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  1. #14
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    Default 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.

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