Posted on 02/01/2013 10:18:03 AM PST by WXRGina
Did you read the above paper in which she talks about Randy Barnett?
“Unfortunately the power of the States to overrule the Supreme Court ultimately lies in Ratification of Amendments — and you need 38 States.”
That applies to federal acts that are within its power and constitutional.
When the federal government exceeds its power with unconstitutional acts that’s when the statements of Jefferson/Madison come into play and state nullification kicks in.
Example: It’s within the federal governments power to raise and support armies, and states can’t deny that power without a 38 state amendment.
However, if the federal government were to pass a law establishing a church for example and requiring everyone to join, or pass a law shutting down all newspapers, then the states can nullify.
The Supreme Court really only has one choice in regards to rights guaranteed by the constitution, not interpret them but obey them. If they don’t then that’s where state nullification comes into play.
I was pointing out that there is are several routes to the same goal, which is to put the Feral Leviathan State back in its cage. While I am sympathetic to this article, the truth is that the burden of proof lies with those who support it. And the headwinds will be doubly strong. However, the process to amend the Constitution is not controversial.
I believe that they view the Fed Gov as all powerful in the same way that the Fed views itself. It is a creation and not the creator. The states gave it it's power and limited that power. The states did not create "one ring to rule them all".
Understand completely.
Please note that I stated that my answer was conditioned as “ULTIMATELY.”
Nullification is a great historical principle to stand upon (and discuss), but if the Supreme Court decides something in contravention, an Amendment ratified by the 38 States is the final word. Even the Supreme Court would not (or I suppose, could not) try to overturn an Amendment. Or would it?
Right. We don’t need “new” rules; just follow what we had to begin with, which would nullify 99 percent of the lawlessness of the past couple of hundred years.
bttt
Absolutely agree! :-)
Jefferson:
In the wake of Marbury v Madison, Jefferson wrote, in a letter to Abigail Adams, "... the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch." Simply put: if the Supreme Court has the power to say what is and is not constitutional, there is no limit to the court's power (and hence, to that of FedGov).
“Simply put: if the Supreme Court has the power to say what is and is not constitutional, there is no limit to the Court’s power.”
Again I say, a well-written Amendment cannot be overturned by the Supreme Court (I hope; who knows at this point).
“... a well-written Amendment cannot be overturned by the Supreme Court ...”
What part of “shall not be infringed” is so hard to understand? For that matter, the same question could be asked of a number of well-written passages in the Constitution.
The states created the Fed Gov and limited it's power. Scotus is part of the Fed. It is the created, not the creator. States clearly have the right, as the creators of the Constitution, to nullify a law that is contrary to the Constitution. SCOTUS has nothing to do with it. State legislatures can vote a federal law nullified in their state based on unconstitutionality.
“What part of “shall not be infringed” is so hard to understand? For that matter, the same question could be asked of a number of well-written passages in the Constitution.”
Got it. Really. Now you need to go back and see how the Supreme Court has chipped away at the Tenth Amendment over the last 70 years, so you will understand about infringement. Me? I don’t think it is hard to understand. But SCOTUS does.
A new Tenth Amendment could be written very, very specifically to overthrow SCOTUS decisions over the last 70 years, and reinvigorate the rights of the States. If specific, the Amendment would be incapable of being modified by SCOTUS, the way it was in the 1940s with the Interstate Commerce ruling about wheat — from there it has been all downhill.
“What part of “shall not be infringed” is so hard to understand? For that matter, the same question could be asked of a number of well-written passages in the Constitution.”
Got it. Really. Now you need to go back and see how the Supreme Court has chipped away at the Tenth Amendment over the last 70 years, so you will understand about infringement. Me? I don’t think it is hard to understand. But SCOTUS does.
A new Tenth Amendment could be written very, very specifically to overthrow SCOTUS decisions over the last 70 years, and reinvigorate the rights of the States. If specific, the Amendment would be incapable of being modified by SCOTUS, the way it was in the 1940s with the Interstate Commerce ruling about wheat — from there it has been all downhill.
You read my mind. The Tenth sprang to my mind as well. I started to think about enumerating all the ways that the SCOTUS has mooted the enumerated powers, but then thought it best to writing a post that just touched on the theme because a lot of FReepers would just need a little prompting to know where I was going.
Anyone familiar with Davis and Lee knows about nullification. No need to read it.
No need to read it? Oh, okay.
I found Ms. Publius Huldah’s paper here to be an exceptional and valuable read (which is why I busted my hands coding it), and a priceless paper to share with those who may not see how far from our foundation the US has fallen and who could use the educational ammunition to speak with knowledge on the subject.
But, it’s nice that you know everything there is to know about nullification without reading this.
Secession is the ultimate nullification, isn’t it?
The States can’t nullify because they were not a party to the original compact between citizens of the several states. The Constitution was ratified by special conventions of specially elected representatives in each state. It was not ratified by state governments.
As such, the people themselves created both the state and federal governments and delegated power and authority to them in their respective constitutions, reserving certain rights to themselves FROM government. As such, only the people can dissolve or alter that delegation of authority. I don’t see how the state has been delegated the power of nullification by the people. Where does it say that in any constitution - or is it an expansion of power beyond that specifically delegated?
Laz, you and Keith have convinced me. We’re going to rent this thing off Amazon to watch with our morning coffee this weekend. Although I know the story and may have seen the movie, my crummy memory is not pulling it up.
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