The Perversion of Our Laws

[Loyolas Mattman]

What about federal jurisdiction over interstate commerce, "necessary and proper" and the like? Where does that fit in?

I really believe that someday state governments will cease to exist as anything other than branch offices of the federal government - It seems that the public is being drilled into believing the feds are the "real government," and that state government is something less.

[tumblindice]

I tell my clients: don't look at me, look at the judge. And don't lose your temper. Each time you do, well, there's a hundred bucks off your claim. Only the judge loses his temper in this room. Ya da ya da ya da.
So what do they do? They stare at me and lose their temper.

Ooops, I almost forgot, let me re-do the above.

With the utmost delecation and self-abasement, I admonish my constituent to view the arbiter, not moi. And I urge self-restraint, sine qua non, so as not to impinge upon possible emolument gratification, the res, ipso facto, enraging the arbiter amounts to res ipsa loquiter.

35 of the Founding Fathers, the largest group, were lawyers. They were concerned about `leveling', possibly because (then as well) good citizens were making noises about . . . . tossing them in the harbor.
There's nothing new under the sun. ;^)

[Loyolas Mattman]

Too funny. Thanks for a break from the DC Industrial Safety Act.

It never ceases to amaze me how non-lawyers view what we do as some form of trickery or witchcraft.

[MamaTexan]

This is the chapter from the Federalist Papers on the dangers of factionalism in a democratic government. In my day, most High School students were required to read this somewhere along the line. In it Madison acknowledges the dangers of faction in a pure democracy and explains all the safeguards contained in the Constitution to avoid these dangers.

We studied it as well.

That's the main danger of having the federal government in control of public education. Teaching selective facts instead of actual knowledge leads to an ignorant populace.

[MamaTexan]

What about federal jurisdiction over interstate commerce, "necessary and proper" and the like? Where does that fit in?

The administrative authority's power 'to regulate commerce among the several States' means commerce that affected more than one State. It's talking about the legal entity of the State, not everything that crosses State lines.

Gibbons v. Ogden
The subject to which the power is next applied, is to commerce "among the several States." The word "among" means intermingled with. A thing which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself.

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Joseph Story, Commentaries on the Constitution
§ 1075 The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments. When duties are laid, not for purposes of revenue, but of retaliation and restriction, to countervail foreign restrictions, they are strictly within the scope of the power, as a regulation of commerce. But when laid to encourage manufactures, they have nothing to do with it. The power to regulate manufactures is no more confided to congress, than the power to interfere with the systems of education, the poor laws, or the road laws of the states. It is notorious, that, in the convention, an attempt was made to introduce into the constitution a power to encourage manufactures; but it was withheld. Instead of granting the power to congress, permission was given to the states to impose duties, with the consent of that body, to encourage their own manufactures; and thus, in the true spirit of justice, imposing the burthen on those, who were to be benefited.

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It seems that the public is being drilled into believing the feds are the "real government," and that state government is something less.

Agreed. And that misconception is killing us. :-(

[Rurudyne]

Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens

Yes. The first 8 Amendments, being mutually agreed upon by all the States, was binding on all the States.

Actually, the BoR should not be considered without also taking into account the Preamble to same, the relevant portion of which reads:

The conventions of a number of the States having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution.

Without belaboring the point, please note that States––which preexisted the Constitution––were concerned about the abuse of "its powers"––and not "their powers" as one should expect if the BoR were intended at the start to be applied to the several States. Examination of the rest of the preamble and some of the articles themselves will bear this out.

For example, the 2nd Amendment:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This article exist mainly within the context of Article 1:Section 8, the relevant portion of which reads:

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organization, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The important function of the 2nd Amendment may be summed up in that context as follows: it PREVENTS the Congress from so regulating the formation of the Militia as to PREVENT it and further prevents the Congress from disarming the People from whom the Militia would be comprised.

Without the 2nd Amendment, and prior to the establishment of the National Guard (which is arguably an army-in-repose rather than a militia), it might have been the case that Congress could have so restricted the formation and calling out of State Militia as to effectively eliminate them; also, they might have regulated the quality and caliber of weaponry available to the People who might have formed any then possible Militia so as to render them impotent even by what might have been possible.

The 2nd Amendment prevents this.

Thus the 2nd Amendment doesn't exist to be binding ON the States, but rather, it exist for the States and to be a shackle on the Federal.

In the same vein, consider the 3rd Amendment:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Please consider, a "Soldier" is not the same thing as a militiaman. For one, he is a definitive article ("Soldier" nor soldier) and thus relates to belonging in a standing Army as governed by Article 1:Section 8. A militiaman, being part of the Militia, is not properly a "Soldier" in that sense.

Again, this is an article that exist to restrain Federal power (States possessing Militia and not national Armies) that benefits the several States and could not have been properly restrictive on the Militia prior to the formation of the National Guard, which IS an Army and which subsumed (perchance illegally) them (the Militia). The next five articles also appear in a very specific context with respect to each other and could be thought of as a procession of points of law rather than an independent assertion of same.

They appear in this order:

––the gathering of evidence;

––the accusation of wrong doing and the assurance of Due Process;

––the prosecution of Trial;

––the sorts of proceedings that shall constitute a proper Trial;

––and the restriction of the government to impose arbitrary pre-Trial restrictions of post-conviction punishments.

Following this careful arrangement we find (in addition to the Preamble to the BoR) clear indication as to which sort of entity was to be restrained by these five articles in the 7th Amendment where it states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

It was the "due process" and "equal protection" clauses of the 14th Amendment that extended the Amendments in question to be authoritative over the several States. A careful reading of the Slaughterhouse opinion will demonstrate that the 1st Amendment (among a few other essential rights) was already held applicable apparently because––ours being a representative Republic––it was imprudent to distinguish between the activity of a political party at the State level and the activity of same at the Federal level THUS the assurance given in Article 4:Section 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

... was called into play.

You can find the text of the Slaughterhouse opinions here at:

www.law.umkc.edu/faculty/projects/ftrials/conlaw/slaughter.html

It is written is approachable language. I would, in particular, point you to Justice Field's dissenting opinion to help highlight so much of what is wrong with our legal system:

Mr. Justice FIELD, dissenting:

I am unable to agree with the majority of the courts in these cases, and will proceed to state the reasons of my dissent from their judgment.

The question presented is, therefore, one of the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it....

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always, controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right "to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property." That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.

The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," and they have been the subject of frequent consideration in judicial decisions.

I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.

Please understand the sections I've highlighted.

First, or rather second, in the second bit I highlighted it was Justice Field who MOST CLEARLY described the motivation for the adoption of the 14th Amendment––Congress had in 1865 passed the very first Federal Civil Rights Act only to find that they did not have the enumerated authority to respect any form of civil rights that the several States could not disparage. Thus in the "privileges or immunities" clause of the 14th Amendment the empowered themselves accordingly and the reissued the 1865 law under the auspices of their new, legitimate power.

Which brings me to the first bit I highlighted.

Justice Field opines that this then new power for Congress to respect civil rights, the guarantee that the first eight Amendments do apply to the several States, AND the protection previously determined to be necessary for Article 4:Section 2 to properly operate ARE NOT ENOUGH!

He wants to do as the Butchers of N.O. demand and also find that the 14th Amendment can be intentionally misconstructed to empower the supreme Court to consider the 9th Amendment as ALSO being in force over the several States.

But doing so would have created a dramatic REVERSAL between the role of Congress and of the Court, or indeed any court, since IF sCOTUS were empowered to define inalienable rights from out of the mist of unenumerated rights (as per the 9th Amendment) and then enforce them on the several States, THEN the paltry "power" of Congress to define mere civil rights would be an insignificant thing indeed!

Had Justice Field and his companions carried the day all those years ago then the principal authority to ACT in all matters of rights would have been with the Supreme Court, and not Congress.

In light of that, we should be humbled and awed by the sheer arrogance and audacity of Justice Bradley to opine in his own lonely dissent that (essentially) the activities of a legislature DO NOT constitute a proper form of Due Process.

Indeed, one might see our courts presently acting on the basis of their previous opinions (which are not legislation) much as if Justice Field HAD carried the day.

That's probably enough for this post. ^_^

[tacticalogic]

Another bit from Madison, to go along with that

Document 19

James Madison to Joseph C. Cabell

13 Feb. 1829Letters
4:14--15
For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

How far afield we have strayed, on nothing more than specious sophistry.

[Rurudyne]

What do you mean "legalese?"

Actually, the majority of what lawyers do isn't in any way disreputable and what little there is that should be, should by now be considered essentially "atmospheric."

Of course I'm referring to things like the bait and switch, bits of jargon that seem to mean one thing in ordinary usage but mean something else in a court.

Please note what I proposed as a curative:

I did NOT propose dumbing down the language.

I DID propose educating people about the language.

The "Law of Unintended Consequences" aside, the only way to redress this issue (short of a State Supreme Court properly overruling the Federal supreme Court on an issue which the Federal has no proper standing and sticking to its guns) is to reduce the need for lawyers ... if only by reducing the need to have them to talk to OTHER lawyers. Education of the people could do that.

It'd be a LOT better use of our education dollar than so much of the trash we DO spend money on. Also, if there was some level of legal education in all schools then one might expect the following to also happen:

––some kids with an unknown talent for law might get interested in actually being lawyers.

––other kids who've assumed they want to be lawyers might learn they'd be happier doing something else.

––law schools might have an easier time finding good candidates and turning out better lawyers.

––and literacy rates should go up (or illiteracy at least become more apparent) ... hard to read about essential legal theory and the use of legal language when you can't READ. ^_^

Also, I would suggest that the legal language has only evolved so far because of the transformation in our Federal government that was accomplished through this lawless substitution on the part of some disillusioned 19th century legal types (when has disillusion EVER been a good reason to do anything?).

[Rurudyne]

35 of the Founding Fathers, the largest group, were lawyers.

And yet so few of them made a living at it.

Whatever their short failings, common laws are easier to understand and I guess I can dream of a time when a university level legal education is again seen as a proper way to round out a good education (as it was in the days before liberal arts ... much less illiberal arts) rather than the sole path to a career in law.

[Freedom4US]

..."I don't blame my plumber or my electrician because I don't understand how the pipes or wires in my house work. I hire a professional to do that for me."

I agree, but it must be pointed out that when it comes to the constitution, bill of rights and the declaration - the framers were purposefully very clear and concise about what they were writing and proposing. Their ideas were meant to be read and understood by everyone. That's *not* what your modern politician/lawyer is going to posit however. "We're the experts, you can't possibly understand the complexities involved, so we'll interpret for you." This is classic bullshit of the highest order.

[MamaTexan]

Without belaboring the point, please note that States––which preexisted the Constitution––were concerned about the abuse of "its powers"––and not "their powers" as one should expect if the BoR were intended at the start to be applied to the several States.

That's one thing most people don't see. The States created the federal government, not the other way around.

The created can never be superior to the creator...period. The act of creation grants an inherent superiority.

That which you create, you have the right to control, and the federal government was given a very narrow area in which it had exclusive control.

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That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States.

In doing what the Judge suggests, it obliterates the Constitution. Nowhere does the federal government have the authority to reach outside its Constitutional boundaries.

It'll take me a while to sort through everything. It's been a while since I've read Slaughterhouse. I usually have to go through this type of things over and over....and I learn something new everytime!

:-)

[MamaTexan]

Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government,

Those men could write!

It amazes me how much of the protections put in place are there to prevent the States from jumping on each other just as much as they were to restrain the federal government.

Our ancestors were a pretty lively bunch.

LOL!

[Rurudyne]

Shameless bumpage! ^_^

[Rurudyne]

Hi, this isn't necessarily shameless bumpage but I thought to see what you folks thought of an older post of mine on similar topics here:

http://www.freerepublic.com/focus/f-news/1647824/posts

http://www.freerepublic.com/focus/f-chat/1628444/posts

As a self-professed Standup Philosopher (all S.U.Pers are BS Artist even though not all BS Artist are S.U.Pers) I value getting learned criticism. ^_^