Is the Constitution too Confusing?

[Granite]

In my personal opinion... because....


It is "the action of calling something to the attention of the public especially by paid announcements"

http://itlaw.wikia.com/wiki/"Central_Hudson"_test

Doesn't look like the case you cited has anything to do whatsoever with panhandling.

So actually in this situation the prosecutor may have had a point but certainly didn't articulate himself well.

 

[CabinetMaker]

Then why do corporations cite the 1st Amendment for advertising purposes?

A mis-aplication of the principle. We need to stop and ask ourselves WHY the Founding Fathers wrote in a protection for speech. What was going on in their world at the time they wrote the Bill of Rights? What kind of speech was threatened?

Since that time, we have managed to twist and distort our rights in ways I'm sure the Founding Fathers would be surprised and dismayed at.

 

[1PeaceMaker]

http://itlaw.wikia.com/wiki/"Central_Hudson"_test

Doesn't look like the case you cited has anything to do whatsoever with panhandling.

Doesn't matter. The principle applies to any protected speech. Panhandling is protected unless it's done in such a way it won't threaten and interfere with the liberty of others.

So actually in this situation the prosecutor may have had a point but certainly didn't articulate himself well.

Why would he have a point?

 

[1PeaceMaker]

https://www.aclu.org/keep-america-s...-notice-laws-banning-peaceful-panhandling-are

DETROIT – The American Civil Liberties Union of Michigan today sent letters to 84 municipalities across the state notifying them that anti-begging ordinances on their books are unconstitutional and should be repealed. The ordinances are nearly identical to the Michigan law struck down in August by the Court of Appeals for unconstitutionally preventing peaceful panhandling in all public places.

 

[Granite]

Doesn't matter. The principle applies to any protected speech. Panhandling is protected unless it's done in such a way it won't threaten and interfere with the liberty of others.

Except the case you cited only defended commercial speech. So, no, in this case, it doesn't apply.

Why would he have a point?

Because, again, if the statute on the books protects speech but prohibits panhandling, it's his job to enforce the law, not ignore it.

 

[1PeaceMaker]

Commercial speech.​

Commercial speech receives less First Amendment protection than does noncommercial speech.43 Although commercial speech normally involves the sale of goods and services, the Supreme Court has on one occasion defined it more broadly as “expression related solely to the economic interests of the speaker and its audience.”44 Since panhandling relates solely to a proposed transfer of money from the listener to the speaker, it would seem to fit this definition. The argument to the contrary is based on a series of cases holding that charitable solicitation is not commer- cial where it is “intertwined” with advocacy.45 Whether panhan- dling is commercial speech is at present an unresolved question.
Commercial speech which is unlawful or misleading can be banned outright.46 There is no First Amendment problem with criminalizing false or misleading representations by panhandlers. Indeed, such conduct constitutes the well-established crime of theft by false pretenses.47

Other commercial speech may be limited so long as the government has a substantial interest which is directly advanced by the regulation, and the regulation is no broader than necessary. This test differs from the time, place, or manner and expressive conduct tests in that the regulation may go directly to the content of the speech.

43. Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978).
44. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U. S. 557, 561 (1980).
45. Schaumburg, note 24; Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947 (1984); Riley v. National Federation of Blind of N.C., Inc., 487 U. S. 781 (1988).
46. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771-772 (1976); San Francisco Arts & Athletics v. U.S. Olympic Committee, 483 U. S. 522, 535, n. 12 (1987).
47. See 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.7, at 382-383 (1986).

www.cjlf.org/publications/RegulatePanhandling.pdf

 

[rexlunae]

http://truthvoice.com/2015/03/ohio-judge-there-will-be-no-mentioning-of-the-constitution-here/



The prosecutor's reason was that the constitution would confuse the jury! :dizzy:

Tell me it aint so....

:help:

Sounds perfectly reasonable to me.

In most US courts, the judge rules on matters of laws, and the jury establishes the facts. Talking about the law to the jury is, essentially, asking them to do the judge's job. Since juries may not understand this relationship, and since they are not made up of people whose professional training is to know how to interpret the law, talking to the jury about the law instead of the facts is, at best, non sequitur. And yes, potentially confusing. There will be plenty of time to make legal arguments about the law to the judge, and if necessary, through the appeals process.

 

[rexlunae]

Juries are generally seated to decide matters of law, not the constitutionality of specific laws.

That's actually not true. Juries are seated to determine the facts of the case. Ruling on the law is almost always exclusively the function of the judge. The judge may incorporate language from the law in his directions to the jury, but his job is to decide what law applies and what doesn't and to package that for the jury to minimize their need to interpret it. If there is no dispute as to the facts, but just a dispute about the application of the law, a jury may not even be convened, although a defendant may have a right to insist on a jury trial.

 

[1PeaceMaker]

Sounds perfectly reasonable to me.

In most US courts, the judge rules on matters of laws, and the jury establishes the facts. Talking about the law to the jury is, essentially, asking them to do the judge's job. Since juries may not understand this relationship, and since they are not made up of people whose professional training is to know how to interpret the law, talking to the jury about the law instead of the facts is, at best, non sequitur. And yes, potentially confusing. There will be plenty of time to make legal arguments about the law to the judge, and if necessary, through the appeals process.

The judge should not usurp the role of a jury when such a trial is called for.

Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury believe the defendant to be guilty of the charges. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. A jury can similarly convict a defendant on the ground of disagreement with an existing law, even if no law is broken (although in jurisdictions with double jeopardy rules, a conviction can be overturned on appeal, but an acquittal cannot).[/QUOTE]http://en.wikipedia.org/wiki/Jury_nullification

I dispute that it is essential to the defense of liberty in a fluctuating legal environment.

 

[rexlunae]

The judge should not usurp the role of a jury when such a trial is called for.

http://en.wikipedia.org/wiki/Jury_nullification[/url]

I dispute that it is essential to the defense of liberty in a fluctuating legal environment.

You realize that jury nullification isn't an intentional feature of the system, right? It's essentially a consequence of the fact that juries are generally immune from any consequences arising from their verdicts. Which means that, the judge can instruct you as much as he or she wants, and they will, but a jury or an individual juror can simply choose to ignore the law (or, more rightly, the judge's instructions) and there's pretty much nothing anyone can do about it.

 

[1PeaceMaker]

Jury nullification helped to end alcohol prohibition. It's clear the State doesn't care for this power. But I believe it corrects judicial evils.

Juries clearly have the power to nullify; whether they also have the right to nullify is another question. Once a jury returns a verdict of "Not Guilty," that verdict cannot be questioned by any court and the "double jeopardy" clause of the Constitution prohibits a retrial on the same charge.
Early in our history, judges often informed jurors of their nullification right. For example, our first Chief Justice, John Jay, told jurors: "You have a right to take upon yourselves to judge [both the facts and law]." In 1805, one of the charges against Justice Samuel Chase in his impeachment trial was that he wrongly prevented an attorney from arguing to a jury that the law should not be followed.

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney's request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.

 

[PureX]

It would be up to the judge to clarify for the jurors what the legal issues in the case, are. And it's also up to the judge to keep the adversarial parties on point, legally speaking. So yes, it would completely within the responsibility of the judge to declare any point of legal argument in or out of the bounds of the specific case at hand.

As to whether the average citizen can understand the Constitution, the answer is both yes and no. In that they will understand it minimally, and with bias. The way most people understand most things.

 

[1PeaceMaker]

It would be up to the judge to clarify for the jurors what the legal issues in the case, are.

Ruling out matters of constitutionality was an end-run around a journalist/activist's activity, which was a matter of free speech. He was contesting the law in practice by using his free speech rights and documenting the protest.

And it's also up to the judge to keep the adversarial parties on point, legally speaking.

We need judicial reform. The judges in this day and age have strayed from the spirit of the first Chief Justice of America.

So yes, it would completely within the responsibility of the judge to declare any point of legal argument in or out of the bounds of the specific case at hand.

But according to the founding fathers, including the first Chief Justice, the point of a jury is to judge both people and law.

As to whether the average citizen can understand the Constitution, the answer is both yes and no. In that they will understand it minimally, and with bias. The way most people understand most things.

Then you can't expect better judgment from the government the People oversee.

 

[PureX]

Ruling out matters of constitutionality was an end-run around a journalist/activist's activity, which was a matter of free speech. He was contesting the law in practice by using his free speech rights and documenting the protest.

The courtroom is not the place for that.

We need judicial reform. The judges in this day and age have strayed from the spirit of the first Chief Justice of America.

Everything about America is different, now. We can't and aren't going back to some idealized fantasy of 'yesteryear'. From what I see of the courts in my area what we need to reform is our process for choosing judges, and we need a little better judicial oversight. What we don't need is every Tom, Dick, and Harry trying to rewrite the Constitution every time he doesn't like a judge's decision.

But according to the founding fathers, including the first Chief Justice, the point of a jury is to judge both people and law.

Again, we're not going to go back to some romanticized vision of yesteryear. We are a nation of 330 million people, now. And most of those people are idiots who can't follow the laws that we have, let alone understand why we have them.

Then you can't expect better judgment from the government the People oversee.

No, and we clearly are not getting it.

 

[1PeaceMaker]

The courtroom is not the place for that.
Everything about America is different, now. We can't and aren't going back to some idealized fantasy of 'yesteryear'. From what I see of the courts in my area what we need to reform is our process for choosing judges, and we need a little better judicial oversight. What we don't need is every Tom, Dick, and Harry trying to rewrite the Constitution every time he doesn't like a judge's decision.
Again, we're not going to go back to some romanticized vision of yesteryear. We are a nation of 330 million people, now. And most of those people are idiots who can't follow the laws that we have, let alone understand why we have them.
No, and we clearly are not getting it.

Do you want rule by oligarchy?

 

[PureX]

Do you want rule by oligarchy?

It doesn't appear to be about what I want. We have rule by oligarchy, now, because there are too many of us and we are too ignorant and selfish to maintain control over our own government. So the oligarchs have already taken over, and are already running things. Which is why we are all being slowly and inextricably enslaved by an economy that's designed to benefit the very wealthy.

The Constitution is powerless. The founders are dead. And we've lost control of both ourselves and our government. I hate to tell you, friend, but we're doomed. The oligarchs have already won.

 

[TomO]

PureX

 

[Truster]

He might have meant to say that the people living under the constitution are confused?

 

[1PeaceMaker]

Juries work, just like they did during prohibition.

http://www.sun-sentinel.com/local/b...uana-medical-need-verdict-20150302-story.html