Posted on 11/02/2004 11:20:24 AM PST by tpaine
2004
While observing the proceedings in a federal District Court, I was taken-back by the blatant arrogance of the judge masquerading as a constitutional officer. The case involved a civil dispute between two corporations. After setting a briefing schedule and reading the opposing attorneys the riot act concerning the conduct of his courtroom, the judge did something that illustrates the extent of the usurpation of power being perpetrated by the federal government. When one of attorneys told the judge he was unavailable for a motion hearing because he was scheduled to be in state court for a murder trial that same day, the judge came out of his chair and told the attorney to remind the state judge of the "supremacy clause" of the United States Constitution. He went on to state that since the federal government is supreme and above the States, the judge in murder case would have to change the date of the trial to accommodate the federal proceedings in his courtroom. If this federal judge had not been a constitutional renegade, he would have never asserted that the federal government is supreme and above the States.
The so-called "supremacy" clause is found at Article VI, Clause 1 and states in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme law of the land - any thing in the constitution or laws of any state to the contrary notwithstanding.
Nowhere in this provision does it state the federal government is supreme and above the States. It simply states that the Constitution and the laws made in pursuance thereof are supreme.
Alexander Hamilton addressed the extent of this clause in Federalist Essay No. 33:
[I]t is said that the laws of the Union are to be the supreme law of the land - It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution -[Bold not added]
In the New York Convention of 1788 considering ratification of the proposed constitution, Hamilton responded to the criticisms being leveled against this provision:
I maintain that the word supreme imports no more than this ¾ that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government. The states, as well as individuals, are bound by these laws: but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent powers, in which they are supreme.
In Hamilton's words we see the principles of limited government and enumerated powers. This clause does not expand federal power; it restricts federal power because that government only exists within the confines of its limited enumerated powers. When the federal government departs from the Constitution and enacts laws outside the scope of its delegated powers, those laws are not "supreme or binding" because the federal government does not exist outside of its limited enumerated powers.
In order for the federal government to be supreme and above the States, it would first have to have the constitutional power to modify or abolish the powers of the States. No such power was granted to the federal government by the Constitution. In fact, since the States created the federal government, they have the power to abolish or amend the powers of their federal government any time they wish.
The amendment process is found at Article V and provides two methods for proposing amendments. Two-thirds of the States [34] can request a Constitutional Convention or Congress [two-thirds of both Houses] can propose amendments. When a proposed amendment is adopted by Congress and submitted to the States for consideration, the States have the exclusive power to accept or reject the proposal and neither Congress nor a majority of the American people have the constitutional authority to over-ride their decision. In addition, if the States call a Constitutional Convention to amend the powers of the federal government, Congress is constitutionally powerless to stop them.
When a proposed amendment is under consideration by the States, it takes a vote of three-fourths of the States [38] to ratify any proposed change. Neither Congress nor a majority of the American people has a vote in this process. Likewise, neither the federal government nor the whole people can override a three-fourths vote of the States. The 38 smallest States, with a minority of the population, can bind the remaining 12 States with a majority of the population. This proves conclusively that federal government is not supreme and above the States. There is another way to read this clause. The Constitution is a compact or contract between the several States. If this clause is read in that context, it reads as follows: the contract between the several States, the Constitution, and all laws and treaties passed pursuant to the contract between the States shall be the supreme law of the land. It is the contract between the several States that is supreme, not the federal government. That government is simply the entity designated by the States to execute the limited functions entrusted to it by the terms of the contract.
Unfortunately, the federal government is using the illusion of supremacy to awe the States and the American people into undue obedience to its unconstitutional dictates. One example is the theft of land within the several States. The federal government cannot constitutionally acquire or exercise any legislative jurisdiction over land within one of the United States unless it complies with the consent requirement enumerated in Article I, Section 8, Clause 17. To get around this lack of authority, the federal government has used the supremacy clause to invoke condemnation or eminent domain power to take control of the land. It should be remembered that eminent domain is an attribute of sovereignty. The term "sovereignty" is interchangeable with the word "supremacy." Before the federal government could claim a general power of supremacy within the several States, it would first have to establish that the States surrendered their sovereignty to the federal government when they adopted the Constitution.
In Federalist essay No. 32, Alexander Hamilton reiterated the principle that the States, under the Constitution, would retain every pre-existing right [power] that was not exclusively delegated to the federal government: An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. [Emphasis not added]
Hamilton noted that the Constitution would establish a "partial union" between the several States. If the States were being consolidated into one nation they would not be delegating powers, they would be surrendering powers. That would include their sovereignty. In reality, the States did not surrender their sovereignty; they only delegated a portion of their sovereign powers to the federal government for the limited purposes enumerated in the Constitution. Thus, since the Constitution established a "partial union" between the several States, and the federal government was granted its powers from the States via the Constitution, the federal government cannot be supreme and above the States.
The failure of the States to control their federal government will have dire consequences if it is allowed to continue asserting supremacy over the States. In the New York Ratifying Convention referenced above, Hamilton warned of the consequences if the States ever lost their powers:
The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.
If the States and the American people do not awaken and assert their supremacy over the federal government, that government will ultimately turn Hamilton's warning into reality.
What this means is that the Constitution and federal government are supreme in the areas delegated by the states to the Constitution, and state judges and courts are bound to follow the tenets of the Constitution but retain sovereignty in all areas not delegated to the federal government.
No, you've simply made up that bold conclusion, based on your errors that I've lined out.
The clause says that our Constitution [& its BORs/Amendments] are the law of the land, the "Laws of any State to the Contrary notwithstanding."
The idea that the federal government or the Constitution is the law for everything
No one here has made such a 'straw man' claim.
is shot down by Article III, Section 2, which gives the specific and limited jurisdiction of federal courts as: "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.)"
The USSC's judicial power extends to all cases "arising under the Constitution".
My RKBA's is being violated by the State of CA. Do you contend that the USSC has no power to hear my plea?
In your Reply 81 you state (by lining out "and federal government" and then claiming that the states didn't retain all rights not delegated to the federal government) that you don't understand the basic concept of federalism. Read the Constitution and you will know that I am correct:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[Tenth Amendment, United States Constitution]
And who delegated those powers to the federal government?
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
[Article VII, United States Constitution]
So, we have state delegations that met in order to resolve problems found in the Articles of Confederation, but rather deciding on their own and without prompting from we the people to create a whole new form of government under a new constitution (a fact that you didn't know); nine states' ratification enacting the Constitution; and an amendment stating explicitly that all powers not delegated to the federal government are to be retained by the states or the people.
Now I know at this juncture you will claim that the states merely represent the people and that the powers retained by each are one and the same. But once again, you are wrong. The right to retain arms is an individual right. The right to coin money is a state right that was delegated to the federal government. The right to regulate local commerce, establish requirements for voter eligibility, and amend the Constitution are rights of the states. Also, the fact that the creators of the Constitution, who were members of state delegations, outlined which legal cases were subject to the Constitution and the federal courts with all others remaining in the state and local courts, is just one more point in the case proving that the federal government is restricted to only those powers delegated to it by the states through the Constitution.
Also, you claimed at one point that the Preamble trumps Article VII in stating whether it was the people or the states that created the Constitution. Article VII is a legally-binding passage that requires nine states to ratify; states amend the Constitution; and presidential elections are held on a state/federal level, not a national level (if you're not sure of the difference, please ask). How can you propose (with a straight face) that these facts are subordinated by a phrase in a non-binding introductory section?
Bump. The Preamble to the Constitution is a statement of intent and contains no delegated powers. Yet he dislikes the Preamble to the BoR that specifically limits them to the Federal government.
I wrote in Reply 80: What this means is that the Constitution and federal government are [is] supreme in the areas delegated by the states to the Constitution, and state judges and courts are bound to follow the tenets of the Constitution but retain sovereignty in all areas not delegated to the federal government.
In your Reply 81 you state (by lining out "and federal government" and then claiming that the states didn't retain all rights not delegated to the federal government) that you don't understand the basic concept of federalism.
You're twisting what I did and lying about what I claimed. My strikeouts changed your line to read:
--- What this means is that the Constitution [is] supreme, and state judges and courts are bound to follow the tenets of the Constitution but retain sovereignty in all areas not delegated to the federal government.
State governments [ie, the people] have always retained all powers not delegated to the federal goverment.
Read the Constitution and you will know that I am correct:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[Tenth Amendment, United States Constitution]
The 10th proves my point, not yours.
And who delegated those powers to the federal government?
The people ofthe USA, acting through their state governments.
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
[Article VII, United States Constitution]
So, we have state delegations that met in order to resolve problems found in the Articles of Confederation, but rather deciding on their own and without prompting from we the people to create a whole new form of government under a new constitution (a fact that you didn't know); nine states' ratification enacting the Constitution; and an amendment stating explicitly that all powers not delegated to the federal government are to be retained by the states or the people.
Now I know at this juncture you will claim that the states merely represent the people and that the powers retained by each are one and the same.
You got it kid.
But once again, you are wrong. The right to retain arms is an individual right.
ALL rights are individual. We the People delegate powers to all levels of government.
The right to coin money is a state right that was delegated to the federal government. The right to regulate local commerce, establish requirements for voter eligibility, and amend the Constitution are rights of the states.
Nope. The power to coin money is a state power, delegated by the people, that was then in turn delegated to the federal government . The power to regulate local commerce, establish requirements for voter eligibility, and amend the Constitution are powers of the states, delegated to them by the people.
Also, the fact that the creators of the Constitution, who were members of state delegations, outlined which legal cases were subject to the Constitution and the federal courts with all others remaining in the state and local courts, is just one more point in the case proving that the federal government is restricted to only those powers delegated to it by the states [ie, the people] through the Constitution.
Also, you claimed at one point that the Preamble trumps Article VII in stating whether it was the people or the states that created the Constitution.
We the people, through our state delegations, created our Constitution. -- Obviously.
Article VII is a legally-binding passage that requires nine states to ratify; states amend the Constitution; and presidential elections are held on a state/federal level, not a national level (if you're not sure of the difference, please ask). How can you propose (with a straight face) that these facts are subordinated by a phrase in a non-binding introductory section?
How can you maintain a straight face and continue your nitpicking 'arguments'?
Get a life.
And we can only hope you are not a lawyer.
The Preamble to the BoR does ~not~ specifically limit them to the Federal government.
It specifically says that when ratified, they will be -- "part of said Constitution;" -- which is the supreme Law of the Land. -- The "laws of any State to the Contrary notwithstanding."
No, kid, Article VII trumps your opinion.
And your assertion that the right to coin money, regulate local commerce, etc., are individual rights that were delegated to the states is absurd. How can each individual citizen regulate commerce, establish voter-eligibillity requirements, etc, without anarchy being the only possible outcome? It can't - think about it. Those are rights that must be possessed by a state. Whether said state is democratic, monarchical, etc., is beside the point. Nowhere in the Constitution or any state constitution does it say that individuals retain or may reclaim those rights. The Tenth Amendment is referring to individual rights (RKBA, free speech, etc.) that are ultimately retained by the people, regardless of whether a state remains in the Union or secedes, and state rights that will remain with the state if an act of secession happens. Nowhere did Jefferson, Locke, or anyone claim that all citizens have the right to coin their own money or perform those other functions that by their very nature must be centralized to one degree or another.
Read the below. You may learn something.
But probably not.
The Proper Role of Government
Address:http://www.usiap.org/Legacy/Addresses/ProperRoleOfGovt.html
The Source of Government Power
Leaving aside, for a moment, the question of the divine origin of rights, it is obvious that a government is nothing more or less than a relatively small group of citizens who have been hired, in a sense, by the rest of us to perform certain functions and discharge certain responsibilities which have been authorized. It stands to reason that the government itself has no innate power or privilege to do anything. Its only source of authority and power is from the people who have created it. This is made clear in the Preamble to the Constitution of the United States, which reads: "WE THE PEOPLE...do ordain and establish this Constitution for the United States of America."
The important thing to keep in mind is that the people who have created their government can give to that government only such powers as they, themselves, have in the first place. Obviously, they cannot give that which they do not possess. So, the question boils down to this. What powers properly belong to each and every person in the absence of and prior to the establishment of any organized governmental form? A hypothetical question? Yes, indeed! But, it is a question which is vital to an understanding of the principles which underlie the proper function of government.
Of course, as James Madison, sometimes called the Father of the Constitution, said, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary." (The Federalist, No. 51.)
Natural Rights
In a primitive state, there is no doubt that each man would be justified in using force, if necessary, to defend himself against physical harm, against theft of the fruits of his labor, and against enslavement of another. This principle was clearly explained by Bastiat:
Each of us has a natural right--from God--to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?" (The Law, p. 6.)
Indeed, the early pioneers found that a great deal of their time and energy was being spent doing all three--defending themselves, their property and their liberty--in what properly was called the "Lawless West." In order for man to prosper, he cannot afford to spend his time constantly guarding his family, his fields, and his property against attack and theft, so he joins together with his neighbors and hires a sheriff. At this precise moment, government is born. The individual citizens delegate to the sheriff their unquestionable right to protect themselves. The sheriff now does for them only what they had a right to do for themselves--nothing more. Quoting again form Bastiat:
If every person has the right to defend--even by force--his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right--its reason for existing, it lawfulness--is based on individual right. (The Law, p. 6.)
So far so good. But now we come to the moment of truth. Suppose pioneer "A" wants another horse for his wagon. He doesn't have the money to buy one, but since pioneer "B" has an extra horse, he decides that he is entitled to share in his neighbor's good fortune. Is he entitled to take his neighbor's horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as pioneer "B" wishes to keep his property, pioneer "A" has no just claim to it.
If "A" has no proper power to take "B's" property, can he delegate any such power to the sheriff? No. Even if everyone in the community desires that "B" give his extra horse to "A", they have no right individually or collectively to force him to do it.
They cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Locke nearly 300 years ago:
"For nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. (Two Treatises of Civil Government, II, 135,; P.P.N.S., p. 93.)
The Proper Function Of Government
This means, then, that the proper function of government is limited only to those spheres of activity within which the individual citizen has the right to act. By deriving its just powers from the governed, government becomes primarily a mechanism for defense against bodily harm, theft and involuntary servitude. It cannot claim the power to redistribute the wealth or force reluctant citizens to perform acts of charity against their will. Government is created by man. No man possesses such power to delegate. The creature cannot exceed the creator.
In general terms, therefore, the proper role of government includes such defensive activities, as maintaining national military and local police forces for protection against loss of life, loss of property, and loss of liberty at the hands of either foreign despots or domestic criminals.
The Powers Of A Proper Government
It also includes those powers necessarily incidental to the protective function such as:
1. The maintenance of courts where those charged with crimes may be tried and where disputes between citizens may be impartially settled.
2. The establishment of a monetary system and a standard of weights and measures so that courts may render money judgments, taxing authorities may levy taxes, and citizens may have a uniform standard to use in their business dealings.
You don't need to try to preach political philosophy to me - I've studied and read it. You're talking abstract, I'm talking concrete: The states, on their own volition, took it upon themselves to create a new federal government under a new Constitution; states delegated certain limited powers to the federal government they created; states ratified the U.S.C.; states amend it. The federal government is a creation of the states, which in turn theoretically represent we the people.
The clauses were not added to state Constitutions, they limited the Federal Constitution. The framers understood it to be so, as did the courts.
You don't need to try to preach political philosophy to me - I've studied and read it. You're talking abstract, I'm talking concrete:
You were "talking abstract" in #86:
Nowhere did Jefferson, Locke, or anyone claim that all citizens have the right to coin their own money or perform those other functions that by their very nature must be centralized to one degree or another.
86 HenryLeeII
I proved you wrong with Benson's essay on 'The Proper Role of Government', but you can't admit it.
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The states, on their own volition, took it upon themselves to create a new federal government under a new Constitution;
How weird. -- You keep acting as if states have some life of their own.
People created the 'state'. -- And our new Constitution, - one that controls both the new fed & the old state governments.
states delegated certain limited powers to the federal government they created; states ratified the U.S.C.; states amend it. The federal government is a creation of the states, which in turn theoretically represent we the people.
"Theoretically"? That slip pretty well sums up your philosophy. -- You really do think that the 'State' is the peoples sovereign, don't you..
Have you ever considered that you are spouting the 'communitarian' line?
The Conventions of a number of the States having, at the Time of their Adopting the [US] Constitution, expressed a Desire, in Order to prevent Misconstruction or Abuse of its Powers, [by ANY level of government] that further declaratory and restrictive Clauses should be added ...
The clauses were added to our US Constitution, and they further limited the power of Federal, State & local governments. The framers understood it to be so, as did the courts.
You're claiming that States like Mass/CA, -- or cities like Chicago/NY can ignore our 2nd Amendment.
Get real.
Supreme Federal? Sure. By the Constitution? No, by all the guns they have over us.
1) If a democracy then the federal gov't is boss and the states are just clients states..
2) If a republic then the states are boss and the federal gov't exists as a client to the states..
Actually the U.S. is somewhere between the two options.. Thats exactly why the polarization felt by both sides.. Some mentioned the civil war as culprit.. and would be partially correct.. State sovereignty took a big hit then(civil war) and was never fully restored.. It all would be academic if most knew the difference between a democracy and this unique republic WE have/had.. They don't.. Thats why the public schools STOPPED teaching civics long ago, expessly to confuse this issue..
Democracy is the pre-cursor to socialism, ALWAYS. Thats why there are no democracys on this earth that are NOT socialist countrys.. Socialism COMES from democracy not the other way around. Socialism is merely a symptom of democracy.. OUR republic stands in direct opposistion to socialism because of our Constitution.. Confusion on "these" issues is the source of the political fog present in America today.. Marx and Lenin knew it too as did the Soviet Union(generally).. Thats why we LOST the cold war ideologically .. to say we did'nt is to stand in direct opposistion to the facts.. The Communist Manifesto has been almost completely realized in URP and almost in America too, missing a few minor details.. Most don't even know there was even such a thing as the Communist Manisfesto or what is was or said...
Democracy is the road to socialism. Karl Marx
Democracy is indispensable to socialism. The goal of socialism is communism. V.I. Lenin
The meaning of peace is the absence of opposition to socialism.- Karl Marx
NOTE**- ALL Democracy sucks. Democrats are FOR us being a democracy. And not a few republicans are for the U.S. being democracy too.. Conservative, liberal, for "values", 'abortion" and more "issues" are all diversions from THIS issue.. Morphing the U.S. into becomeing a democracy is the plan and is espionage at the highest levels of government. Sad to say it is working too..
hosepipe wrote:
Is the United States a democracy (mob rule) or a republic..?
1) If a democracy then the federal gov't is boss and the states are just clients states..
2) If a republic then the states are boss and the federal gov't exists as a client to the states..
Actually the U.S. is somewhere between the two options.
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The confusion lies in the fact that the Constitution is the supreme Law of the Land, -- above any of the Federal, State, or local government statutes/laws "to the contrary notwithstanding".
[See Art VI]
"to the contrary notwithstanding"..... LoL....
This is non-sense.. a legalese Curly(Howard) salute..
The federal gov't was "invented" to represent the States internationally or to arbite disareements between the States, not to interfere with the States internally, or superceed them domestically..
Either the States can give the federal gov't(which by the way are PEOPLE) the Curly salute or the Federal gov't can give the States the Curly salute.. there is no middle ground.. One option is a democracy to other option is our republic the way it was designed. Thats why the civil war, in reality, was the war of Northern Agression.. Slavery was abolished true, but so was States rights.. There are two sides to every coin.. makeing the U.S. a defacto democracy happens to be ugly side to abolishing slavery. Allowing succesion would have been the smartest move.. but the north wanted to force its will on the other states.. And its STILL happening by the way.. The democrat northern states have been and ARE forceing socialism on the other states.. They are STILL doing it..
"to the contrary notwithstanding"..... LoL.... This is non-sense.. a legalese Curly(Howard) salute..
You're calling a direct quote from Article VI, -- a three stooges type JOKE?
The federal gov't was "invented" to represent the States internationally or to arbite disareements between the States, not to interfere with the States internally, or superceed them domestically.
You 'invented' that nonresponsive retort, hosepipe. The jokes on you.
No... I'm calling "contrary not withstanding".. a joke..
The American Constitution is now toilet paper as you well know..
Quoteing excepts from it is like repartee' from the John.. with a pro-active judiciary... means nothing..
Just after the completion and signing of the Constitution, in reply to a woman's inquiry as to the type of government the Founders had created, Benjamin Franklin said, "A Republic, if you can keep it."
Looks like maybe we can't keep it.. because America is a republic no longer.. The states are mere vassals of the Fed, like in Canada.. and every other democracy on earth.. the thing that made our republic different from a banana republic WAS soverignty of the States and the Fed being the "vassal"... Quoteing minutia from the constitution will NOT solve anything. Action is whats needed not legal wrangling. If the 2nd amendment was NOT given for action agaisnt our government then what WHAT it given for.?.
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