- The Case Law theory and Stare decisis builds the base of law that is a usurpation of the Constitution as in the cases you described. It appears to me that British common law was required because they did "not" have a Constitution from which law flowed.
It appears to me that this use of case law precedent has allowed the courts to seize powers they are not given in the Rule - by - Law system of America. Once they make one decision it becomes the justification to use the same findings to decide the second and so on until they have established an Unconstitutional act as the law of the land without any legislative action to support it.
The courts by this method have built a house of cards and put our entire legal system at risk. All laws enacted or enforced with usurped powers are as if they never existed and are void in total. Meaning that all acts from the first usurpation are void from the first to the last. All court decisions would then be set aside and we would be a crisis mode until the Constitution could be satisfied. If this line of thinking is correct then the nation needs to start taking the Judicial structure apart over time; replacing it with a Constitutional trial system of common man each case should stand or fall on it's own merit and the decision of the Jury.
- Permalink Reply by on
- Glen,
I like and respect your observation that the Constitution is a contract: I will paraphrase a Franklin statement when asked what kind of government did he give us? "His answer was we gave you a Republic if you can keep it?".
As for the oath part, I have proposed a simple solution but it would take a very brave Nationally licensed legal group like a conservative ACLU to sue each politician for breach of promise in the court sighting specifics of their violations. The next legal option would be a national discrimination suit against all members of congress that have voted to enact a "progressive income tax rate law" as it lets the majority "TAKE" from the protected minority which has mountains of precedent cases and clearly it is a action against a real minority the rich.
In discussing these options most Lawyers have told me that they would never get it into court and could be blocked by the standing issue? So, again the courts are working hand in hand with those that break the Laws of the land.
- Permalink Reply by on
- Glenn what you are requesting does not need a constitutional amendment what is required is a law that automatically demands that ANY act of congress that is found unconstitutional requires that the signers of that act be immediately dismissed from their seat of office, and they will not be eligible to hold office or any other government job, or position, nor will they be allowed to lobby the government, for any purpose through the remainder of their life. To enforce this law any Attorney General from any state can call for a hearing where all the AG's from all the states will convene and determine the if the bill is Constitutional or not.
KISS
- Permalink Reply by on
- This will require a fairly long discussion so we may have to break it up into several posts.
Contract "is an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation." -Black's Law Dictionary.
Let's see if those conditions are met:
Q. Is there an agreement between the American People and their government?
A. Yes. The people agreed to join together "to form a more perfect union" and to delegate certain powers to the central government in exchange for certain protections by the government. They set out the terms of the agreement in a written document [contract] called the Constitution.
Q. Were there competent parties?
A. Yes. The people, recently freed from their obligation to the Crown, were free (and competent) to set up any form of government they chose to take the place of the English government. The entity (government) the people created through the instrumentality of the constitution was competent to accept and carry out the mandate of the people and to enact governing laws. "All Power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are no other sources. All delegated power is trust, all assumed power is usurpation. Time does not alter the nature and quality of either." Thomas Paine
Q. Is there an identifiable subject matter--and is it legal?
A. Yes. The subject matter is how this nation will be governed. What powers will be ceded to the government and what will be retained by the people.
Q. Was there legal consideration?
A. Yes. The people formed a new central government and gave it certain powers if it would promise to do certain things. The people, in turn, promised to support the new government with their taxes and to obey its lawfully enacted laws, pursuant to the agreement [Constitution].
Q. Was there mutuality of agreement?
A. Yes. The government, created and empowered by the Constitution, agreed to provide for the defense of the country and the general welfare of the Republic; the people agreed that they would create and empower a government with certain limited powers to fulfill its obligation under the contract.
Q. Was there mutuality of obligation?
A. Yes The people agreed to give up certain parts of their sovereignty and to obey the lawfully enacted laws of that government and support it with their taxes. The government, under the authority of the Constitution, agreed to provide for the common defense and provide for the general welfare of the nation.
If you read the Constitution (and not a Supreme Court interpretationof it), the entire mandate of the federal government, I submit, is contained within the one opening sentence of Section 8 of Article I,
"The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general welfare of the United States; but all duties, imposts and Excises shall be uniform throughout the United States."
There were three mandates in my opinion, (1) lay and collect taxes;
(2) pay the nation's debts (whenever and however they occurred or may occur in the future);
(3) provide for the common defense and general welfare of the United States. NOTE: there is nothing in there about transferring wealth among and between individual citizens!
The following 17 specific instructions (powers) in Article 8 are about how to carry out the above three general mandates.
The Constitution is the supreme law of the land and takes precedent over all laws passed by Congress, all treaties negotiated by the president and ratified by the Senate, and all obligations whatsoever created under the authority of the Constitution. [If anyone wants to know the source of my information, I will provide cites to Supreme Court cases which support my claim]. Foreign laws or treaties cannever trump the Constitution
unless a foreign power defeats us in war and imposes its law for ours.
- Permalink Reply by on
- "But the SC has no constitutional power to override Congress."?
The operative word in that declaration is "constitutional."
To answer your question we must first define "constitutional." I don't deny the Supreme Court has the de facto ¹ power to override Congress. But that doesn't end the inquiry.
What is the Constitution?
(1) is it the venerated document under glass in the National Archives?
(2) is it the transcription of that document athttp://www.house.gov/house/Constitution/Constitution.html?
(3) is it the 550 bound volumes and subsquent decisions of the United States Supreme Court? or,
(4) is it the "Living Constitution" that the Court changes anytime it has five justices in agreement about what the Constitution should say?
The answer to that question is critical to answering your question. The original Constitution does not contain any hint that the Supreme Court can override an Act of Congress. Quite the contrary.
At common law, courts could rule in the interstices, in the narrow spaces between laws which do not precisely cover the facts of the case sub judice. Any court-made law was binding unless, or until, the King or Parliament made a new law which was in conflict with it.
The legislative power always prevailed over judge-made law. James Madison expected the same rule to hold true in America,
"[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election² and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit." ³
The Constitutional Convention had before it as an example the New York Constitution which defined a role for the judiciary in the lawmaking process. The founders considered having the federal judiciary review the law for constitutionality before the law of Congress became final; however, they rejected that model because a sufficient number of states objected; the drafters believed the Constitution could not be ratified if it granted that much power to the unelected judiciary.
Nonetheless, the Supreme Court of the United States unilaterally and without authority seized the power of "judicial review" (Deciding whether an Act of Congress was "constitutional") in Marbury v. Madison. (1803) some 16 years after the ratification of the Constitution.
Chief Justice Marshall, who wrote the opinion in Marbury, came very close to being impeached because of that and other decisions that appeared to be politically motivated, ruling against the newly elected Jeffersonians. While under threat of impeachment, Marshall agreed judicial review was not necessary under our system of government; however, once the threat of impeachment passed, Marshall withdrew his offer to abandon judicial review.
A more troubling aspect of the case, Marshall had a blatant conflict of interest and should have recused himself from that case.
Marshall was John Adams' Secretary of State. It was he, on orders from Adams, who tried but failed to deliver Marbury's commission as a magistrate. Oh, I forgot to mention one little thing: while still Secretary of State, Marshall was also named as Chief Justice of the United States Supreme Court. (He continued to carry out the duties of both roles for the remaining months of Adams' term).
Newly elected President Thomas Jefferson instructed his Secretary of State, James Madison not to deliver the commission to Marbury. The latter sued.
When the case came before the Court, Marshall had to rule on his own actions, (and the withholding by others of the Marbury's commission) while he [John Marshall] was both Secretary of State and Chief Justice of the Supreme Court. I can't imagine a more egregious conflict of interest than being in a position to decide your own case.
So, how legitimate is the Supreme Court's power to overturn an Act of Congress? The answer will depend almost entirely on whether your own political philosophy leans more toward the liberals or the conservatives.
And who said "law is dull"?
__________________
¹ De Facto is used to characterize an officer, a government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate. . . .Thus an officer, king, or government de facto is one who is in actual possession of the office or supreme power, but by usurpation, or without lawful title.—Black’s Law Dictionary
² That's why we need to repeal the Seventeenth Amendment.
³ Federalist # 51
- Permalink Reply by on
- Lock Piatt said, "Is not the 10th amendment the power for the States to enforce the Constitution? If enough States start nullification actions . . . "
I think you have identified the problem with nullification, with your statement, "If enough States start nullification actions . . ." I am encouraged that the Attorneys General of more than 20 States have joned in a suit to overturn Obamacare.
South Carolina once tried to nullify a federal law pushed by Andrew Jackson, but since it was only a single state, President Jackson, who didn't pay much attention to the Constitution anyway, simply "nullified" the nullification. I'm not sure what the critical mass is; but it is clear from history that a single state--and probably even a small group of states--cannot now nullify a law of Congress.
- Permalink Reply by on
- Goldwater Institute Daily
November 4, 2010
Debunking myth of the ‘runaway’ convention
by Nick Dranias
Article V of the U.S. Constitution gives a supermajority of state legislatures the power to call a convention to restrain an overreaching federal government through targeted constitutional amendments. There is no reason to worry about a “runaway” convention because three-fourths of the states—38 states—would have to ratify whatever amendment might be proposed. Moreover, nothing in the nation’s history justifies fear of a “runaway” convention.
It is a myth that the U.S. Constitution was born of a “runaway” convention. The truth is the Convention of 1787 had an incredibly broad mandate from Congress—to establish “in these states a firm national government . . . [and] render the federal Constitution adequate to the exigencies of Government and the preservation of the Union.” In proposing the Constitution to amend the Articles of Confederation, the 1787 convention stayed well within the congressional call, as well as within the commissions of most delegates.
Although the Articles required unanimous ratification for alterations to it, and the Constitution only required ratification by nine states, the Constitution was only binding on those states that ratified it. While not every state in the Confederation initially ratified the Constitution, all of them ultimately did. In the end, the Constitution displaced the Articles of Confederation on the very terms prescribed by the Articles.
Today, the Goldwater Institute will release a new study that shows the states and Congress understood for decades after ratification that Article V provided an orderly way to make additional changes to the Constitution that would enhance its basic protection of freedom. If states choose to exercise their ultimate authority over the federal government through the Article V amendment process, history shows a “runway” convention just won’t happen.
Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.
Learn More:
Goldwater Institute: Amending the Constitution by Convention: A Complete View of the Founders’ Plan
Yale Law School: Report of Proceedings in Congress, February 21, 1787
Restoringfreedom.org: A powerful idea whose time has come
- Permalink Reply by on
- Whoa,
I am not trying to argue but to simply point out that the words are in the Article V and in the Goldwater piece - Constitution, Amendments (plural), and convention for amendments.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose (Amendments to this Constitution), or, on the Application of the Legislatures of two thirds of the several States, (shall call a Convention for proposing Amendments), which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, (or by Conventions) in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
As we can see, the 2/3 requirement to call for a convention to propose amendments (plural), in parenthesis, or upon 3/4 of the States ratified shall be valid for all Intents and Purposes, as part of the Constitution.
Today, the Goldwater Institute will release a new study that shows the states and Congress understood for decades after ratification that Article V provided an orderly way to make additional changes to the Constitution that would enhance its basic protection of freedom. If states choose to exercise their ultimate authority over the federal government through the Article V amendment process, history shows a “runway” convention just won’t happen.
Again the terms Convention and Constitution are related to change the Constitution via Article V.
The method of amendments are tow fold - 1) the Congress can propose for 3/4 of the States to ratify or - 2) 2/3 of the States can call a convention for the purpose of amendments which shall become as the Constitution upon 3/4 of the States ratifying same (note: Congress is not involved here).
We can call it what ever we agree to but a rose is still a rose and a convention for Constitutional amendments is a Constitutional Convention for amendments. Sorry if I am making a mountain out of a mole hill but I believe we must use the words of the Founders and their systems to sell the actions to the public. we will be called every name in the book of evil by the Progressive so it is important to be very factual within the Constitution.
- Permalink Reply by on
- Glen,
I might be wrong but it is my belief that if 3/4 of the State Legislatures ratify a single or numerous amendments they become a part of the Constitution without Congressional action or review.
Here is a letter from Thomas Jefferson to Charles Hammond, 1821.
[As to danger of the Supreme Court's misinterpreting the Constitution so as to concentrate power in Washington] To this I am opposed; because when all government . . . shall be drawn to Washington . . . will become venal and oppressive . . . [As Great Britain's Government] . . . If States look with apathy on this silent descent of their government into the gulf which swallow all, we have only to weep over the human character formed uncontrollable but by rod of iron, and the blasphemers of man, as incapable of self-government, become his true historians.
They were men of incredible vision and able to predict the ills that would become the truths of our days.
- Permalink Reply by on
- Birther score card -The questioned has been put to the SCOTUS 15 different times, it has been denied a writ everytime, just as the Diaz-Salazar case was. Here is a link to the Birther scorecard.The reason for denial has always been the same, the plaintiff's failed to show where Natural Born Citizen has been defined other than by the 14th Amendment.
- Permalink Reply by on
- now you accuse others of hijacking the thread because you persist to present nonfactual opinion which makes the TP look like the fools and extremest people that the Dems and Progressives present on TV and in the media each day. You have always been better than this - Your positions are not even in the realm of reality - here is a use of the Natural born connection do you support it?That His Majesty's liege subjects in these colonies, are entitled to all the inherent rights and liberties of his natural born subjects within the kingdom of Great-Britain.
- Permalink Reply by on
- SCOTUS cases on issue - the Slaughter house case addresses citizenship as a citizen of the United States of America and a separate citizenship of a individual State. the others all come off Slaughter and show the new found power of reach through to the States by the Federal government and the courts. Ending and diminishing States rights and powers. If the founders intended the Bill of rights to apply to the States would they have not spelled that out in detail?We have debated this many times but Atlas you keep trying to say that the SCOTUS must define Natural born - that is not within their power nor is it going to rule on that issue it would at best specify a conflict and send it to Congress for legislative action - IMHOHere's a case from 1983 affirming that an anchor baby is a Natural Born.see also, e.g., Diaz-Salazar v. I.N.S., 700 F.2d 1156, 1160 (7th Cir. 1983) (noting in its recitation of the facts that despite the fact father was not a citizen of the United States, he had children who were “natural-born citizens of the United States”), cert. denied 462 U.S. 1132, 103 S. Ct. 3112 (1983).
No comments:
Post a Comment