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To: Colt .45
U.S. Supreme Court: Martin v. Hunter's Lessee (1816): The Federal Government "can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."

Oh, you'll have to do better than "Martin".

Martin v. Hunter's Lessee, 1 Wheaton 304; 4 L. Ed. 97 (1816).

Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar.

"The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by "the people of the United States.

There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either.

The constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the states depend upon their own constitutions; and the people of every state had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States."

It is hard to imagine an honest person posting excerpts from Martin when it is one of the main cases on which the federalist position rests.

Some comentary:

"The Supreme Court, in an opinion by Justice Story, held against the grant of the state of Virginia. Normally this would have ended the litigation, as the state supreme court would be expected to issue court process to carry out the decision.

But the Supreme Court of Virginia openly defied the decision and refused to issue the proper legal process upholding it! Remember, this was Virginia, the home of the Jeffersonians and the seat of the opposition to Marshall and the Court.

Back the case went to Washington. Story again delivered the opinion of the Court--an opinion which surely reached the ultimate in the doctrine of federal supremacy over the states. Story held that the Virginia court must follow the mandate of the Supreme Court, and indirectly hinted that if this were not clone the Supreme Court would issue legal process against the Virginia justices personally, compelling their acquiescence upon threat of contempt. The possible spectacle of a judge of the highest court of a state being called to account before the United States Supreme Court under pain of possible fine or jail sentence is certainly the acme of federal supremacy over the states. The spectacle never took place. The Supreme Court of Virginia acquiesced."

.--Professor Jerre S. Williams, University of Texas, author of Constitutional Analysis in a Nutshell

I say again that no honest person would cite Martin in trying to support secession and treason.


88 posted on 06/21/2002 12:01:25 PM PDT by WhiskeyPapa
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To: WhiskeyPapa

Regardless of the kind of federalism current the Constitution does provide some very specific powers to both the states and the federal government. These powers are traditionally divided into three categories.

Reserved powers are those that have been granted specifically to the states or are of a traditionally state scope. These consist mostly of police powers, such as providing fire and police protection, establishment of health regulations, licensing, and education.

Granted powers, also known as express, enumerated, implied, delegated, and inherent powers, are those specifically listed in Article 1, Section 8, such as the power to coin money, to raise an army and navy, to provide for patent and copyright protections, to establish a post office, and to make treaties and war with other nations. An express, delegated, or enumerated power is one specifically listed; an implied or inherent power is one that exists to carry out an express or enumerated power. For example, Congress can raise an army; this implies the ability to specify regulations concerning who can join the army.

Concurrent powers are those held to some extent by both the federal and state governments. Both, for example, have taxation power, the ability to construct and maintain roads, and other spending for the general welfare. Many things are denied of both or either levels of government. States, for example, have no authority to coin money or wage war. Neither may pass a bill of attainder or any ex post facto law. Much of the Bill of Rights applies restrictions to both states and the federal government, while all of the Bill of Rights applies restrictions to the federal government. Note that the Bill of Rights originally had no effect of restriction on the states, but judicial interpretation of the 14th Amendment's due process clause has incorporated much of the upholding of civil rights to the states. - U.S. Constitution online.

As you can clearly read, the Federal Government DOES NOT hold supreme power over the States! Only in enumerated (or specific) areas!

Article 14 was enacted only after Lincoln's War of Aggression.

Article 10 of the Bill of Rights reads The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Federalism in the United States has evolved quite a bit since it was first implemented in 1787. In that time, two major kinds of federalism have dominated political theory.

"The first, dual federalism, holds that the federal government and the state governments are co-equals, each sovereign. In this theory, parts of the Constitution are interpreted very narrowly, such as the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause. In this narrow interpretation, the federal government has jurisdiction only if the Constitution clearly grants such. In this case, there is a very large group of powers belonging to the states, and the federal government is limited to only those powers explicitly listed in the Constitution.

The second, cooperative federalism, asserts that the national government is supreme over the states, and the 10th Amendment, the Supremacy Clause, the Necessary and Proper Clause, and the Commerce Clause have entirely different meaning. A good illustration of the wide interpretation of these parts of the Constitution is exemplified by the Necessary and Proper Clause's other common name: the Elastic Clause.

Dual federalism is not completely dead, but for the most part, the United States' branches of government operate under the presumption of a cooperative federalism. The shift from dual to cooperative was a slow one, but it was steady.

In from 1789 to 1861 the federal Government operated more under the dual federalism than the cooperative kind. You look at government with todays view, and are trying to apply it to a system that was much closer to the Founder's intent. We are a Republic</> which means the government is supposed to be governed by the people! This is why we have the Bill of Rights.

By the way Amendment #9 of the Bill of Rights states 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. So you were incorrect in your assertion that the Federal Government's powers were broad and supreme

94 posted on 06/21/2002 12:38:46 PM PDT by Colt .45
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