The Federalism Debate [And 'States Rights']

Cato Institue ^ | 10/28/04 | Rodger Pilon

[Tailgunner Joe]

And your source as to the intent of Article IV?

[Eastbound]

"I was not speaking of the merits of prohibition, just that it did follow a constitutional procedure, that showed the majority of states (people) wanted it."

Yes, I realize that. I was only placing emphasis on the unconstitutionality of it because it was not given the litmus test of constiutionality before the amendment was passed. Which was later repealed. Which proves that it was of a light and transient reason and should not have been considered. My second point was that it is unconstitutional to remove a part of the supreme law. When the amendment was repealed, that's just what they did. Another violation, albeit a necessary one.

But in so doing, they established a precedent for removing parts of the supreme law.

[tacticalogic]

Yes, I realize that. I was only placing emphasis on the unconstitutionality of it because it was not given the litmus test of constiutionality before the amendment was passed. Which was later repealed. Which proves that it was of a light and transient reason and should not have been considered. My second point was that it is unconstitutional to remove a part of the supreme law. When the amendment was repealed, that's just what they did. Another violation, albeit a necessary one.

But in so doing, they established a precedent for removing parts of the supreme law.

I don't quite understand your reasoning there. The whole point of the process of amendment is adding to or removing parts of the supreme law. It was necessary to pass an amendment because enacting prohibion would have been unconstitutional without it.

[tpaine]

That's the typical robertpaulsen, robertpaulsen, robertpaulsen, tactic.

He ignores whatever he doesn't care for, then comes back tomorrow with the same specious argument he had yesterday.

[fortheDeclaration]

What process did they use to repeal it?

Getting a constitutional amendment passed is difficult, I would think getting one removed would be also.

[tpaine]

Words have meaning.

The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".

This is a fact, not my interpretation.

[tacticalogic]

Getting a constitutional amendment passed is difficult, I would think getting one removed would be also.

Harder, actually. AFAIK there is no process for removing an amendment once it's ratified and passed.

[fortheDeclaration]

So how did they get rid of the Prohibition amendment?

It seemed when FDR got elected, it got repealed.

[tacticalogic]

The passed another amendment which nullified the first one.

[tpaine]

THE NATIONAL PROHIBITION LAW HEARINGS, 1926, ( those interested in the WOD should check it out) [Free Republic]
Address:http://www.freerepublic.com/forum/a3ae8489003ca.htm

[fortheDeclaration]

Thanks.

[fortheDeclaration]

Your link did not work

[Eastbound]

"I don't quite understand your reasoning there. The whole point of the process of amendment is adding to or removing parts of the supreme law. It was necessary to pass an amendment because enacting prohibion would have been unconstitutional without it."

And my point was that the amendment itself was unconstitutional, regardless of what the majority of the states or people wanted. It infringed upon the 'pursuit of happiness' (property rights). As i stated a bit ago,:

"The prohibition of the sale of intoxicating liquors in the United States was repugnant to the supreme law which protects private property and the disposal and sale thereof."

I will always be of the opinion that even if everyone in the country voted that it is illegal to sell cream soda, it will still be my right to do so.

As far as your point in removing parts of the supreme law, that's a 'no-no.' We can add to the constitution as long as what is added is in pursuance to the rest of it. But we cannot remove roadblocks to insure pursuance.

[tacticalogic]

Okay. Do you have any historical background to support that interpretation?

[tpaine]

Weird.

It works from my link page, but not here.
You could probably get the article through an FR search. It was posted in 2001.


THE NATIONAL PROHIBITION LAW HEARINGS, 1926, ( those interested in the WOD should check it out) [Free Republic]

[Tailgunner Joe]

But it is said, that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW by the very meaning of the term includes supremacy. It is a rule which those to whom it is prescribed are bound to observe.

But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed. - Alexander Hamilton, Federalist, no. 33

[tpaine]

And your source as to the intent of Article IV?
141 Tailgunner Joe

______________________________________


Words have meaning.

The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".

This is a fact, not my interpretation. 146 tpaine

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Tailgunner Joe rebuts:

"--- But it is said, that the laws of the Union are to be the supreme law of the land.
But what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW by the very meaning of the term includes supremacy. It is a rule which those to whom it is prescribed are bound to observe.

But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land.

These will be merely acts of usurpation and will deserve to be treated as such.
Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government.

It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution;
which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed."
- Alexander Hamilton, Federalist, no. 33


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What have you proved by quoting Hamilton, joe?

If anyone here can wade through his tortured syntax, they might agree with me that he supports my position more than he supports yours.

[fortheDeclaration]

I agree that the amendment process can be abused such as making direct taxation and direct election of Senators part of the Constitution.

It was hoped that the process would be so difficult that bad amendments would be avoided.

[tacticalogic]

The difficulty lies in determining who would have the authority to declare a constitutional amendment unconstitutional, and how you would prevent abuse of that authority.

[Eastbound]

"Okay. Do you have any historical background to support that interpretation?"

In that you weren't specific, I'll be general. Article VI, para 2, as we all are aware of by now, is the supreme law of the land. At least it delineates how the supreme law should be applied.

In that we the people wrote the constitution to provide a mechanism to secure our rights, it should be self-evident that our rights are the supreme law. Why should be write a constitution that removed our rights? Well, we didn't.

We just got through fighting the king's men to proclaim them.

So life, liberty and the pursuit of happiness was the promise of the American Revolution. The right to self-determination and personal sovereignty. Every man a king under his own fig tree. (generically speaking, these days.)

Our charter was worded to express that ideal. In that individuals sometimes encroach on another's rights or space, we created a legal mechanism to punish each other when we went astray.

In the simple wording and logic of Article VI, para 2, (the supremacy clause) it is shown that neither the state nor federal government can infringe upon or impair that ideal, as Congress can make no law which is not in pursuance to that ideal. Nor can the state.

Otherwise there would have been no need for the American Revolution.

That is about as historical as I'm going to get right now.