Does the above phrase from Article I say that the Senate is compelled to use that power, even in a case for which that body has original jurisdiction? If you agree, why do you also agree that the Supreme Court, also in a case of original jurisdiction, was not compelled to hear a case before it? Voilà, the contradiction of the progressive so-called mind.
"...the Senate shall have the power to try all impeachments..."
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Further: "When the President of the United States is tried, the Chief Justice shall preside..."
If you insist, as above in my #1, that "shall have the power" means compelled to use power, must the Chief Justice preside in a Senate trial, or there is no trial?
Consistency is a necessary component of interpretation, or did you think the Founders were that sloppy in cafeteria-style interpretation?
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@fauxlaw
Further: "When the President of the United States is tried, the Chief Justice shall preside..."If you insist, as above in my #1, that "shall have the power" means compelled to use power, must the Chief Justice preside in a Senate trial, or there is no trial?Consistency is a necessary component of interpretation, or did you think the Founders were that sloppy in cafeteria-style interpretation?
Can’t emphasize this enough:
Ok, you impeached Trump when he was in office as the President of the United. Cool. Per the Constitution Chief Justice Roberts must preside. Until he does, the trial is unconstitutional.
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@fauxlaw
The Senate shall have the sole Power to try all Impeachments.
I don't see that the senate has a constitutional obligation to try impeachments. Who said that?
Trump is not the president of the United States anymore than Bill Clinton is.When the President of the United States is tried, the Chief Justice shall preside
Article 1, Section 3, Clause 6 of the United States Constitution states: "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."
The Constitution requires the involvement of the chief justice only when the president is on trial. Since Trump no longer is president, there is no requirement for the chief justice to be involved.
The Constitution requires the involvement of the chief justice only when the president is on trial. Since Trump no longer is president, there is no requirement for the chief justice to be involved.
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@FLRW
The Constitution requires that “when the President is tried, the Chief Justice shall preside...”
The President is not being tried, so there should be no trial.
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@fauxlaw
Does the above phrase from Article I say that the Senate is compelled to use that power, even in a case for which that body has original jurisdiction? If you agree, why do you also agree that the Supreme Court, also in a case of original jurisdiction, was not compelled to hear a case before it? Voilà, the contradiction of the progressive so-called mind.
Having the power to try a case does not mean one must.
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@fauxlaw
Further: "When the President of the United States is tried, the Chief Justice shall preside..."If you insist, as above in my #1, that "shall have the power" means compelled to use power, must the Chief Justice preside in a Senate trial, or there is no trial?Consistency is a necessary component of interpretation, or did you think the Founders were that sloppy in cafeteria-style interpretation?
The Chief Justice is only required to president over the trial of a sitting president. At threat that’s his interpretation. Just because you don’t agree with John Robert’s doesn’t mean Donald Trump can’t be tried. That’s absurd.
Second, I find this part especially ridiculous... The only reason we are having this trial now that Trump is out of office is because the senate chose to hold off to give Trump time to prepare his legal defense. So holding it while he was still in office would have been a a violation of his rights, yet holding it after he leaves office is a violation of his rights. Just. Wow.
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@fauxlaw
*preside* (not president)
*At least* (not at threat)
Fixed
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@fauxlaw
Does the above phrase from Article I say that the Senate is compelled to use that power,
Famously ambiguous- one of the oldest fights in US law. American lawyers have been fighting over the proper interpretation of shall for 200 years but fauxlaw wants us to think that any contradiction is Progressive hypocrisy. I am quite confident that the tenants of Progressivism are entirely silent on the subject of US Constitutional interpretation.
Joe Kimble:
“Shall” has three strikes against it.
- First, lawyers regularly misuse it to mean something other than “has a duty to.” It has become so corrupted by misuse that it has no firm meaning.
- Second—and related to the first—it breeds litigation. There are 76 pages in “Words and Phrases” (a legal reference) that summarize hundreds of cases interpreting “shall.”
- Third, nobody uses “shall” in common speech. It’s one more example of unnecessary lawyer talk. Nobody says, “You shall finish the project in a week.”
For all these reasons, “must” is a better choice, and the change has already started to take place. The new Federal Rules of Appellate Procedure, for instance, use “must,” not “shall.”
Bryan Garner:
“Shall” isn’t plain English. . . But legal drafters use “shall” incessantly. They learn it by osmosis in law school, and the lesson is fortified in law practice.
Ask a drafter what “shall” means, and you’ll hear that it’s a mandatory word—opposed to the permissive “may”. Although this isn’t a lie, it’s a gross inaccuracy. . . Often, it’s true, “shall” is mandatory. . . Yet the word frequently bears other meanings—sometimes even masquerading as a synonym of “may”. . . In just about every jurisdiction, courts have held that “shall” can mean not just “must” and “may”, but also “will” and “is”. Increasingly, official drafting bodies are recognizing the problem. . .Many . . drafters have adopted the “shall-less” style. . . You should do the same.
Wikipedia:
the U.S. government advises against using the word shall for three reasons:
- it lacks a single clear meaning,
- it causes litigation, and
- it is nearly absent from ordinary speech.
The legal reference Words and Phrases dedicates 76 pages to summarizing hundreds of lawsuits that centered around the meaning of the word shall. When referencing a legal or technical requirement, Words and Phrases instead favors must while reserving should for recommendations
Antonin Scalia, in his 2007 Textualist manual, "Reading Law" concluded that whenever the word "shall" can reasonably be understood as mandatory, it ought to be taken that way.
Indeed, SCOTUS ruled as recently as 2007 that
(“[T]he mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion”); Association of Civil Technicians v. FLRA, 22 F. 3d 1150, 1153 (CADC 1994) (“The word ‘shall’ generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive”); Black’s Law Dictionary 1375 (6th ed. 1990) (“As used in statutes … this word is generally imperative or mandatory”). Neither respondents nor the Ninth Circuit has ever disputed that Arizona satisfied each of these nine criteria. See 420 F. 3d, at 963, n. 11; Brief for Respondents 19, n. 8.
The traditional, Conservative, and Textualist readers of the US Constitution all agree that the Senate is so compelled.
even in a case for which that body has original jurisdiction?
Let's call this legal dodginess on fauxlaw's part. fauxlaw knows that the Senate alone has original jurisdiction over every impeachment imposed by the House. fauxlaw wants to create the appearance of legal alternatives where none exists.
Let's be sure to note that fauxlaw edited the US Constitution here, living up to the promise of his username.
US Constitution:
"The Senate shall have the sole Power to try all Impeachments."
fauxlaw:
""...the Senate shall have the power to try all impeachments..."
If you agree, why do you also agree that the Supreme Court, also in a case of original jurisdiction, was not compelled to hear a case before it?
Because Article III, Section 2 of the US Constitution (establishing the Judiciary) never says that any court, including the Supreme Court are compelled to hear every case petitioned within their jurisdiction, including original jurisdictions. The Article grants the Supreme Court jurisdiction over foreign States, for example, but the Supreme Court has historically rejected almost every foreign petition brought before them.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Arguing that "must have jurisdiction" means the same thing as "must hear every case brought before that juridiction" is Tucker Carlson trumpcuckism intended for folks who can't be bothered to look up the definition of jurisdiction, with no serious application to American law.
Voilà, the contradiction of the progressive so-called mind.
PROGRESSIVISM is the philosophy that "advancements in science, technology, economic development and social organization are vital to the improvement of the human condition, progressivism became highly significant during the Age of Enlightenment in Europe, out of the belief that Europe was demonstrating that societies could progress in civility from uncivilized conditions to civilization through strengthening the basis of empirical knowledge as the foundation of society. Figures of the Enlightenment believed that progress had universal application to all societies and that these ideas would spread across the world from Europe."
Most anybody worth listening to is of a Progressive mind and while the US Constitution is one of the finest artifacts of the Age of Enlightenment, there's nothing inherently Progressive about textual readings like Scalia's.
Or has even Scalia now been remonstrated by fauxlaw to the left of any new Trumpist necessity? ...another RINO's hippie dippie misinterpretation of the Constitution's true meaning, which is as always subject to the Trumpist's present need.
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@fauxlaw
Further: "When the President of the United States is tried, the Chief Justice shall preside..."If you insist, as above in my #1, that "shall have the power" means compelled to use power, must the Chief Justice preside in a Senate trial, or there is no trial?Consistency is a necessary component of interpretation, or did you think the Founders were that sloppy in cafeteria-style interpretation?
Unfortunately for your argument, the President of the United States is not on trial. Would you argue textually that "former Presidents" is necessarily and compulsorily implied in every Constitutional use of the term "President of the United States." Obviously not, or every ex-President would also be Commander-in-Chief of the military. Or would you argue that only in Article II, section 3 should "President of the United States" also mean "Former Presidents of the United States?"
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@fauxlaw
--> @FLRWThe Constitution requires that “when the President is tried, the Chief Justice shall preside...”The President is not being tried, so there should be no trial.
But in every single Senate trial in which the impeached was not the President of the United States, the Senate President Pro Tempore has always presided. fauxlaw's radical re-interpretation here would overthrow all precedent and make all 8 Senate convictions unconstitutional for the sake of Trump.
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@fauxlaw
The Constitution requires that “when the President is tried, the Chief Justice shall preside...”The President is not being tried, so [the constitution does not require the Chief Justice to preside.]
Fixed. Also most impeachments haven't been of presidents. https://en.wikipedia.org/wiki/Impeachment_in_the_United_States#List_of_formal_impeachments I don't understand the reasoning.
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@fauxlaw
If you insist, as above in my #1, that "shall have the power" means compelled to use power
Who says that?
You can pick at words or get a fucking grip. Trump is a narcissistic sociopath who doesn't belong anywhere near a position of power. He's misogynistic, racist, extremely impulsive to a toddler level of self-restraint and has inspired a violent attack on the literal white house.
There needs to be a hammer slammed and this scumbag given what's due. There's no question he's guilty, it's just about playing word games now. This idiot can't accept his vile lack or morals lost him an election for a morally concerned president. What a sheer imbecile in every sense of the term.
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@oromagi
Who's "radical interpretation?" Eight Senate convictions. Granted. Which of those eight was the President, deserving of having the Chief Justice preside? The requirement is exclusive for the President, yeah?
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@Discipulus_Didicit
Who says that?
The contextual understanding of 19th century English syntax is that "shall have the power" indicates that power may be used, but is not mandatory. They, the Senate in this case, may choose to not engage use of the power. It's a bit like a common Christian claim that since God is omnipotent, he always must act with omnipotence, even when that may be excessive use of power. Some things are more simple to do for God than others, just like for us. Why waste power not needed?
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@fauxlaw
The contextual understanding of 19th century English syntax is that "shall have the power" indicates that power may be used, but is not mandatory.
Okay... cool. My question was what person or group argues that it is mandatory? Your OP implies that some or all progressives do so I asked for examples.
When is a House Manager going to present evidence reflecting the single article presented, which speaks only to Trump’s “conduct on January 6, 2021?” We’re presented a history of the election and since, but the article speaks to 1/6, not to events prior to that date. When is someone going to focus?
Now the fourth manager up, and he is going to review “up to January 6,”
If the Article itself is lacking substance, whose fault is that? Pelostomy?
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@fauxlaw
--> @oromagiWho's "radical interpretation?"
Yours
POST#16
Eight Senate convictions. Granted. Which of those eight was the President, deserving of having the Chief Justice preside? The requirement is exclusive for the President, yeah?
POST#2
The President is not being tried, so there should be no trial.
We agree that the President is not being tried so the Chief Justice may not preside, that is Senate President Pro Tempore job as it always has been in all past prior convictions.
Saying that the absence of the Chief Justice delegitimizes the trial is anti-precedent, anti-Conservative, and anti-Constitutional.
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@oromagi
No, we do not agree. The opening statement of H-Res 24 names Trump, President of the United States.” As of the start of trial, which Pelostomy delayed, again, unnecessarily, he is no longer the President. So, the trial is a sham.
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@Discipulus_Didicit
-> @fauxlawThe contextual understanding of 19th century English syntax is that "shall have the power" indicates that power may be used, but is not mandatory.Okay... cool. My question was what person or group argues that it is mandatory? Your OP implies that some or all progressives do so I asked for examples.
See my POST #10- fauxlaw is arguing against crazy progressives like Antonin Scalia, the USFG, SCOTUS, Black's Law Dictionary, and most precedent in English language law.
Notice how Constitutional textualists (just like Biblical literalists) always say they want the intrinsic meaning but always mean they'll only settle for most favorable interpretation to the present need.
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@fauxlaw
--> @oromagiNo, we do not agree. The opening statement of H-Res 24 names Trump, President of the United States.” As of the start of trial, which Pelostomy delayed, again, unnecessarily, he is no longer the President. So, the trial is a sham.
Trump was President when H-Res 24 was written on Jan 11 and was President when the resolution passed on Jan 13. The Republican led Senate decided to delay the trial until after Trump was removed from office, thereby removing the option of the Chief Justice presiding.
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@oromagi
Trump was President when H-Res 24 was written on Jan 11 and was President when the resolution passed on Jan 13. The Republican led Senate decided to delay the trial until after Trump was removed from office, thereby removing the option of the Chief Justice presiding.
Democrats passed Articles knowing very well that a trial physically cannot happen in 7 days lol
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@ILikePie5
Democrats passed Articles knowing very well that a trial physically cannot happen in 7 days lol
Since the prosecution, the judge, and the jury are also the eye-witnesses and victims of the Republican assault on Democracy, as has been true of no other trial in American history, I see no impediment to the Senate's rapid verdict, had the Republican led Senate so wished.
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@oromagi
Since the prosecution, the judge, and the jury are also the eye-witnesses and victims of the Republican assault on Democracy, as has been true of no other trial in American history, I see no impediment to the Senate's rapid verdict, had the Republican led Senate so wished.
Well if you wanted the Senate to violate the due process rights of Trump, thats on you.
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@oromagi
thereby removing the option of the Chief Justice presiding.
And also thereby eliminating the need of Senate impeachment trial against a private citizen. A House impeachment, by the way, which violated House rules Pelosi had ratified for the 116th Congress by not holding committee investigations, with witnesses to establish evidence, which are required to be had, by Rule.