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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:

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.
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.

Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.

This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the federal (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.

So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves — unincorporated.

This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.

Now comes the rub, and please bear with me as I again turn to Marbury:
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.
Consider the highlighted text in light of this essay.

What is happening when the legislature enacts some law for which it has no delegated authority?

It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.

Can the Congress lawfully do this anyway? Is it not an elected body representing the people?

If a legislature, or an administrator or a jurist for that matter, can claim by right of representation ability to further delegate powers on account of statutes but not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.

Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the federal at the time.

Or even possessed by a State when dealing with electing a State representative.

So when a government takes upon itself to alter its powers it is in fact a self-establishing entity.

Thus we see the truth behind what Chief Justice Marshall wrote: "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."

The illimitable power is precisely the power of any government that is self-establishing and which has no need of some extraordinary procedure such as an amendment process.

Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.

So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.

Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many.


TOPICS: Constitution/Conservatism; Government; Miscellaneous; Politics/Elections; Your Opinion/Questions
KEYWORDS: 10thamendment; chat; essay; federalism; statesrights; wethepeople
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To: Rurudyne

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 don’t 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?

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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 can’t 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.

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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.

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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".

 


51 posted on 08/03/2009 8:40:34 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: Rurudyne
I am not a lawyer, much less a constitutional lawyer. Perhaps my understanding of political theory is too simplistic. At least the Declaration of Independence, which I know is not the same as the Constitution, based government upon the people's God given right to pursue happiness. It is to this purpose that the people allow themselves to be governed. Undelegated powers would in that case be the right of the people, not the right of the government. At least in theory, the government cannot usurp those undelegated powers without the consent of the governed. How this fits in with the idea of unalienable rights, that is rights that can't be ignored or revoked even by the governed or the government but are permanently established by the Creator, is beyond me.
52 posted on 08/03/2009 11:26:14 PM PDT by Nosterrex
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To: Rurudyne

“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.”


53 posted on 08/04/2009 12:46:44 AM PDT by marsh2
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To: KrisKrinkle
"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 don’t 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.

The whole thing was actually aimed at that question and the answer was: no.

That's why I built a basis to finally ask the question which you quoted: to demonstrate the above negative answer.

As for you repeated question: in such instances as when a State disparages our "P&I" under A4:S2:C1 there is a method to petition the government for redress of grievances available: taking it to the courts.

The Constitution gives these jurisdiction. The Congress is not the only portion of the federal that the people should be able to petition.

The whole point of the "privileges or immunities" clause of the 14th Amendment was to delegate a Power to Congress so that it would not have to wait on the courts but could instead take action directly. Proving this contention was a large part of my earlier response.

However, Congress still does not have lawful power to make a State honor its A4:S2:C1 commitments. That jurisdiction still lay with the courts, the Court in particular. There is no need to submit to a government destructive of their Liberty.

What it does have lawful Power to do is to fashion politically sourced federal civil rights that may mirror our unalienable rights even though they (the statutory privileges or immunities so respected by Congress) are not unalienable in and of themselves (since they can be withdrawn by later statutes) as if they were the real A4:S2:C1 Privileges and Immunities — which cannot be 'withdrawn'.

You could look at such civil rights as Congress may respect as being redundant if indeed they are based on our "P&I".

Example: we have, arguably, under our rightful common laws a right of Free Labor (i.e. 'right to work') derived from our unalienable right to enter into lawful contracts and such. Congress has never respected a federal "Right to Work" (indeed, they have respected the competing right to organize labor) but if they were to do so at some point the civil right they would be requiring the States to respect would not expressly be the common law right (though they should recognize such anyway) so much as it would be a redundant politically sourced "poi". So if some later Congress were to nullify the statutory law they would be freeing the States from having to respect the statutory "poi" but not the common law "P&I".

I should point out that Congress does not need to base any "poi" on our unalienable rights and they could invent these pretty much on a whim. In such instances their statutory civil rights would be unique to statutory law and if said law were later repealed the "poi" invented by it would vanish altogether (apart from some possible grandfather clause, natch).



Which brings up the right to alter or abolish forms of government which you mentioned. This right is expressed through the amendment process. This is the procedure even if said alterations are profound (it's reputed that one Framer opined early on that they were amending the Articles of Confederation out of existence, for example).

Put another way: the DoI establishes no formal methodology or process for altering or abolishing governments while the Constitution does. Thus the terrain left behind by the DoI was uncluttered with any requirements as to how such change could be accomplished. While the Constitution established a specific proverbial lay of the land.

This was a large part of Marbury: the Court rebuking an unconstitutional tweak to its delegated jurisdiction under A3:S2. The Constitution only gave the Court original jurisdiction over Cases; however, a petition for issuance of a writ is not a Case — it is a petition.

Aside: the thing is, William Marbury and the others could have taken Marshall's opinion to a District Court and gotten that writ of mandamus without controversy. Failing in that effort, they could have appealed the decision to the Court and received their petition on appeal. Why they did not do this is something of a mystery to me and part of a gnawing suspicion that the whole thing could have been a set up from the moment Marshall, as Secretary of State, didn't mail some of the commissions that had been properly processed.



Yep, that "or" in that case was a typoe just as you point out. I habte typeds! –.^

That's why my motto as a writer is: "The last edit you do is one edit too few."
54 posted on 08/04/2009 6:41:22 AM PDT by Rurudyne (Standup Philosopher)
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To: Nosterrex

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.


55 posted on 08/04/2009 6:49:11 AM PDT by Rurudyne (Standup Philosopher)
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To: marsh2

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?


56 posted on 08/04/2009 6:59:41 AM PDT by Rurudyne (Standup Philosopher)
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To: Rurudyne

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.


57 posted on 08/04/2009 8:05:20 AM PDT by marsh2
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To: Rurudyne

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.


58 posted on 08/04/2009 10:15:37 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: BenLurkin
Each new law seems to make LAWYERS more powerful. You almost have to be one to read and understand any law - especially when the 'law' is over 1000 pages.

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.

59 posted on 08/05/2009 6:45:27 AM PDT by mathluv ( Conservative first and foremost, republican second - GO SARAHCUDA!!!!)
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To: OneWingedShark

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.


60 posted on 08/06/2009 9:46:48 AM PDT by Jeff Head (Freedom is not free...never has been, never will be. (www.dragonsfuryseries.com))
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To: MainFrame65
No...we were not relieved of it.

Please consider joining with us and signing our Constitutional Restoration Petition that focuses on just this issue and spread it around. We are going to deliver it and the signatures to Washingotn DC, direct to Congress.

A PETITION ON FACEBOOK FOR CONSTITUTIONAL RESTORATION

Also, make sure you read the quotes on the following link from Ezekiel Emanuel, the architect of Obama Care and his Chief Health Care advisor.

They are sick, they are twisted, and they are dangerous.

EZEKIEL EMANUEL (MENGLE) AND THE OBAMA-CARE FINAL SOLUTION (Must Read)

61 posted on 08/06/2009 9:50:24 AM PDT by Jeff Head (Freedom is not free...never has been, never will be. (www.dragonsfuryseries.com))
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To: Jeff Head

Ah, even my “long distance” friends are shorter distance than many here. (I’m no sniper... I blame the horrible eyes.)


62 posted on 08/06/2009 11:33:03 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Rurudyne

“…I'm looking for feedback and criticism (as well a comments in general) in order to better express these ideas.”

Ok, you asked for it.  I did some editing of your piece, striking out some things and making additions/changes in blue, if that works out.

To paraphrase the author Harlan Ellison on editors:  “They take your baby, rip an arm off, re-attach it in the middle of the chest, and hand it back to you while telling you it’s a better baby.”

I hope I have not done that.  My intent was to help you with your piece, not to take your work and turn it into mine. 

________________________________

Do We the People really establish our government or is the government 'self-establishing'?   Do We the People really extend the Federal Government beyond its original limits as established by We the People or is it self-extending?

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. (I’d strike that sentence because I don’t really see that it is raised.)

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 goes to 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 inherent in the Declaration of Independence that the legislative power may at times even revert to the people when it is sorely neglected or abused, 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.   Simply, an unincorporated power is a power of We the People which we have not delegated to the Federal Government.

This is why the 10th Amendment, though generally the logical grammar in accordance with the style of composition 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 principals in underlying American governance:  

Tthat 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 whether 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 We the Ppeople established their Federal Ggovernment it means exactly this: they We the People delegated Powers to the Government it through some set procedure that is deemed lawful and otherwise retained all unincorporated powers to themselves and the any future delegation of any retained unincorporated power must also be through set procedure to be deemed lawful.

Here I will turn to the words of Chief Justice John Marshall from Marbury v Madison for further clarification of this principal:

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.

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.

Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.

This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the Ffederal Government (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.

So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves — unincorporated.

This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.

Now comes the rub, and please bear with me as I again turn to Marbury:

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.

Consider the highlighted text in light of this essay.

What is happening when the legislature enacts some law for which it has no delegated authority?

It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.

Can the Congress lawfully do this anyway? Is it not an elected body representing the people?

If a legislature, or an administrator or a jurist for that matter, can claim by right of representation as a representative of the people, the ability to further delegate powers on account of statutes but so delegate not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.

Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the Ffederal Government at the time.

Or even possessed by a State when dealing with electing a State representative.

So when a the Federal Ggovernment takes upon itself to alter its powers it is in fact a self-establishing extending entity though it was not established as such.  

Thus we see the truth behind what Chief Justice Marshall wrote: "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."

The illimitable power is precisely the power of any government that is self-establishing  extending and which has no need of some extraordinary procedure such as an amendment process.

Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.

So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.

Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many.

 


63 posted on 08/06/2009 9:11:15 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: Rurudyne

Sorry, the “blue” part didn’t work out. I don’t know why.


64 posted on 08/06/2009 9:12:26 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: OneWingedShark

“(States, however, would not be so constrained.)”

Do you mean they would not be so constrained by the suggested amendment or that they would not be so constrained at all?

If the federal government was forbidden to use EFT, Check, and Credit Card would not everyone it deals with be so constrained when dealing with them? The military could not be paid with EFT, Check or Credit Card. The builders of planes, tanks, aircraft carriers etc could not be paid with EFT, Check or Credit Card. Revenue for the purpose of paying the military could not be rendered with EFT, Check or Credit Card.


65 posted on 08/06/2009 9:34:37 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: yefragetuwrabrumuy

“Each State would send two delegates, chosen by the State, not by a popular vote, unless the State agreed to that.”

I don’t see a reason to trust the majority of the States to chose delegates who would work for a conclusion to such a convention that would be acceptable to most of the folks on this form.


66 posted on 08/06/2009 9:44:42 PM PDT by KrisKrinkle (Blessed be those who know the depth and breadth of their ignorance. Cursed be those who don't.)
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To: KrisKrinkle

I like “self-extending” lots.

Thanks for the critique!


67 posted on 08/06/2009 10:05:43 PM PDT by Rurudyne (Standup Philosopher)
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To: KrisKrinkle

>>“(States, however, would not be so constrained.)”
>
>Do you mean they would not be so constrained by the suggested amendment or that they would not be so constrained at all?

By the amendment, obviously.

>If the federal government was forbidden to use EFT, Check, and Credit Card would not everyone it deals with be so constrained when dealing with them?

Indeed so. All federal employees would have to be paid in cash and in person. There would be, of course, control-sheets and people would have to sign for the monies at every step of the chain.

>The military could not be paid with EFT, Check or Credit Card.

I don’t see a problem with that; the Constitution is pretty anti-standing-army. And, again, states could pick up the slack w/ national guard & militia.

>The builders of planes, tanks, aircraft carriers etc could not be paid with EFT, Check or Credit Card.

Right. I would be a major inconvenience for the federal government AND anyone dealing with them; IOW, it would help constrain the federal government’s size by making it inconvenient to deal with them.

>Revenue for the purpose of paying the military could not be rendered with EFT, Check or Credit Card.

Indeed, and that is part of the reason for suggesting it. The other part is that if it is physical money, and remember that it’s supposed to be silver or gold coinage which is intrinsically valuable, then it cannot spend non-existent monies [increasing the debt].


68 posted on 08/07/2009 6:14:18 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: KrisKrinkle

Two delegates from each State is the proximate form for a constitutional convention. The Philadelphia convention had an average of 4-5 delegates from each State except Rhode Island, which sent none. A handful of these delegates refused to sign the final draft of the convention.

But today, with 50 States, the US Senate model, but without the sitting senators, would be the easiest to accomplish. The federal government would have no hand in the convention, as an accepted principle.

The most contentious issue would be how the States determined who their delegates would be. In some, they would be appointed by the governor. In some, by appointment of the State legislature. Other State legislatures would call a popular vote for delegates.

However, while theoretically these delegates are free agents, practically speaking, they would have to be instructed before they convened as to what their State demanded, and what their State would refuse to accept.

In convention, the delegates would almost have to be sequestered, because every villain on the planet, both foreign and domestic, would do anything to become involved in the process.

After a final draft of the constitutional changes had been made, it would then be returned to the individual States for an up or down vote, and this would require a 3/4ths majority of States to agree, or else the convention could not retire, unless it gave up and quit.

This would almost guarantee a conservative outcome. The sitting US government would be a caretaker after the new constitution was agreed to, and there would have to be a process for the changes made, which could last up to six years, the regular rotation of the US Senate.

Right now, the primary emphasis of a CC would be twofold. First to reduce federal power and increase State power, and second, to reset the national economy, likely by renouncing the national debt and eliminating direct federal intervention with the people. This is, to put the States back in between the federal government and the people.

All federal taxes would be limited to payments from the States, and import duties. All federal monies for individuals would go to the States, not to individuals, even federal pensions.

And those parts of the federal government not authorized by the constitution would be dissolved.


69 posted on 08/07/2009 7:08:23 AM PDT by yefragetuwrabrumuy
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To: Rurudyne
>Mutiny on the Potomac: How the Federal Government has Usurped the Powers Reserved to the People
>THAT would be a great title to a book!

It would! Thank you for the idea; I'm actually writing a book right now which deals with that idea, philosophically speaking.
Pop me your name on the e-mail so I can give you credit for the title should I use it and get the book published.

70 posted on 08/12/2009 10:37:42 AM PDT by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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