[KrisKrinkle]

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".

 

[Rurudyne]

"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."