nobody so much as alleges that this leaves more than a single very stupid person identified by Jimmy Kimmel.
Ever wonder what percentage of people they interviewed actually made it on TV? It's hard to draw general conclusions from a handful of people saying stupid things on TV when saying that very stupid thing was required to get on television. Still: there is no doubt that those were some very stupid people.
You must have never watched Chinese television.
Please show me the US case where someone has been thrown in jail for downloading music or videos. (Except, of course, videos that are criminal to own, like child porn.)
Yes, but the question raised was whether the second amendment prohibits the government from requiring the registration of firearms. It doesn't, and nothing you've said changes that.
There is, of course, always a further question as to whether the government has the power to make the law -- you'd have to find an affirmative grant of regulatory power in Art I or elsewhere, as you do with every other federal law. Most of these laws are passed pursuant to the Commerce Clause, as I'm sure you know. That's why the law at issue here, the Gun Control Act, by its terms only applies to guns that travel in interstate commerce.
Then again, I'm also pretty sure I can imagine how you feel about that justification.
I also don't see the part where the Second Amendment says you can own whatever sort of weapon you want free from any regulations whatsoever.
You do know that Steve Jobs is no longer the CEO of Apple, right? In fact, I hear he might be dead.
What if I told you that Samsung has also sued its competitors for patent infringement?
Interesting. Thanks.
So is there something wrong with the study that you (or anyone else) can identify, or is this just presumptive cynicism?
Yes, because we all know that the American Academy of Pediatrics is in the pocket of Big Circumcision.
Well, two of the three authors I recommended are ardent textualists who favor restricting government power so I don't see how you can claim I'm dismissing your guy because he's an originalist.
Also: you still have not responded to a word of my own textualist arguments. Still waiting.
If you want to have a real debate about originalism, let's start with this:
1) The text of the constitution s vague. There is no disputing this. On some points it is very specific, but on most it is not. I the world hadn't changed over the last 200 years, we probably could just study the founders' texts to see what they had in mind. (Though I have other reasons for thinking this isn't the way to go, as you'll see.) but, in fact, most of the contemporary issues in constitutional law are novel by definition. Think about cellphone GPS tracking. Do the words "unreasonable," "search," and "seizure" tell us anything informative about how to answer this legal question? No. And there was little in the founders' world that tells us what they would have thought about the issue.
2) A lot of originalists, I sense you might be one, like originalism because it appeals to the ideal that people should be governed by consent. This is an ideal I share, of course. The problem is that nobody alive today voted, or voted for anyone who voted to ratify the Constitution. Not even close. If our interpretation of the text is allowed to evolve to keep pace with contemporary values, then the constitution still has a claim to democratic legitimacy. But if the constitution is rigidly tied to the opinions of rich white men living in the 18th century, then we have a fundamental failure of democratic legitimacy on our hands. True, we have an amendment process, but it is widely acknowledged that the process it provides has been all but politically impossible for the last 100 years due to changes in our country's political dynamics. We can fix this while still restraining government by developing a more sensitive methodology for interpreting the constitutional text in a way that sticks as close as possible to its literal meaning while taking evolving public norms into account.
3) If you're planning to say "but the founders intended that we interpret the constitution as they intended it to mean," or something like that, restrain yourself. It begs the question.
Also: it's true. lots of people graduate law school without learning much about constitutional theory. I'm not one of them; Constitutional Theory is most of what I spent my three years studying.
And what of my actual quotations from the text of the constitution explicitly providing for delegation of some powers to the executive?
And, yes, I am aware there are a lot of books out there on the subject -- I spent several thousands of dollars on them in my three years of law school. The one you have read is, just that: one of very many (and, I might add, one of the less respected constitutional scholars out there). Read the works of constitutional scholars such as Bruce Ackerman, Lawrence Tribe, and Akhil Amar. Each of them have written several relevant books and numerous articles (some of which you could find through googling, if you like). They won't all uniformly support my position or yours, but some of them do and everything any of those three people have written is worth reading if you're interested in actually thinking carefully about constitutional law and not just pushing a political agenda disguised as constitutional interpretation.
The delegation you are looking for occurs in the first sentence of Art. II Sec. 1 which vests the executive power in the President (pursuant to whose authority the various administrative departments such as the FCC act -- executive departments are expressly contemplated by Art II. Sec. II) and directs him to take care that the laws be faithfully executed (Art II Sec III). There has been a running legal debate about what counts as a legitimate exercise of executive power since at least the 1920s and, accordingly, what sort of powers congress can delegate. The quick synopsis is that there are only very loose limits on what counts as executive, as opposed to legislative power. To the extent there is a limit, it is just that Congress must "delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."(Mistretta) The high water mark for these limitations was set in Schechter Poultry way back in 1935, and it has really only eroded since.
Of course, we can continue debating what is appropriate to delegate and what isn't. But please bear in mind that you, dear slashdotter, are far from the first intelligent mind to realize that there are limits on what Congress can delegate and attempt to draw a limit. There is a huge literature on the subject out there ripe for Googling. The ambguity in such an exercise is one of the reasons why some (myself included) don't think that close textual scrutiny of a document written over 200 years ago is the right way to go about answering these questions (or, at least, not the only proper consideration). It has the great disadvantage of being an inquiry totally divorced from our modern ways of living and without the supposed benefit of providing clear limits or guidance.
Yep. And in this case the bill you're looking for was passed in 1994: Pub. L. No. 104-104, 110 Stat. 56 (1996) codified at 47 U.S.C. 254(d).
Every telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service. The Commission may exempt a carrier or class of carriers from this requirement if the carrier's telecommunications activities are limited to such an extent that the level of such carrier's contribution to the preservation and advancement of universal service would be de minimis. Any other provider of interstate telecommunications may be required to contribute to the preservation and advancement of universal service if the public interest so requires.