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Constitution and U.S. Code

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  • 05-29-2009, 12:09 PM
    ashman165
    Re: Constitution and U.S. Code
    Quote:

    Quoting divemedic
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    Where exactly does the Constitution say that? What you are referring to is actually a SCOTUS case, Marbury v Madison, where the Marshall Court took judicial power for itself. (Rightly or wrongly, that case is an entirely different debate, which is ripe for abuse. For example, when the SCOTUS was going to declare the "New Deal" unconstitutional, FDR threatened to pack the court by adding more Justices to it, so that we would have 15 instead of the current 9. They caved)



    So, are you a "negative rights" person? That is, do you believe that the people and the states only have the rights that are enumerated in the COTUS? For if you read the "general welfare" clause to mean "redistribute wealth" then the 10th amendment becomes meaningless, as the government can twist "general welfare" and "interstate commerce" to mean anything it wants it to mean.



    The heads of the two political parties. They call the shots. Them and the big money supporters who fund them. There are really very few differences between the R's and the D's. Sure, they squeal loudly over what few differences there are, but when push comes to shove, they all follow the same path.

    I appreciate the attempt to explain to me the history of supreme court rulings; however, since it is now and has been for 200 years the accepted, settled law of the land that the supreme court is the final arbiter on what the constitution means, there really isn't a great deal of room for debate. You can argue, I suppose, that they aren't, but they seem to think they are. Congress seems to agree, as do the President and the general Citizenry. I guess that's why when the supreme court hands down a constitutional interpretation, Congress doesn't say "well, we'll enact a law to counter your constitutional interpretation." If they did, the Court would simply strike that down again, which is probably why they tongue-in-cheek say that to alter it, all that is needed is a constitutional amendment.

    I think you'd have a hard time successfully arguing to the Court that they aren't really possessed of the power to interpret the constitution and decide ultimately what it says. Even if you are right, after a couple hundred years, it's going to be a hard road to hoe.

    The debate over what exactly "general welfare" means has been going on for a long, long time. We aren't likely to resolve it here, not that it would matter what you and I resolve since we aren't the people who actually do the interpreting. The supreme court does that, since they are --as is decidedly the case-- the final arbiter of what the constitution means. But consider that if the citizenry are dying off from, oh say, starvation, then I think there would be indeed a strong argument that redistribution of resources from those who have to those who do not would well be with in the province of the Congress to mandate. Clearly in that situation, the welfare of the people isn't in good repair. If lots of people just drop dead, then it's a sure sign that something in the welfare of the population has gone, or is going, the wrong way.

    Surely you don't posit that the Congress would lack power to enact legislation to curb such a situation, even if it offends your notion of how the nation should be run.


    Whether or not I'm a "negative rights" person isn't particularly relevant here for the same reason I stated above: my opinion isn't the one which shapes the contours of the law. For what it's worth, I happen to generally think that anything not specifically prohibited by law is legal. Things which aren't specifically denied to people are their right. But I also think that simply because something has been written down in the law doesn't mean that it's actually legal --that many laws get struck down supports informs my decision on this. I also happen to think that in a society which pretends to be a free one, such as ours, then there's a default assumption that all conduct is legal, and only specific issues which adversely affect the country should be made illegal. That is to say that the government should have very strong, compelling reasons for prohibiting anything instead of just legislating willy-nilly on whatever topic some particular sect happens to find offensive.

    As BOR noted, Carl, the laws were indeed struck down. That the executive branch chooses not to enforce them in states where state law allows for it is another matter; that's a policy question, not so much a legal one. The Justice Department could go around in California arresting people and getting convictions for violation of federal law; they merely choose not to do so.

    BOR, that's why I said the federal government has power to mandate to or withhold from states certain courses of action. This leaves an open space for situation in which it lacks power to do either, by way of a natural logical consequence.

    It's also why I said "essentially" as in "basically". I think we can all agree that the basics of something don't cover every particular instance related to that something.

    However, I do take issue with your assertion that federal government has "NO" power to repeal their ratification and thus secede. My evidence is perhaps anecdotal, and maybe even a little sketchy, but the Civil War laid to rest any reasonable notion that a state can do just what you say the federal government can't prevent them from doing. That the federal government has before done so, successfully, implies that it surely has at least one source of power to force the condition. Whether it's an ethical choice is a different matter. That the government has the power to do it is beyond question.

    Or in other words, it's very difficult to argue that an entity lacks the ability to do something it has actually done, as a factual matter anyway. Now as a legal matter, it seems to be reasonably well resolved that no state may leave the union because it wants to. To that end, if one tries, there's no good reason to think that the federal government wouldn't hastily stop such action. I think we can all agree that we as a country have little compunction about using force to get what we want.
  • 05-29-2009, 12:14 PM
    cdwjava
    Re: Constitution and U.S. Code
    Quote:

    Quoting divemedic
    View Post
    An interesting challenge to that theory is happening in Montana. Montana has passed a law, authorizing people to make firearms without a Federal License, in violation of Federal Law, as long as they are stamped "made in Montana." The theory is that the Federal Govt cannot outlaw the manufacture, as long as the firearm is not involved in interstate commerce.

    However, from what I have read that law is in jeopardy because the chances of all the components being mined, milled, and manufactured in the state are slim to none. So, the presumption is that the state will lose, but it HAS lit a fire under a number of legislators and state governments to try something along those lines but crafted a little more carefully.

    - Carl
  • 05-29-2009, 12:17 PM
    BOR
    Re: Constitution and U.S. Code
    Quote:

    Quoting ashman165
    View Post
    I appreciate the attempt to explain to me the history of supreme court rulings; however, since it is now and has been for 200 years the accepted, settled law of the land that the supreme court is the final arbiter on what the constitution means, there really isn't a great deal of room for debate.

    Justice Jackson, I believe it was, was quoted as saying "we are right because we are final, we are not final because we are right".




    Quote:

    However, I do take issue with your assertion that federal government has "NO" power to repeal their ratification and thus secede. My evidence is perhaps anecdotal, and maybe even a little sketchy, but the Civil War laid to rest any reasonable notion that a state can do just what you say the federal government can't prevent them from doing. That the federal government has before done so, successfully, implies that it surely has at least one source of power to force the condition. Whether it's an ethical choice is a different matter. That the government has the power to do it is beyond question.

    I said the STATES can secede, what is to stop them? As I said, Soveriegn Suicide.
  • 05-29-2009, 12:26 PM
    ashman165
    Re: Constitution and U.S. Code
    Quote:

    Quoting BOR
    View Post
    Justice Jackson, I believe it was, was quoted as saying "we are right because we are final, we are not final because we are right".







    I said the STATES can secede, what is to stop them? As I said, Soveriegn Suicide.

    Maybe I'm just not understanding what precisely you mean by "Sovereign Suicide". If you mean that a larger, more powerful government (our federal one in this case) has plenary authority to arrest the conduct, or attempt thereat, by force if necessary, then we agree I would imagine.
  • 05-29-2009, 12:42 PM
    BOR
    Re: Constitution and U.S. Code
    Quote:

    Quoting ashman165
    View Post
    Maybe I'm just not understanding what precisely you mean by "Sovereign Suicide". If you mean that a larger, more powerful government (our federal one in this case) has plenary authority to arrest the conduct, or attempt thereat, by force if necessary, then we agree I would imagine.


    One, by that I mean the feds would be no longer required to PROTECT them from invasion as the Constitution mandates:

    Article 4:

    Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

    Two, no federal funds, of any kind, as an example, Obama's disbursements to the states, such as the old revenue sharing program entailed.

    In South Dakota v. Dole, big brother forced the states to raise thier drinking age to 21 or loose federal highway funds, they all gave in.

    Three, no federal protection/investigation of the federal criminal laws, no federal funds to help build jails, no federal funds for law enforecement, etc.

    "Sovereign Suicide".
  • 05-29-2009, 12:49 PM
    ashman165
    Re: Constitution and U.S. Code
    Quote:

    Quoting BOR
    View Post
    One, by that I mean the feds would be no longer required to PROTECT them from invasion as the Constitution mandates:

    Article 4:

    Section 4. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.

    Two, no federal funds, of any kind, as an example, Obama's disbursements to the states, such as the old revenue sharing program entailed.

    In South Dakota v. Dole, big brother forced the states to raise thier drinking age to 21 or loose federal highway funds, they all gave in.

    Three, no federal protection/investigation of the federal criminal laws, no federal funds to help build jails, no federal funds for law enforecement, etc.

    "Sovereign Suicide".

    But, but, but there's NAFTA!

    And we routinely dole huge sums of money to foreign states. =P

    Yeah, I get what you're saying, and it isn't really an avenue I thought about at all. I suppose I was limiting my analysis to simply the act of trying to secede, and the act to prevent it, to the exclusion for any reason of why or why not. But you surely do raise a good point.
  • 05-29-2009, 03:01 PM
    divemedic
    Re: Constitution and U.S. Code
    But the states DID secede. They were invaded and "conquered" by the Union. It is easy to prove: West Virginia is a state. The only way that this could be the case is if Virginia had not been a state at the time that WV was admitted to the Union, since Art IV, Sec 3 prohibits any state from being admitted in to the Union from within the borders of another state. The mere existence of the State of West Virginia thus proves that Virginia (and presumably the rest of the Confederate States) successfully seceded from the Union.

    The fact that the Union invaded, conquered, and readmitted the former states years later does not change the fact that they did secede.

    ETA: I do understand that Marbury will stand, and I understand the reasoning behind it. I still stand behind my original statement, which started this sidetrack, that the original intent of the founders has been lost, and we do not have the government that we were intended to have.
  • 05-29-2009, 03:14 PM
    ashman165
    Re: Constitution and U.S. Code
    Quote:

    Quoting divemedic
    View Post
    But the states DID secede. They were invaded and "conquered" by the Union. It is easy to prove: West Virginia is a state. The only way that this could be the case is if Virginia had not been a state at the time that WV was admitted to the Union, since Art IV, Sec 3 prohibits any state from being admitted in to the Union from within the borders of another state. The mere existence of the State of West Virginia thus proves that Virginia (and presumably the rest of the Confederate States) successfully seceded from the Union.

    The fact that the Union invaded, conquered, and readmitted the former states years later does not change the fact that they did secede.

    No more so than us having declared our independence from England actually made us independent. It was the ensuing war about the issue that dictated the result. Had we lost, it wouldn't have turned out that we actually did wind up becoming a nation. It would have been merely a rebellion put down by the Crown. (Sorry about the assonance there)

    Just because a body of people choose to act in a certain way and give their cause a particular name, say in this case that of a newly formed nation, doesn't mean that it is so. I don't doubt for a moment that the people who do so have a genuine belief in what they're doing, well at least for the most part. However, belief doesn't dictate reality.

    That some states asserted they were seceding from the Union would have been solidified had they won. Since they lost in their attempt at it, they were merely in a state of rebellion.

    Now, if we consider that they succeeded and became an independent nation at the time and we, oh say, came back and conquered them in 1985, then you'd surely have a strong argument. No weaker than if England invaded us today and conquered us. It would then be true that we successfully rebelled, became an independent nation that was later conquered and absorbed. It's of no moment that the conquering body was the one from which we a couple of hundred years ago escaped.

    There's a time component involved there; while an open war is going on over the issue I don't think it's right to proclaim "We succeeded! We are free!" It's when the active conflict ends that we are able to determine the outcome, not during.

    This, of course, ignores any discussion about how we now generally understand the idea of a new nation to come into being, which seems to have been in effect during our Revolutionary War (War of Insurrection): acknowledgment by existing nation(s) of the emergence of a new one. That's one of the ways in which France was so important to our own revolution.
  • 05-29-2009, 03:43 PM
    divemedic
    Re: Constitution and U.S. Code
    I understand what you are saying, but remember this: If the states did not secede, then Virginia would have still been a state, thus making West Virginia's statehood unconstitutional.

    Since West Virginia is a state, it follows that Virginia was not a state at the time. There is no other conclusion that can be reached. With that being the case, then the states did, in fact, secede.

    You make a good point with respect to the War of 1776. Had Washington and his band lost the war, they would be what we call terrorists today. Since they won, they are heroes and patriots. (even though what they did was anything but patriotic, unless you consider armed rebellion to be patriotic)

    It will be interesting to see what happens with respect to the Southwest. They are very near the tipping point, where over half of the population across several states are from a foreign country. If there is a path here to voting rights (as supported by the newest SCOTUS appointment and the Democrat party) and they vote to secede and form Aztlan, as La Raza, La Mecha, and other groups have proposed, we are seeing a historically interesting situation develop.

    We live in interesting times.
  • 05-29-2009, 03:57 PM
    ashman165
    Re: Constitution and U.S. Code
    Quote:

    Quoting divemedic
    View Post
    I understand what you are saying, but remember this: If the states did not secede, then Virginia would have still been a state, thus making West Virginia's statehood unconstitutional.

    Since West Virginia is a state, it follows that Virginia was not a state at the time. There is no other conclusion that can be reached. With that being the case, then the states did, in fact, secede.

    You make a good point with respect to the War of 1776. Had Washington and his band lost the war, they would be what we call terrorists today. Since they won, they are heroes and patriots. (even though what they did was anything but patriotic, unless you consider armed rebellion to be patriotic)

    It will be interesting to see what happens with respect to the Southwest. They are very near the tipping point, where over half of the population across several states are from a foreign country. If there is a path here to voting rights (as supported by the newest SCOTUS appointment and the Democrat party) and they vote to secede and form Aztlan, as La Raza, La Mecha, and other groups have proposed, we are seeing a historically interesting situation develop.

    We live in interesting times.

    Well, it's certainly true that what we now call West Virginia did break away from Virginia during that time and was admitted to the Union as its own state. So what? That doesn't mean that Virginia had actually prevailed in its attempt to secede from the Union. The West Virginians simply refused to take part in the attempt to do so. Their admittance to the Union was a practical matter - it's better to have allies in war than enemies. Also, there are a lot of things from that era which weren't constitutional and yet still happened. Does that mean we should have retroactively expelled them (well, I guess you can't expel them if people had decided they were never a state) and made them again a part of Virginia?

    Perhaps. Perhaps not. But there's a problem here with the reasoning because of the remainder of the clause, which you didn't state.

    It's that whole without the consent of the legislatures involved and the congress. Clearly, the legislature of West Virginia assented to, well what is essentially, its breaking away from Virginia. This line of reasoning cuts a bit against me, but I don't think the obstacle is insurmountable. So, they broke away from Virginia, which they perceived to have actually seceded from the Union. Whether or not Virginia had done so, the West Virginians believe it, so if it was error, perhaps it was a harmless one. I'm not really sure, and this would require quite a bit of thought.

    And they clearly had the consent of the Congress, else they wouldn't have been admitted. So, the issue here is that of the Virginia legislature. I don't know what its take on West Virginia breaking away was, but I'll be doing some reading on that very topic!

    So, all of that to say that what I've been typing here on this issue is at present a provisional line of thought. I'll have to get better informed about the happenings between the two states before I can render a more coherent thought.

    About the Southwest, I think your fears are unfounded. It would be a bit odd to migrate to the country, take up residence in one of its states and then attempt to secede the country, irrespective of whether the federal government would actually permit that to happen.
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