Skip to comments.Do the People really establish their government or ...
Posted on 08/02/2009 7:05:19 AM PDT by Rurudyne
Do We the People really establish our government or is the government 'self-establishing'?
Let me explain the basis for the question.
The 10th Amendment is an interesting article because of more than just the fact that it advances the idea of delegated powers. Certainly it reserves any powers not so delegated to the several States excepting those few expressly forbidden to the States in the federal Constitution. Most of the time when people talk about the 10th Amendment this is as far as it goes where their presented logics are concerned and they essentially fail to address the full aspect of the article: that powers are reserved to the people too.
I have neglected this aspect of the article in the past; however, there comes a time when you get tired of presenting the same old 'States Rights' arguments ad infinitum. At such a time I finally looked to this often neglected aspect of the text and found something ... important.
Something that raises the question of how governments are established among men.
Consider for a moment what it means to say that powers are reserved to the people in a document that delegates powers to a Government.
Clearly, in light of Article 5, these powers would be those that the people have not yet incorporated or delegated to the federal government. The idea of unincorporated powers strikes at the very heart of the origin of governing authority in the United States.
I should point out that the Framers were very comfortable with the idea of unalienable rights established in natural law by a Creator God no matter if they were among those infamously hostile to Scriptural Christianity or else equally partisans of the Gospels. As such, and in keeping with the idea advanced in the Declaration of Independence that the legislative power may at times even revert to the people when it is sorely neglected, we can see how the insistence that powers are indeed reserved to the people was hardly a new idea.
Simply, an unincorporated power is that which the people have not lawfully delegated to a government according to proper procedures as set forth in Law.
This is why the 10th Amendment, though generally the logical grammar for the whole of the Constitution to which it was amended, would have likely appeared in Article 5 had it been there at the beginning (i.e. it speaks to the source of any powers that future amendments may delegate to the federal).
Yet the 10th and its reservation of powers to the people also has relevance to the several States for it also speaks to the Framer's expectations concerning how the States too came by their powers. So the formula should be seen as a general principal in American governance: that the people retain all powers they do not lawfully delegate to some government.
Also, that the act of delegating a power to one government, say the federal for national defense or else to a State for local law enforcement, says nothing about if such grants of power are general to all applicable governments under the 10th Amendment they expressly are not. Powers not delegated to the federal are retained by others besides it.
So when it is said that people establish their government it means exactly this: they delegate Powers to it through some set procedure that is deemed lawful and otherwise retain all unincorporated powers to themselves and the future.
Here I will turn to the words of Chief Justice John Marshall from Marbury v Madison for further clarification of this principal:
The clarification I sought was this: the anticipation that the establishment of a Government was in and of itself a permanent gesture that affects not merely the current generation but also all future generations.That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.
Consider the highlighted text in light of this essay.To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
I placed this in "activism" because it is activist: I'm essentially threatening the very basis on which this current administration of laws is deemed proper and by which the so-called progressives are able to do their thing AT ALL.
Or at least such is my intent and hope.
I would also like to point out my belief that what Marshall wrote in Marbury has actually been grossly misrepresented: that the actual opinion demands a methodology for judicial review rather than merely "establishing it". This can be demonstrated by the fact that Marshall himself pointed out in the body of the opinion that if judicial review was proper or not had actually been addressed by a PREVIOUS Case.
We know how government works.
People with lots of money use empty suits as sock puppets.
Voters are given the lousy choice of lose their liberty right away or lose their liberty gradually.
Meanwhile each new law makes the money guys more powerful.
But I like how it squarely puts [Federal] Government’s assuming of rights into the context of assuming rights that are not delegated to it.
There is a word for that, if it is a material item: theft.
There is a word also for the illegitimate taking of authority: mutiny.
Correctly seen, the encroachment of government on the Rights of the People IS grounds for the People to defend themselves; even homicide is acceptable when it is done to protect someone’s right-to-life. (”You always have the right to defend yourself. You always have the right to defend US and coalition forces.” — Portion of the standard ROE in Iraq)
I have some friends who like equality: .22, .357, .410, .45, 12 ga, 5.7x28...
Regarding the question: Do We the People really establish our government or is the government ‘self-establishing’?
I would consider changing that to: Do We the People really establish the Federal Government or is the Federal Government ‘self-establishing’?
Reason: Clarity. You seem to be writing about the Federal Government, not State and Local Governments. Of course the question is applicable to State and Local Governments, but the essay doesnt seem to go there. People speak of the government as if were a seamless whole but its not (not yet anyway).
And Im not sure about use of the word establish.
Government is never self-establishing in that in the beginning some person or people always decide to initiate or impose it. On the other hand, like a fire that has been established by someone, unwatched government can get out of control and establish itself in areas where it wasnt before and where it isnt wanted.
And then theres this:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people and 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.
Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?
Like many other Freepers, I have taken an oath to “preserve, protect, and defend the Constitution from “...all enemies, foreign AND DOMESTIC.” Most of this group did so just once, in the form of an oath of enlistment. I, and others, also took an oath of citizenship. And many have also taken such an oath as an elected, appointed, or commissioned government official.
And now the question - was there a time limit on that oath? Were we - any of us - ever relieved of the obligation that oath represented? Did I somehow fail to receive the official notice that I could now leave those tasks to my elected representatives? Please, if any of you have that letter, would you post it here so I can lay my burden down?
An inherent problem with the US constitution is that, while it establishes many means to restrict the growth of the federal government, it provides few undramatic means to prune the excessive growth of government.
In other words, the individual States need some means by which they can calmly dismantle unauthorized and unruly actions by the federal government.
One means *did* exist, that provided an effective check on the federal government. This was the selection of US senators by the individual States. But this was thwarted in 1913 with the 17th Amendment, after ratification by the States, with the direct popular election of senators.
So the individual States, in a fit of populism, stripped themselves of the means by which the could control an ever invasive and out of control federal government.
Today, with this large number of 10th Amendment resolutions being drafted by the States, since the federal government is ignoring this plea, the next, least dramatic action by the individual States should be the repeal of the 17th Amendment.
The alternative would be for 3/4ths of the States to call a constitutional convention. And as dramatic as this sounds, in a time where federal extravagance has gone beyond the pale, with a complete economic collapse, there may be no other choice.
So a repeal of the 17th Amendment would be the much preferred option. Likely this would mean that 1/3rd of the US senate would be confirmed or replaced by their home State legislature in the following three federal elections.
Republicans don't care either. If you polled Republicans, and told them that to follow the Constitution, you have to fundamentally change US foreign policy and its implementation, eliminate social welfare programs entirely (not just control their spending), and get the feds out of just about everything they are doing now in labor, education, energy, just about everthing they now do.
No Social Security? Medicare? Student loans? Foreign aid? Undeclared wars? WWBKS? (What would Bill Krystol Say?) Answer: "No, we can't do that, we are a modern world power. We just have to rein in government a little, not weaken it. (By the way, that Obama, he cuts quite a figure)"
To return to first principles could frankly not be accomplished without a revolution and restoration. Through the political process, the best you can hope for is a conservative parachute placed on a socialist dragster hell bent for the finish line. And even that parachute is in jeopardy, thanks to Obama's authoritarian rule.
So the question I have is, "Who cares"? You might as well create a "SimUSA" with alternate versions of the country, it would be just as relevant. Unless you are willing to combine theory with action.
I agree with this analysis of the intent, by the way, and am not intending to be grumpy, but just pointing out that 90 years of encroaching fascism has led to a system that is not subject to being changed, even if James Madison himself came back from the dead and told us to. Nobody cares what the constitution says anymore.
So, now that your 1st amendment rights to speech and to petition the government for a redress of grievances has been trumped by cold, hard cash, what else do you have at your disposal to enforce your rights? (Hint: What comes after the 1st.)
And now the question - was there a time limit on that oath? Were we - any of us - ever relieved of the obligation that oath represented? Did I somehow fail to receive the official notice that I could now leave those tasks to my elected representatives? Please, if any of you have that letter, would you post it here so I can lay my burden down?
This is the only thing I can offer you:
LOL I was just about to look up that book until I realized that you were just suggesting a title. I hope someone writes that book soon!
>So a repeal of the 17th Amendment would be the much preferred option. Likely this would mean that 1/3rd of the US senate would be confirmed or replaced by their home State legislature in the following three federal elections.
I would also like an amendment which forbade the government / congress from spending monies not in existence... the Constitution allows for the minting of silver or gold coinage only... perhaps the federal government should be forbidden to use EFT, Check, and Credit Card. By making our money a physical thing they could not as easily spend money we do not have. (States, however, would not be so constrained.)
>No Social Security? Medicare? Student loans? Foreign aid? Undeclared wars?
Sounds GREAT to me!
>Nobody cares what the constitution says anymore.
See the link at Post 11.
By means of ordinary statute: no."Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?"
This is actually the clearest statement made of the intent and function of the language in the "privileges or immunities" clause of the 14th Amendment."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 reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment."
This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded."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.'"
Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?
I absolutely agree that the 17th was a disaster.
All in all, 1913 was a BAD year for the Republic.
Ok, don’t get me wrong, I am not cross with you but it seems to me the more the government can turn the people into masses of intellectually lazy phlem, the better for them...
Our system allows us to prune the government every two years...
Apparently, a concept lost (or at least ignored) by some...
“When in the course of human events it becomes necessary...” lalala...
I think the premise of that dramatic statement is getting close for some, yet the simple solution I mentioned above is lost sometimes even to them...
Even though you could count on me to do my part, in either senario...
But I will offer this...The message in 2010 could really start here this year with local and other state elections...I’ve been trying to pound that idea from way back before the elections last year...
I want people to prove me wrong, show me how committed you are to the process...If it doesn’t work, well then, I wonder who we have to blame for the future then???
I think it would be absolutely outstanding to send all, if not a few of these pains in our arses home, forever...
To me the best way to hurt a politician is to send them home, fire them...
But again, this is just my opinion...
BTW, that is a great essay by the original poster, one that needs further study...I’m not looking to throw rocks at it at all...
Me too. I’m a strict constructionist who favors limited government as limited by the enumerated powers of the Constitution, and not as amended by judicial fiat over the past 90 years (ever since Teddy Roosevelt and the ascension of the Progressive movement into the Republican and Democrat party in various guises.)
Thanks Rurudyne. 10th Amendment topic.
Elections are great, if they are fair, but they aren’t. To start with we are burdened with political parties that are extra-constitutional. Note, I didn’t say unconstitutional. However, over time, they have used the two party system to exclude the possibility of any serious third party.
Then, in many States, we are also burdened with open primaries, which are now openly manipulated by both parties to produce less effective candidates.
As an example, John Murtha faced a serious challenge to his seat from a Republican, so he asked two Democrats to change their party affiliation and run against that Republican in the open primary. Then Murtha, unchallenged in the Democrat primary, asked Democrats to vote for one of the two faux-Republicans.
Then the one faux-Republican who won the Republican primary stopped campaigning against Murtha, guaranteeing him reelection.
This effectively disenfranchised all the Republican voters in his district, even though the Republican candidate was ahead of Murtha at the beginning, and would have won in a fair race.
And there are many more dirty tricks, done by both parties to ensure that incumbents are reelected, that money decides the outcome of races, and that those who support federal power are chosen at the expense of those want a return to constitutional principles.
And, with the 17th Amendment, the States are as powerless as are the people.
You’re assuming that our votes actually mean something.
I am not so sure that they do; given that they are passing legislation where their constituents are calling/faxing/e-mailing en masse, they are passing legislation without READING it, AND above all we now know that the 1st Amendment guarantee to peaceably assemble and present grievances to government is subordinate to permits...
I doubt the Post Office would allow us to show our disapproval by sending them a live bobcat.
No, the way they are ignoring everyone who, even not disagreeing with them on principal but instead, asking them to proceed prudently (IE at least be informed/competent enough to READ the bill before a vote!) then I think that it is unavoidable that conflict should arise; if things do not change course there will be bloodshed.
..You’re assuming that our votes actually mean something...etc...
= = = = = = = = = = = = = = =
I used to use a tag line “If voting really meant anything, they wouldn’t let us do it”
..You’re assuming that our votes actually mean something...etc...
= = = = = = = = = = = = = = =
I used to use a tag line “If voting really meant anything, they wouldn’t let us do it”
I have read both of your detailed and thoughtful responses to my question, and I must say that I will need to spend some time and attention digesting these treatises.
I greatly fear that a majority of our “public servants” have decided for themselves to replace “servant” with “commander” or “custodian” or more plainly, “prison guard”.
Lindsey Graham provided the single Republican vote needed to pass the Sotamayor nomination out of committee. That vote was a LOT MORE of a betrayal that just an inexplicable bad decision. I read recently that without at least one minority vote, the nomination would have to go without a recommendation for approval. That minority vote was originally going to come from the usual turncoat, Senator Specter, but when he changes sides they needed a substitute and Senator Grahamnesty stepped right up.
Lamar Alexander voted FOR the “porkulous” bill - one of three Repubs. He claimed that it provided essential benefits for Tennessee that made his vote necessary. I told him that NOTHING justified trying to buy my vote with my own money.
Not long after, he voted FOR CLOTURE on the nomination of Harold Koh to State Dept legal counsel, and then cast a MEANINGLESS vote against the actual nomination, which passed easily. But since that vote, his office flunkies are insisting that he voted AGAINST the nomination. When I verified my original accusation, I called back to call them - and the Senator - the liars they certainly are.
I intend to visit every public appearance of every congresscritter I can afford to during this recess - with a broom and a “poop scooper” with signs attached to let them know what they face if they continue their arrogance. I hope others will do the same.
You may be right about that...
Lemme ask you this...
Do you hope you are wrong about that??? Even though it is a well formulated theory???
When I tell people what I think about this issue, and I tell folks that I believe a majority of Americans are so intellectually laxy that they couldn’t tie their shoes without permission, and some sort of assistance from the Federal government...
I hope it spurns a response that “Ok, I’ll show you!”
Thats what I’m looking for...Play that little reverse psychology thing on them and see if it spreads...
If it works on children, then I’m thinking it might work on our voting age populace...
You know you bring up a good point about the whole reading, or not reading the bill, then voting on it issue...
My US Congressman is quite consistent when it comes to knowing the basics of a bill even if they are not even given a chance to read it...He’ll go the way I would if I voted on it...
The probnlem I have with even that is if the bill is a bad bill, and you vote against it, even if you haven’t read it, is that even the right thing to do???
I’m not saying abstain from the vote, or vote “present” like Obama liked to do at one time...
I wonder of a failure to maintain a quorum could really be a basic form of putting the skids on something like this...
Just shooting from the hip...
What do you think???
You and OWShark bring up some good stuff, I have to tell you...
In the case of the Murtha re-election (after all his BS we had to put up with), apparently nothing the democrat party did was a violation of the law...Everyone knows and understands what they did, and why...
The first thing is thst if Murtha was such an anchor to the democrats, if they were going to go through all this trouble to cancel out the Republican party candidate for that seat, why did they not just tell Murtha to step aside??? And put one of their goobs in the spot to replace him???
What amazes me about all of that is that the Republican party allowed those two democrat turned Republicans to actually get into this mix...
Seems to me if the goose is good for the gander, the Republican leadership should learn from this...
If our methods of selecting individuals to represent us has gotten this childish, maybe tossing the whole lot would be a good place to start...
I’ll tell you guys a little secret...We’ll all still get up in the morning, eat breakfast, go to work, laugh at the outcome of this...And at the end of the day, the sun will still go down in the west...And in the morning it comes back up in the east...
I believe our government for the most part is embarrasing us...It certainly is building itself up to be tyrranical, but it is extremely embarrasing to know that we have elected a bunch of children to run this show...And they are proving their worth everyday...
Time to spank the entire lot and send the home...
You have the right idea...Many more in your district need to show up and keep the pressure on till they correct themselves, or just flat out quit and let other folks in their that will do the job correctly...
An interesting essay I hesitate to comment on in my present(some might say more often than not) loopy condition. I've been following the "Kenyan" certifigate business most of my waking hours over the last couple days and am in no condition mentally to do justice to this essay. That said, my impression of Justice Marshall from what little I've gathered about him is that he was a bit of a bully, more interested in having his way than strictly interpretating his contract, the Constitution. IOW, somewhat of a loose cannon. Other's mileage will probably vary...
Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.
I've stopped scouring threads and unilaterally adding names to the ping list, so if you want on or off the list just say so.
Tenth Amendment Chronicles Thread
Tenth Amendment Center
The Right Side of Life/State Initiatives
Find Law(Brief narrative on 10th Amendment)
|CLICK HERE TO FIND YOUR STATE REPRESENTATIVES|
Excellent read and comments, and thanks for the ping BUMP!
Governments will inherently decay unless there are checks and balances in them. Even the Soviet Union had a “three legged stool” of the communist party, the KGB, and the red army. If one of the three became too powerful, the other two would team up and chop it down to size.
The US constitution with several balances of power. The one most people know is the executive, legislative, and judicial one. But right now the executive branch, and its immense bureaucracy, has become far too powerful. Congress has ceded too much legislative authority to the bureaucracy, and the judiciary has become a bully in its own right.
The real problem lies in a different balance of power, between the federal government, the individual States, and the people. Between the Civil War and the Civil Rights movements, the States lost most of their power. And their most important check, the ability to appoint US senators, was lost in 1913. This left them only the “unthinkable” right to call a constitutional convention.
The power of the people in the equation was also eroded with the use of federal largesse, buying votes to maintain ever growing federal power. So the people have been infringed upon most of all. At no time, short of a wartime military draft, was it intended that the federal government deal with the people directly. The individual States were our shield.
The States have been pushed so hard they are calling “enough” with these now majority of States 10th Amendment resolutions. But the federal government is unwilling, perhaps unable, to change itself. Its momentum has taken over.
With a grotesque economic collapse, though, the States may finally be forced to call a constitutional convention, which on reflection is not as traumatic as it sounds. For the convention remains in effect until it either ends its own mandate, or 3/4ths of the individual States agree to its changes.
Likely, such a convention would have to be held in sequester on a major military installation, prevented from contact with any number of villains who would seek to manipulate it. And even the soldiers of the army guarding it would each be re-sworn to uphold and defend the constitution.
Each State would send two delegates, chosen by the State, not by a popular vote, unless the State agreed to that.
The US government would be a caretaker government, and could not legally vote to tamper with or stop the convention.
Likely, the States would insert a balanced budget amendment, with strict limits on evasion. Much legal precedent would be swept aside, and judges could no longer order States to spend money. The size of the government would be radically reduced. All taxes and efforts at spending within a State would have to go through that State government. That is, the States would pay all federal taxes, outside of international duties and tariffs. Though a federal lottery might be permitted.
The estimated time of the convention would be one year.
I would rather send them a live badger or a racoon in a box.
This reminds me of the assumption that the taxpayers pay for this or that with their taxes. Hayll noo, taxes are just to keep the schlubs in line. The REAL money is in inflating the money supply.
If it hasnt' been read, it should be voted against, because you don't know, even if you know the gist of it, whether there are some little gotcha's like "take granny out behind the barn and shoot her" in there.
I'm not being overly stringent, I don't think. Each of these critters has a staff, probably a large staff. If one of each of the critter's ten top people reads 100 pages and explains it to the critter, that's 1000 pages, and the critter can legitimately make a claim to have read it.
I don’t know about lettting the state govts appoint the delegates. In too many cases, the state govts are a big part of the problem. If this were going to happen, there should at least be enough of a lead time for the people of the state to make any “adjustments” in their representatives before the delegation took place.
Do you believe a “counsel” of Governors would be more accountable to the people???
If this were to happen, then ALL the Governors need to be on a two year election cycle...
I think state voters can hold a governor accountable for state matters and then national matters. Term limits at the state level would be beneficial as well. We DON’T want to empower the federal component of government. This would allow for a national consensus tied to the popularity of the governor. But, as the federal administrative unit would have no legislative or executive authority, it would keep any one popular governor in check... No more Pelosi terrorizing the Great plains...
I see the checks and balances we have now to be in collusion with each other...There is no checks and balances anymore...
A state call for a Constitutional Convention is the next step, but I believe it would be fraught with corruption and back room deals before it even the frist call to order...
Something is obviously wrong up there, and we are just now crcacking the surface of a lot of deeper issues and problems, which no one we have in place now seems to be too concerned about...
That attitude needs to change...If we can start sending people home this year, and put an exclamation point on it in 2010, then we may be able to head this thing off at the pass...
I know, a terrible cliche’ ;-)
Sure...But to do this ALL the governors have to be behind this...Some will not because they know what it will do to their buddies upstream in the Federal government...
I’d have to do a quick count, but the ratio of democrat governors to Republican governors is kinda interesting...
My Governor Rick Perry (currently a republican, formerly a democrat) has made noises about secession and states rights in the last few months, and he also has, it looks like, a serious challenge to his job this time...
He’s pulling the ole seige at the Alamo campaign trick...Leaning to the right, and the base of Texans...
More entertaining than effective in my book...He’s got bigger problems as far as I know...
I’m wondering if there’s any way at all for powers to be legitimately delegated. This article sets the statndard that powers cannot be incorporated unless there was some sort of process that was seen as being legal. Accept no process is ever seen as legal and perfectly legitimate by everyone. And that’s important because if “the people” are sovereign, we take it to mean all the people are sovereign every last one of them.
What about all the people who voted against ratification of the Constitution? Their sovereignty is to be sacrificed in favor of a legal proccess they never assented to? Might as well vote to strip people of their sovereignty by majority vote. What about people born after the ratification process, like me, who no one bothered asking? My sovereignty is forfeit upon my birth because I was born in a nation that got the support of some slice of “the people” some time in the distant past? I might as well never have had it.
In conclusion, popular sovereignty doesn’t exist in the real world, never did. It was a sop to the masses, something to make them feel the men protecting or cheating them (depending on the situation; mostly swindling) cared what they thought any more than the absolute monarchs. Legitimacy is a matter of practicality. Legality takes shortcuts, because that’s the only way to do it. Civilization continues to be a colossal swindle.
>Do you hope you are wrong about that???
That is a tough question... mostly because I see it more as a sort of “a stitch in time saves nine” type of matter, meaning that the longer it goes unchecked when things finally DO get to the bloodshed they will be that much worse.
The only way I see things POSSIBLY getting better is with the application of Justice; and I’m not talking the sissy slap-on-the-wrist type but the vicious sort of Justice that should accompany a massive accountability/responsibility failure. I do not think the country has the stomach for that sort of justice...
Also I think the politicians themselves are scared of that sort of justice because, by nature, their political positions mean NOTHING at all and are, in fact, shining indictments against them.
Take John Murtha for instance. He went on national TV and condemned marines defending themselves in a war-zone for war-crimes without trial or investigation. The court has decided that the law stating that a federal employee acting in execution of their office cannot have a civil suit filed against them applies to Murtha and, as such, the marines have no case against him for slander. There is nothing said at all about Murtha’s public denouncement as being “aid and comfort to the enemy” even though it very, very well could be because: it demoralized troops, it [incorrectly] validated/corroborated war-crime claims against our troops by the enemy, it showed that the representatives and senators are/were concerned with political posturing not supporting and defending the troops actually fighting (that by virtue of being a military-man Constitutional rights do not apply... even to protect those rights they are expected to die).
Given that John Murtha would likely get a guilty verdict for treason in a just trial, the judges exempting him from accounting for his very public actions could (and should) be tried for treason (and conspiracy against rights, and acting under color of law/office)... and it should keep going, demanding harsh punishments from evil men. (Including lives.)
It is my opinion that NONE of the three branches of Government want that sort of move for justice...
>Even though it is a well formulated theory???
Thank you... though I fear I have not adequately answered your question and, instead, side-stepped it.
I hear mink will take off fingers...
No problem...I believe we are on the same page...
This is one of the most serious discussions this website has had in a very long time...
The participants in this one are some of the most knowledgable and deepest thinkers we have around here...More are sure to join in...
The more we think outside the box, the better...
You did key up on one important thing...Politicians, whether you like yours or not, do not feel the pinch of accountability, and these townhall meetings wher people are finally getting engaged are scaring the livin’ poop out of these knuckleheads...
And that is EXACTLY what we need to do to them...
Unfortunately I cannot throw many rocks at my guy, he’s a rookie, but he is capable and his core values are in agreement with mine...Not the other way around...
Not everyone on the website has that luxury, and I truely hurt for those people because there is not much to be done, but hope someone steps up in their district and makes a go at the politicians that are not serving freedom, and our (citizens and States) rights in the pursuit of life, liberty and happiness...
I just had a conversation with my Dad a little while ago...
He believes it is getting very close to being time, unless we start sending that message (and it being well recieved) I was talking about earlier...
Otherwise, I believe it is time for states to reject Washington D.C.’s proposals...
The devil is in the details and how states will be able to do that is kinda up in the air...
States would need to set up thier own independent healthcare systems, the oversight, funding, etc etc...
States economies will have to sever ties with Federal oversight agencies, and setup separate revenue generating from the Feds to cover essentials of defence, promoting the general welfare, establish justice separate from the Feds...
Those foundations that the Federal side was supposed to be limitede to, will have to be hashed out very quickly...
Texas doesn’t have a state income tax, so that unfortunately will have to become a reality...Or not...I think we have some pretty clever folks doing their job in Austin that could do a good job in making the transition...
Yet if word got out that this was happening (or in development), somebody is going to have kittens about it...
I just get warm and fuzzies about it...But I am also not holding my breath...
Texas was doing ok as a separate Republic before it was begged to join the Union...Maybe it’ll take us to set the example once again how it can be done...
Like my Dad said, maybe it’s time...And he is not known for such drastic opinions...
To understand the reserved rights of the People, I believe you must go back to the second treatise of John Locke’s “Two Treatises on Government,” entitled “An Essay Concerning The True Original, Extent and End of Civil Government” which appeared in 1690. That, and its intellectual progeny, paint a picture of the world view embraced by the revolutionary colonists.
Locke believed that the natural state of men was a state of perfect freedom to order their actions and dispose of their possessions and persons as they see fit. Within the bounds of the law of nature, without asking leave or depending upon the will of any other man.” The law of nature referenced was that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions....” Should another transgress against him, the individual had the natural right to use force proportionate to restraint and reparation.
This natural state and natural law was the basis of compact to come together for better protection of each and every persons life, health, liberty or possessions to delegate that power each individual had in nature to a government formed for these purposes. A compact is not a contract but an agreement where each gives up or surrenders the same thing (natural power of force) in exchange for the same thing (greater security of life, health, liberty and possessions.) There is also an inherit balance between the thing surrendered and the thing received.
In 1778, the state constitutional delegates from various Massachusetts towns in the County of Essex wrote a declaration reacting to the constitution drawn by its own existing colonial legislature which explains this concept.
Excerpts from the “Essex Result,” 1778
“All men are born equally free. The rights they possess at their births are equal, and of the same kind. Some of these rights are alienable, and may be parted with for an equivalent. Others are unalienable and inherent, and of that importance, that no equivalent can be received in exchange. Sometimes we shall mention the surrendering of a power to controul our natural rights, which perhaps is speaking with more precision, than when we use the expression of parting with natural rights - but the same thing is intended. These rights which are unalienable, and of that importance, are called the rights of conscience. We have duties, for the discharge of which we are accountable to our Creator and benefactor, which no human power can cancel. What those duties are, is determinable by right reason, which may be, and is called, a well informed conscience. What this conscience dictates as our duty, is so; and that power which assumes a controul over it, is an usurper; for no consent can be pleaded to justify the controul, as any consent in this case is void. The alienation of some rights, in themselves alienable, may also be void, if the bargain is of that nature, that no equivalent can be received. Thus, if a man surrender all his alienable rights, without reserving a controul over the supreme power, or a right to resume in certain cases, the surrender is void, for he becomes a slave; and a slave can receive no equivalent. Common equity would set aside this bargain.
“When men form themselves into society, and erect a body politic or State, they are to be considered as one moral whole, which is in the possession of the supreme power of the State. This supreme power is composed of the powers of each individual collected together, and voluntarily parted with by him. No individual, in this case, parts with unalienable rights, the supreme power therefore cannot controul them. Each individual also surrenders the power of controuling his natural alienable rights, only when the good of the whole requires it. The supreme power therefore can do nothing but what is for the good of the whole; and when it goes beyond this line, it is a power usurped. If the individual receives an equivalent for the right of controul he has parted with, the surrender of that right is valid; if he receives no equivalent, the surrender is void, and the supreme power as it respects him is an usurper. If the supreme power is so directed and executed that he does not enjoy political liberty, it is an illegal power, and he is not bound to obey. Political liberty is by some defined, a liberty of doing whatever is not prohibited by law. The definition is erroneous. A tyrant may govern by laws. The republics of Venice and Holland govern by laws, yet those republics have degenerated into insupportable tyrannies. Let it be thus defined; political liberty is the right every man in the state has, to do whatever is not prohibited by the laws, to which he has given his consent. This definition is in unison with the feelings of a free people. But to return - If a fundamental principle on which each individual enters into society is, that he shall be bound by no laws but those to which he has consented, he cannot be considered as consenting to any law enacted by a minority; for he parts with the power of controuling his natural rights, only when the good of the whole requires it; and of this there can be one absolute judge in the State. If the minority can assume the right of judging, there may then be two judges; for however large the minority may be, there must be another body still larger, who have he same claim, if not a better, to the right of absolute determination. If therefore, the supreme power should be so modelled and exerted, that a law may be enacted by a minority, the enforcing of that law upon an individual who is opposed to it, is an act of tyranny. Further, as every individual, in entering into the society, parted with a power of controuling his natural rights equal to that parted with by any other, or in other words, as all the members of the society contributed an equal portion of their natural rights, towards the forming of the supreme power, so every member ought to receive equal benefit from, have equal influence in forming, and retain an equal controul over, the supreme power.
“It has been observed, that each individual parts with the power of controuling his natural alienable rights, only when the good of the whole requires it; he therefore has remaining, after entering into political society, all his unalienable natural rights, and a part also of his alienable natural rights, provided the good of the whole does not require the sacrifice of them. Over the class of unalienable rights the supreme power hath no controul, and they ought to be clearly defined and ascertained in a Bill of Rights, previous to the ratification of any constitution. The bill of rights should also contain the equivalent every man receives, as a consideration for the rights he has surrendered. This equivalent consists principally in the security of his person and property, and is also unassailable by the supreme power; for if the equivalent is taken back, those natural rights which were parted with to purchase it, return to the original proprietor, as nothing more is true, than that allegiance and protection are reciprocal.”
Justice Chase for the Court in Calder v. Bull, declared 3 U.S. 386 (1798):
“...I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State. The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require; nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded.”
As was stated in Munn v. State of Illinois, 94 U.S. 113 (1876):
“...When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. ‘A body politic,’ as aptly defined in the preamble of the Constitution of Massachusetts, ‘is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.’ This does not confer power upon the whole people to control rights which are purely and exclusively private, Thorpe v. R. & B. Railroad Co., 27 Vt. 143; but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non laedas. From this source come the police powers, which, as was said by Mr. Chief Justice Taney in the License Cases, 5 How. 583, ‘are nothing more or less than the powers of government inherent in every sovereignty, . . . that is to say, . . . the power to govern men and things.”
It is clear that the social compact as understood by our Founders describes the purposes to which government should be directed. The reserved powers of the People include those areas reserved from government, some of which are rights of conscience and several of which are expressed in the Bill of Rights. I believe some of these reserved are inherent in the compact that regulation shall not reach to control an individual except to protect the lives, health, liberty and possessions of the general population as a whole, where each individual would receive a benefit equal to others. This maximizes the liberty of the individual and protects him from the tyranny of the majority.
The constitution, as one Pennsylvania writer stated: describes the portions of power with which the people invest the legislative and executive bodies, and the portions which they retain for themselves.” Indeed it was “the particular business of a Constitution to mark out how much they shall give up.” It was “the charter or compact of the whole people, and the limitation of all legislative and executive powers.” So we have a reservation both to the subjects of government power and the form of the exercise of that power. Both appear to have been substantially exceeded.
1) support for limited governmentThese, I reason, are genuinely "liberal" in relation to vast swaths of human governance and the 'traditions' (if one could call them that) by which they have operated throughout much of history.
2) support for decentralized administration
3) support for constitutional authority for governance
4) support for a proper basis for laws founded, in the case of the American Republic, in our rightful common laws
1) support for potent governmentYou may see how what we call "liberal" and "conservative" in 21st century America is somewhat out of whack by these definitions.
2) support for centralized administration
3) support for arbitrary authority for governance
4) support for arbitrary basis for laws
In fact, the infamous and relatively well know quote from Marbury: "It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each." is actually lifted out of context and is presented as if IT were the actual foundation on which the opinion rest."This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list was a legal question, properly determinable in the Courts, although the act of placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in February, 1793, making it the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, commanding him to place on the pension list a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.
"The judgment in that case is understood to have decided the merits of all claims of that description, and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional in order to place themselves on the pension list.
"The doctrine, therefore, now advanced is by no means a novel one."
It is in how Marshall answers this question that we find what should be the true significance of Marbury v Madison."This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired:
"Whether it can issue from this Court."
On account of the latter the former can in fact be fairly paraphrased as:"Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law."
... and ...
"From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature."
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only past opinions and decisions of the Court.This is a fair paraphrase precisely because the courts are to be governed by the Constitution as the legislature is. So if mere statues, acts of Congress, are insufficient to practically alter the delegation of powers for the federal then how much less should mere opinions of the Court be likewise? Or else the courts are not governed by the Constitution but they instead are governors of IT.
The highlighted text in particular is fun. I've been using it to go after the Alternative Minimum Tax, the proposed income tax on people not buying heath insurance, and have even suggested what it might, and probably should, do to the progressive tax structure itself.We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) "the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union."