Posted on 09/19/2003 10:05:29 AM PDT by Sir Gawain
You're so full of it. Try Crosskey's Charles Fairman, "Legislative History," and the Constitutional Limitations on State Authority, 22 U. Chi. L. Rev. 1, 2-119 (1954), for starters. Or Michael Kent Curtis if you prefer something more recent.
Precedents such as this are not actual pieces of law. If they were, then we can now say that what happened in 2000 is now perfectly valid, because it's a "precedent". Absolutely nothing in the Constitution gives Congress the power to be involved in choosing electors (except by setting the times of their choosing and their voting), or to vote in their stead (except when the electors have no majority).
FLorida did have a procedure, but it clearly failed.
Florida had a procedure, and Al Gore didn't like the result. There's no "failure" beyond that point. But if what you're saying is true, that according to the procedure laid out by the Florida legislature (which you've apparently studied in detail) no electors could be decided on, then no electors had the power to cast votes, and any votes that were sent to Congress from that state had to be completely disregarded. There's no further option beyond that.
A_G, I have the utmost respect for your knowledge on Constitutional matters but my book says :"The Federalist consist of 85 essays that originally appeared in several New York newspapers between the autumn of 1787 and the spring of 1788".
It sez several news papers so if that is wrong, you need to give me a reference or two.
Oh quit with the weasel words. Berger and Curtis have been going back and forth on this for years. It's a long-standing argument. Pretending that there's only one side is dishonest.
BTW, are you still pretending that the intent of the 14th's authors is irrelevant?
However the Constitution was ratified by the individual States as a limiting document on the Federal Government - the exact opposite of what Madison wanted.
Had the document been presented to the individual States as a blueprint for what Madison advocated it never would have been ratified.
Just look at the concessions made regarding the insertion of the Bill of Rights prior to ratification.
Do you approve of what our benevolent government has become? Are you truly a fan of Madison and a powerful central government?
It sez several news papers so if that is wrong, you need to give me a reference or two.
Sorry, you are absolutely right, My apologies for my own mis-impressions and thank you for the correction. Keeps me on my toes and humble. Kick my-self in the rear a couple of times again, to make sure I check everything and allow no assumptions.
Just goes to show that everyone has preconceived ideas that foster laziness and get in the way of solid scholarship, I should have looked closer at their origins rather than just reading the essays. I was under the impression from somewhere, that one of the papers that participated in the series of essays was called the "Federalist" from whence the name was derived. Unfortunately, relying on that faulty impression, led me astray.
Knowing that the Constitution is by no means a "Federal" institution by operation today or even back then, I never bothered to really read about who actually published the original essays. There are really very few areas in which the National government acts in a FEDERAL mode, The national govenment does not operate by dictating to states by authority of law (i.e. a FEDERAL government) so much as it hooks them with tax dollars and threatens to take away grants to states when they don't to the line. Its authorities are much more oriented to the individual than a classical "Federal" government would be as was clearly pointed out by Madison and can be seen in actual statutes on the books which act on individuals & "persons" as opposed to State governments.
Here is an official statement of the origins of the Federalist Papers.
The Federalist, commonly referred to as the Federalist Papers, is a series of 85 essays written by Alexander Hamilton, John Jay, and James Madison between October 1787 and May 1788. The essays were published anonymously, under the pen name "Publius," in various New York state newspapers of the time.
The Federalist Papers were written and published to urge New Yorkers to ratify the proposed United States Constitution, which was drafted in Philadelphia in the summer of 1787. In lobbying for adoption of the Constitution over the existing Articles of Confederation, the essays explain particular provisions of the Constitution in detail. For this reason, and because Hamilton and Madison were each members of the Constitutional Convention, the Federalist Papers are often used today to help interpret the intentions of those drafting the Constitution.
The Federalist Papers were published primarily in two New York state newspapers: The New York Packet and The Independent Journal. They were reprinted in other newspapers in New York state and in several cities in other states. A bound edition, with revisions and corrections by Hamilton, was published in 1788 by printers J. and A. McLean. An edition published by printer Jacob Gideon in 1818, with revisions and corrections by Madison, was the first to identify each essay by its author's name. Because of its publishing history, the assignment of authorship, numbering, and exact wording may vary with different editions of The Federalist.
You are indeed correct, even more so as neither of the original New York papers in which the Essays appeared had a name even remotely related to "Federalist".
Do you approve of what our benevolent government has become? Are you truly a fan of Madison and a powerful central government?
I just look for how the Constitution was represented and sold to the public at the time of its ratification by its proponents, and characterized by its detractors.
That does not make me a fan of powerful centeralized government, It makes me merely an observer of the fact that we have a government designed from the beginning to act upon the individual as opposed to acting upon the States to achieve its ends. That meets the definition of "National" government. Acting upon State governments to effect ends with States acting soley upon the individual is the operation of a "Federal" government.
The Constitution was ratified with the expectation that it would be a limited government directly impacting on the individual concurrent with state authority, more than it would be acting through e State governments, and that is how it has predominately acted up to this day. Where impact on States is observed he central govenment's usurptions into local government comes more from fiscal coecions rather than exercise of law. (e.g. threatening states with witholding of tax moneys if they don't toe a particular line.) That is a National government using the backdoor to effect "Federal" goals.
I do not approve of the Federal usurptions, and the limited National form is necessary for survival of the union, (as clearly demonstrated in the failures of the Articles of Confederation) but must be held limited to those authorities clearly enumerated in the Constitution.
My overriding concern is that one cannot expect to correct faults or put a monster under control unless you truly understand what you are actually dealing with. How do you correct a problem in government without even knowing the current state of that government and without understand of the ramifications of the constitutional law one is actually dealing with.
There are two many running around upholding what amounts to principles more suited to the Articles of Confederation as though they were the Constitution. They are not the same nor were the intended to be by the Drafters of the Constitution. To not recognize the difference or to attempt to treat the Constititution as though it were the Articles is just a sure way to failure to achieve any change to the law or conditions we deal with today.
The road to more personal liberty and smaller centeral government demands Constitutional amendment, not merely returning to some principle that fails to have any realization in the Constitution as it exists and has existed since its inception.
There is a fundament error in how we view the Constitution, and what it authorities and real limits are. As a concequence we do the wrong things trying to get out of the trap wondering why we only find the Constitutional noose tightening around our necks as we struggle.
Wake up folks, the problems you rail against are not with our Representatives (they are us), they are endemic the the very form and fabric of a Republic with democratically elected representatives.
The disease of the democracy, with modern communications, make the entire nation a small locality with all the problems of faction and demogoguery forseen by the founders when they attempted to distance us from pure democracy through the artifice creating a Republican form of government. The problem was exacerbated when the Senate became a directely elected body of the people and sounded the death knell to any semblance of states operating independantly from a central government providing some protection to the people of the states from National predations.
And it doesn't matter where one intends to return as a permanent home, that is what's known as one's domicile. Domicile and residence have legal significance and consequences that are totally separate from one's citizenship.
Citizenship is a permanent condition of allegiance that once acquired cannot, with rare exception for a naturalized person, be removed by government. One illustration would be the entitlement of constitutional protections to citizens taking up arms against the United States in a foreign land, eg; that fellow Lindh. Thus, while such persons may suffer the consequences of their criminal, even treasonist, conduct, they may not be deprived of their rights as a citizen.
Those same constitutional privileges, immunities and protections are incumbent upon aliens, even the illegal type, so long as their apprehension for criminal conduct is effected within any geographic place subject to the jurisdiction of the United States. An illustration of that would be the frequent prosecution of illegal aliens charged with violent crimes vis-a-vis the equally chosen option of the government to deport such aliens for crimes that do not include violence or great community interest. Those prosecuted have the full panoply of constitutional protections because of the jeopardy of deprivation of life or liberty. The government's choice of deportation does not because the same jeopardy is absent.
The contemporary issue of aliens apprehended while engaged in hostile acts against the U.S. in conjunction with a program of terror or act of war, may--or may not--permit the invocation of constitutional protections. Those tough legal issues surrounding those persons described as "unlawful combatants" have been the subject of much discussion, after dinner speaking presentations (that I have done some of) and scholarly writings. The questions of citizenship, residence or domicile do not even approach this latter situation.
I think the relevance of this discussion to the Fourteenth Amendment properly stops at the plain words of the Constitution itself. The reference to "persons" is a clear mandate that the provisions of the amendment are not limited to, nor is it concerned with, limiting the protections, rights, immunities thereunder to those individuals who are also citizens. The rationale' is focused on the potential end result of the myriad factual situations to which it would apply. Example, the child born of an illegal immigrant mother is, by virtue of its birth, a citizen of the United States--and for whatever value it may have, also a citizen of the state of birth. Another example, any person apprehended for the commission of a crime, irrespective of personal legal status, is entitled to the equal protection of whatever laws would be applicable to a similarly apprehended person who was a citizen.
The often raised assertion of the amendment's lack of ratification or non-lawful existence can be an interesting legal conversation for third year law students over some beers at the local tavern across from the campus. But as a serious constitutional consideration it is a meaningless exercise that is devoid of even a scintilla of relevance or merit.
Those who relish the opportunity to postulate the existence of all manner of conspiratorial and sinister theories of lawyers, judges and the courts delight in citations to fervently written yet notoriously unscholarly and unsupportable dissertations that zealously wish that it were so.
It's the invocation of a device of advocacy often engaged by lawyers when they have nothing to support their argument but very eagerly wished-for acceptance of their assertions. The device is described as: " When you have the law on your side, pound on the law; when you have the facts on your side, pound on the facts; when you have neither the law nor the facts on your side, pound on the lecturn." What is offered as authority for the absurdity of the assertion of the Fourteenth Amendment's fraudulent place in our jurisprudnce is a patent illustration of 'pounding on the table.
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