...that I will bear true faith and allegiance to the same;
I take the "evolving document" or "living document" (I've heard both terms) idea to mean things still read the same as they originally did but now the meaning is different, presumanbly because we as a people are now a little more enlightened and the original meaning does not suit our purposes in this day and age.
I believe the evolving document interpretation makes no sense. If the document evolves (by my definition of evolve) an amendment process is not needed - just run the country by the polls. But we have an amendment process because the founding fathers realized things would need to change from time to time, so they gave us a process by which the change was to occur.
I believe the U.S. Constitution has to mean to us what it meant the day it was ratified to the people who ratified it. If it needs to change, then change it according to the process.
"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;.....
I'm not bearing true faith and allegiance to something that changes in meaning everytime society decides they're now a little more enlightened.
I knew the legal mind would pick me apart!
:p
jmm99,
I don't know, I've never thought about the commerce example before. :confused:
The specific examples I had in mind were Ammendments II and X, of course. :cool:
Not interested in quibbling with you,
TheCurmudgeon - so declare yourself the winner and go on to apply your concepts of conspiracy and attempts to your real life as you please.
Cheers
Mike
Dear Readers, I suppose I was a bit "short"
with TheCurmudgeon. Here's why - no apology.
Yup, he did go to my link on Conspriracy (crime) - and quickly read down the page to find the first thing he could cherry-pick, which was:
Quote:
Exceptions
Under section 2(1) the intended victim of the offence can not be guilty of conspiracy.
Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:
(a) a spouse or civil partner; [1]
(b) a person under the age of criminal responsibility; and
(c) an intended victim of that offence.
Obviously, a statute is referenced - whose statute ? Why Criminal Law Act 1977, of course - which comes under the heading "Conspiracy in English Law".
The law cited by TheCurmudgeon is UK law - and David or some other Brit can explain that law if they wish.
Now, the Wiki does get into US law - specifically, the Federal conspiracy law as considered by SCOTUS (emphasis added):
Quote:
Conspiracy in the United States
Conspiracy has been defined in the US as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions. [1][2]
1.
http://definitions.uslegal.com/c/conspiracy/
2.
http://www.lectlaw.com/def/c103.htm
For example, planning to rob a bank (an illegal act) to raise money for charity (a legal end) remains a criminal conspiracy because the parties agreed to use illegal means to accomplish the end goal. A conspiracy does not need to have been planned in secret to meet the definition of the crime. One legal dictionary, law.com, provides this useful example on the application of conspiracy law to an everyday sales transaction tainted by corruption. It shows how the law can handle both the criminal and the civil need for justice.
Quote:
[A] scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of fraud and conspiracy, and also allow a purchaser of an auto to sue for damages [in civil court] for the fraud and conspiracy.
Conspiracy law usually does not require proof of specific intent by the defendants to injure any specific person to establish an illegal agreement. Instead, usually the law only requires the conspirators have agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the law.
In United States v. Shabani, 513 U.S. 10 (1994) the United States Supreme Court ruled: U.S. Congress intended to adopt the common law definition of conspiracy, which does not make the doing of any act other than the act of conspiring a condition of liability" at least insofar as to establish a violation of a narcotics conspiracy under 21 U.S.C. § 846. Therefore, the Government need not prove the commission of any overt acts in furtherance of those narcotics conspiracies prohibited by 21 U.S.C. § 846.
The Shabani case illustrates that it is a matter of legislative prerogative whether to require an overt step, or not to require an overt step in any conspiracy statute. The court compares the need to prove an overt step to be criminally liable under the conspiracy provision of the Organized Crime Control Act of 1970, while there is no such requirement under 21 U.S.C. § 846.
The Supreme Court pointed out that common law did not require proof of an overt step, and the need to prove it for a federal conspiracy conviction requires Congress to specifically require proof of an overt step to accomplish the conspiracy. It is a legislative choice on a statute by statute basis.
The conspirators can be guilty even if they do not know the identity of the other members of the conspiracy. See United States v. Monroe, 73 F.3d 129 (7th Cir. 1995), aff'd., 124 F.3d 206 (7th Cir. 1997).
Make up your own mind as to which law you want to follow - UK law in the UK and US law in the US, seem reasonable choices.
Take Care
Mike
Hey, I thought you said I won ...
JMM,
I will not dispute your research, and I was wrong to cite English common law, but it was your cite.
I only offer a counter-example. Based on your reading of the law two boxers could not agree to participate in a boxing match since this would amount to conspiracy to commit battery. Does not matter that the two adults consented.
Similarly, every time a doctor agrees to conducts a surgery, he is engaging in a conspiracy to commit assault.
"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient‟s consent commits an assault, for which he is liable in damages. This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained." Schloendorff v. Soc‟y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
In my reading, conspiracy can only be committed where the underlying act is criminal regardless of consent. Examples previously cited were drugs (depending on type and locality), prostitution (depending on locality), gambling (depending on type and locality), and other "victimless" crimes. Those acts are criminal because they "victim" is society in general, hence the state interest in them.
But, I will admit I could be mistaken.
I must also admit that we are somewhat off topic. I only post because the arguments seemed specious.
As I stated earlier congress's power to decide whether or not homosexual conduct should be allowed in the military is based on a constitutional provision giving them the authority to regulate the land and naval forces. That grant of authority has been interpreted by the courts (under Article III of the constitution: "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 be quite broad. see post #290.
Congress spoke. We make it happen.
Legally speaking, those that take issue with this always have the Lieutenant Watada option or, as one officer put it to me, they can resign or otherwise depart military service.