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 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."
Again, I (unlike the current President and ... just about every Democrat in Congress) always welcome criticism.
Ok, the begged question was 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? but I dont see that the people and/or the States retained right and/or reserved power to require part is clearly addressed. It seems to be just sort of assumed away with no more than mention of non specific objections and doubts. What did I overlook?
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?
I cant think of one.
That matter was addressed in the Declaration of Independence with the words: all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it
So, there is a Right of the People to alter or to abolish stated in the Declaration of Independence, which right would, I think, be one of the others retained by the people as stated in the Ninth Amendment.
And according to the First Amendment, the people have a right to petition the Government for a redress of grievances.
Accordingly, they could submit to Congress some form of petition for a redress of grievances said grievances being violation of unalienable rights by particular State governments and said redress, in accordance with the right of the people to alter being requiring the several States to respect unalienable rights that they should have honored anyway. (Stealing some of that from your post)
In Congress, the House of Representatives (on behalf of the people) and the Senate (on behalf of the States at one time but not now) would determine the merits of the petition and the disposition regarding redress.
That still leaves open the question of 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.
If the right exists, the disposition of the redress by Congress acting on behalf of the people and the States, could be to take action to alter State government by requiring the several States to respect unalienable rights that they should have honored anyway. If the right does not exist, Congress could take no such action legitimately and the disposition of the redress would have to be something else.
If the right does not exist and Congress could not act on the noted requirement, the people submitting the petition for redress of grievances would either have to submit to a government destructive of these ends or try to exercise their right to alter or abolish it. That could be defined as insurrection which might put Congress in the interesting position of providing for calling out the Militia to suppress an insurrection the aim of which was to alter or abolish a government that had become destructive of the ends it was supposed to secure and which Congress, as a branch of a government which is also established to secure those ends, is supposed to help secure.
If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?
The question implies Congress acting on its own initiative in regard to the pressing need. What might be sufficient is a requirement levied by the people if they have a retained right and/or reserved power to levy such a requirement.
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 former, "Privileges or Immunities",
I assume you meant "Privileges and Immunities".
“Convention” was an ancient term in English history, dating back at least to early medieval times. It was a special extraordinary assembly of the barons, clergy and/or the people called outside of the established Crown institutions. The 1688 Convention placing William and Mary on the throne was used as a precedent for the legitimate use of conventions when society was thrown back into a “state of nature” during revolution. The convention became incorporated into our various constitutions as an institutionalization of original consent.
(Reference: Gordon S. Wood, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1969.)
At the independence of the states, it was common for the existing assembly to form its own constitutional convention to devise and amend its own constitution. In Virginia, Thomas Jefferson raised an outcry against the existing assembly’s right to frame a constitution without a new election.
Following the May 15, resolution of the Continental Congress, a group of Pennsylvanian’s drew up a Protest to the Pennsylvania Assembly renouncing “the authority and qualifications of this House from framing a new Government.” (at 335)
Declared the author of “The Genuine Principles of the Ancient Saxon, or English Constitution,” if the constitution were to be a “sett of fundamental rules by which even the supreme power of the state shall be governed,” it must “be formed by a convention of the delegates of the people, appointed for the express purpose.” Only then would it be unalterable, “in any respect by any power besides the power which first framed it.” Only a convention could make the People of Pennsylvania a “legal people.” (at 337)
James Burgh wrote in his “Political Disquisitions”:
“ the people ought to provide against their own annihilation. They ought to establish a regular and constitutional method of acting by and from themselves, without, or even in opposition to their representatives, if necessary.” (at 323)
John Adams had encapsulated the salient concept by stating that the people were the “Source of all Authority and Original of all Power.” The eventual solution to the problem of distinguishing the higher law from statutory law was the establishment of the constitutional convention. (at 329)
Jefferson observed in his “Notes on the State of Virginia”:
“ that to render a form of government unalterable by ordinary acts of assembly, the people must delegate persons with special powers. They have accordingly chosen special conventions to form and fix their governments.” (at 309)
The early state constitutions continually faced legal challenges and were bolstered by proclamations, special requirements for voting majorities, approval by successive legislative sessions and other devices to distinguish the constitution from a mere legislative act.
In 1778, the Massachusetts “General Court” or legislature decided not to convene a constitutional convention - drawing up its own constitution to be “made Public for the Inspection and Perusal of the Inhabitants, before Ratification thereof by the Assembly.”
Different townships declared their specific displeasure with the 1778 constitution by forming a constitutional convention in 1779. The Massachusetts constitution of 1780 was the final result, declaring itself to be “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.” (at 289)
Bostonian Thomas Dawes in an oration stated:
” We often read of the original contract, and of mankind, in the early ages, passing from a state of nature to immediate civilization... And yet, the people of Massachusetts have reduced to practice the wonderful theory.” The people had “convened in a state of nature, and, like the ideas of the patriarchs,” had actually drawn and signed “a glorious covenant.” (at 289)
Thomas Tudor Tucker in a 1784 pamphlet entitled “Conciliatory Hints, Attempting by a Fair State of Matters, to Remove Party Prejudice” wrote:
“The constitution should be an avowed act of the people at large. It should be the first and fundamental law of the State, and should prescribe the limits of delegated power. It should be declared to be paramount to the acts of the Legislature, and irrepealable and unalterable by any authority but the express consent of the majority of the citizens collected by such regular mode as may therein be provided.” (at 281)
The issue of State sovereignty and the integrity of the Union was answered by reference to the locus of sovereignty with the body of the people As stated by Chief Justice Marshall in M’Culloch v. Maryland (1819):
“...In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument not as emanating from the people but as the act of sovereign and independent states. The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.
“It would be difficult to sustain this proposition. ...The Convention which framed the Constitution was indeed elected by the state legislatures, but the instrument, when it came from their hands, was a mere proposal, without obligation or pretensions to it. It was reported to the then existing Congress of the United States with a request that it might “be submitted to a Convention of Delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.”
“This mode of proceeding was adopted; and by the Convention, by Congress, and by the state legislatures the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject-by assembling in convention.
“It is true, they assembled in their several states; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments.
“From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ordained and established in the name of the people; and is declared to be ordained in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity. The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people.
“But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties.
“It has been said that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted had it been created by the states
“The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty created by themselves. To the formation of a league, such as was the Confederation, the state sovereignties were certainly competent. But when, in order to form a more perfect union, it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all.
“The government of the Union, then (whatever may be the influence of this fact on the case), is emphatically and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them and are to be exercised directly on them, and for their benefit.”
"Ok, the begged question was 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? but I dont see that the people and/or the States retained right and/or reserved power to require part is clearly addressed. It seems to be just sort of assumed away with no more than mention of non specific objections and doubts. What did I overlook?Sorry that I wasn't clear. Like I said, criticism is welcome. It's also frequently useful as in this case. I'll try to do better.
You’re spot on.
The people give consent to the federal government gaining powers (or loosing them) by means of the amendment process.
Of course Congresscritters these days don’t need no stinkin’amendments!
POTUScritters and Courtcritters too, unfortunately.
Thanks for posting those!
Anyone reading Marshall when he spoke of the original right of the Framers or their theory of written constitutions would do well to also look up the like.
Two other things: I don’t know if we’re yet in a “state of nature” but there seems to be a lot of bears in them woods.
Also: “No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass.”
Wonder what they’d think of this lot of Congresscritters?
I did look at post 16. I never went down the Pand I rabbit hole, so I am learning from you on that. My work was primarily in pivate property rights as I was in the natural resource industry advocacy field.
Ok. I was more interested in what precedes and results in the “no” than what follows and results from the “no”.
Now I intend to try to examine more the very interesting thread you started.
Question. Can we live without lawyers, or without doctors? Current bills seem to support the former. Tort reform as health care reform would benefit the latter.
My longer distance friends are .223 and .308 and they are among my best friends...along with closer friends like .44 Mag and 12, ga.