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Title: Is Nolu Chan Correct About Supreme Court Being Barred From Issuing Advisory Opinions Under the Constitution?
Source:
libertypost
URL Source: http://www.libertypost.org/cgi-bin/ ... rt.cgi?ArtNum=249820&Disp=1#C1
Published: Dec 19, 2008
Author: Nolu Chan
Post Date: 2008-12-19 18:06:40 by Old Friend
Keywords: None
Views: 164
Comments: 8
[article] I am writing to respectfully ask that the Supreme Court, in its deliberations in the substantive components of any of these cases, provide clarifying language for the American public as to the meaning of the Article II ‘natural born citizen’ requirement to the selection of a President of the United States. ... The Court’s silence on this issue, in my humble opinion, would be more damaging to Americans than making a clear statement, even if the cases are dismissed. All U.S. Federal courts, including SCOTUS, are barred by the Constitution from issuing any advisory opinion. nolu chan posted on 2008-12-19 18:00:08 ET Reply Trace
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#2. To: Old Friend (#0)
If it's nolu_chan; it's no good.
he does some interesting research and is good at finding case law etc. but appears to me to be a total statist.
Yes, he represents THE FERAL KANGAROO SYSTEM very well and ALWAYS sides with Big Government Statism. Very Progressive (which means ?). Diary of a Madman - Dear Diary
The rule about barring advisory opinions dates back to Chief Justice John Jay (upon consultation with the associate justices) responding negatively to an inquiry by President Washington about issuing advisory opinions. In reaffirming the rule, SCOTUS in Flast in 1968 stated explicitly, "Article III, and not history alone, impose[s] the rule against advisory opinions on federal courts." This has been the consistent rule without deviation for over two centuries, proving that the Framers of the Constitution were part of a forward-looking Progressive-Statist Cabal preparing the way for President Barack Obama. As is now clear, this was the original intent of the Framers. At the Constitutional Convention, on August 20, 1787 James Madison offered the following provision for consideration: "Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions." See Farrand's Records of the Federal Convention, Volume 2, page 341. The devious Progressive-Statist Cabal of Framers, foreseeing the events which have only now arisen, corruptly failed to adopt Madison's proposal, initiating a more than two-century old conspiracy. Flast v. Cohen, 392 U.S. 83 (1968) [...] MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. [...] And it is quite clear that "the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions." C. Wright, Federal Courts 34 (1963). [Footnote 14] Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U.S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). [...] The Court quoted Charles Alan Wright, Federal Courts 34 (1963). Footnote 14 of Flast reads: In United States v. Fruehauf, 365 U.S. 146 (1961), SCOTUS said: We do not reach that question on this appeal. For we cannot but regard it -- abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees' motions to dismiss an indictment incontestably valid on its face -- as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests, we have consistently refused to give. See Parker v. Los Angeles County, 338 U.S. 327; Rescue Army v. Municipal Court, 331 U.S. 549; United Public Workers v. Mitchell, 330 U.S. 75; Alabama State Federation of Labor v. McAdory, 325 U.S. 450; Arizona v. California, 283 U.S. 423. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." [Parker v. Los Angeles County, 338 U.S. 327 (1949)] "From Hayburn's Case, 2 Dall. 409, [nc - 2 U.S. 409 (1792)] to Alma Motor Co. v. Timken-Detroit Axle Co. and the Hatch Act case decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. The same policy has been reflected continuously not only in decisions, but also in rules of court and in statutes made applicable to jurisdictional matters, including the necessity for reasonable clarity and definiteness, as well as for timeliness, in raising and presenting constitutional questions. Indeed, perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress. E.g., Judicial Code, §§ 237, 240." [Rescue Army v. Municipal Court, 331 U.S. 549 (1947)] "As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, "concrete legal issues, presented in actual cases, not abstractions," are requisite." [United Public Workers v. Mitchell, 330 U.S. 75 (1947)] "This Court is without power to give advisory opinions. 2 U.S. 301; Muskrat v. United States, 219 U.S. 346; Stearns v. Wood, 236 U.S. 75; Coffman v. Breeze Corps., supra. It has long been its considered practice not to decide abstract, hypothetical or contingent questions, Giles v. Harris, 189 U.S. 475, 189 U.S. 486; District of Columbia v. Brooke, 214 U.S. 138, 214 U.S. 152; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 301 U.S. 355; Electric Bond & Share Co. v. Securities and Exchange Commission, 303 U.S. 419; United States v. Appalachian Electric Power Co., 311 U.S. 377, 311 U.S. 423, or to decide any constitutional question in advance of the necessity for its decision, 36 U.S. 553; Trade Mark Cases, 100 U.S. 82; Liverpool, N.Y. & P. S.S. Co. v. Immigration Comm'rs, 113 U.S. 33, 113 U.S. 39; Burton v. United States, 196 U.S. 283, 196 U.S. 295; Arkansas Fuel Oil Co. v. State of Louisiana, 304 U.S. 197, 304 U.S. 202." [Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945)] Chief Justice John Jay to President Washington, August 8, 1793, responding to a request from Washington via Secretary of State Jefferson about obtaining SCOTUS advice:
#6. To: nolu_chan (#5)
I agree with your assessment on this one Mr. Chan. I also think it is wise not to have the supreme court ruling on non cases or hypothesizing on imaginary cases. Or giving advice on what is legal to the legislative or executive branch.
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#3. To: Rotara (#2)
#4. To: Artisan (#3)
he does some interesting research and is good at finding case law etc. but appears to me to be a total statist.
#5. To: Rotara, Artisan, Old Friend (#4)
Yes, he represents THE FERAL KANGAROO SYSTEM very well and ALWAYS sides with Big Government Statism. Very Progressive
U.S. Supreme Court
The rule against advisory opinions was established as early as 1793, see 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891), and the rule has been adhered to without deviation. See United States v. Fruehauf, 365 U.S. 146, 365 U.S. 157 (1961), and cases cited therein.
The only issue which we can be sure that the District Court decided as a matter of construction of the statute (as distinguished from those issues which the District Court held could not be proved under the indictment consistently with the Government's "judicial admission") is the issue posed by the fifth theory above -- the issue posed, in its most evidently abstract form, by the question presented here in the Government's Jurisdictional Statement -- "whether a loan of money," every loan of money, as such, "comes within the [statute's]... prohibitions."
[T]he lines of separation [are] drawn by the Constitution between the three departments of the government. These being in certain respects checks upon each other, and our being judges in a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions [previously asked], especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions [Art. II, § 2], seems to have been purposely as well as expressly united to the executive departments.
Replies to Comment # 5. 
#7. To: nolu_chan (#5)
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