Statutes do not trump law...
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.
Anything not in Art 1 Sec 8, the FedGov isn't supposed to do. Anything not protected by the BoR, or previously assigned to the FedGov by Art 1 Sec 8, is up to the State and it's citizens.
At least, that is how it is SUPPOSED to work. When you start ignoring things like Art 1 Sec 8, or Art 6 para 2, or "shall not be infringed"... Anything goes.
He mentions "in time we must repeal hundreds if not thousands of laws" if we are to regain our freedom. This is the problem. It's NEVER going to happen through normal legislative process. Laws of any scope are rarely EVER repealed and somehow we are going to do this by the hundreds or thousands?
It will never happen and thus we will NEVER regain our freedom if we frivolously continue to fight these laws and regulations one at a time.
My opinion is it's time for a Constitutional Convention. If you are interested in this topic there is great information at
http://goldwaterinstitute.org/article/amending-constitution-convention-complete-view-founders-plan-part-1-series
Download the .pdf it's a great educational read
In today’s world of politically correct dumbed down education systems, and the rarity of meaningful historical study, the prescience of the Founders’ insight and wisdom would seem almost mystical to younger generations. If that were any longer a course of study.
“Those who cannot remember the past are condemned to repeat it.”
— George Santayana in ‘The Life of Reason’
Congress would do well to comb through the rooms full of laws and begin to reduce them by about 500 per year, until the books of laws is reduced to one shelf.
It’s not the number of laws, it is that the idiots in DC never leave and have to live under them. I wish we had term limits and make those politicians obey every law and then we would have many less for us to uphold.
In short, government tends to grow. The constitution provides a framework for that growth, but has the flaw that the only way for major “pruning” to be done to that growth is via a constitutional convention, or a revolution.
This problem has been exacerbated by the 17th Amendment, which took away from the states any control they have through the US senate, to limit federal growth. But since senators adore this lack of oversight by their states, they will never agree to repeal the 17th Amendment.
So a way to go to the heart of the problem, to create a safe way of pruning federal power, is to create a sitting body representing the state legislatures, as a permanent pruning mechanism. Unlike a risky constitutional convention, they cannot add to federal law, they can only subtract from it.
The way to do this is to create a “Second Court of the United States”, superior to the Federal District Courts but inferior to the Supreme Court, which will act as a check on them.
This 2nd Court will not be a federal court, however, but will be composed of two, state legislature (strictly, no democratic vote allowed) appointed state judges, on terms parallel with their two senators.
In that it is not a federal court, it will not determine the *constitutionality* of court cases appealed from the Federal District Courts, but their *jurisdiction*. If they should have been federal cases in the first place, or if they should be returned to the individual states for them to decide.
Otherwise, the 2nd Court would have original jurisdiction over all lawsuits between the states and the federal government. This would mean that the states, not the federal bench, would decide such cases first.
So how does this prune the federal government?
To start with, there are a large number of federal judges who can “federalize” local and state court cases simply by deciding there is a federal issue involved. This has resulted in an enormous amount of “legislation from the bench”. But there is no mechanism for such cases to be “de-federalized”, as “not within federal authority”.
So the 2nd Court can read the opinions about the constitutional arguments from the lower federal appeals courts, yet reach their own determination as to whether what is being argued is a federal issue, or a state issue.
Some 8,000 cases a year are appealed to the SCOTUS, which instead would first go to the 2nd Court. And since the SCOTUS can only decide a fraction of those 8,000 cases, those it rejected would *first* be returned to the decision of the 2nd Court. Only if the 2nd Court had decided that it was a federal matter, would the case be returned to the decision of the Federal District Court from which it arose.
The end result would be a LOT less “legislation from the bench”. It could also wipe out vast amounts of “federal precedent”, by effectively saying, “We don’t care how long the federal courts have been hearing these cases. They just are not federal issues, so leave them to the states to decide.”
Just as importantly, lawsuits between the federal government and the states are very burdensome. They must be heard by several appeals courts in a time and money consuming process, but all too often must be decided by the SCOTUS.
So by sending such lawsuits to the 2nd Court first, the states could both tell the federal government to “back off”, or even sue over federal impositions that have been around for decades.
I truly doubt the states would agree that the Interstate Commerce Clause applies to intrastate commerce as well, nor that the General Welfare Clause means that the federal government can create a welfare state. No matter *what* Nancy Pelosi thinks.
Importantly, in this way it would be acting like a “safe” constitutional convention. That is, if a simple majority of judges (51) decided to overturn a federal law, the SCOTUS could overrule them. But if 3/4ths (76) of the 2nd Court decided to overturn a federal law, the SCOTUS could not overturn their decision, because it would be, in effect a constitutional change, but without changing the constitution.