Thursday, May 15, 2014

Goldwater page 171

 Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:26pm
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Reply by Mangus Colorado on November 29, 2012 at 11:53am
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unnamed author . .. 
Finally I have someone confirming my interpretation of Art. 5, I was really starting to doubt my reading aptitude. We all get so immersed with trying to right the wrongs that we don’t see the forest for the trees.

IMO the purpose of the  or “petitions” being submitted to the Congress for a Con Con was to engage ALL States. We are a Republic not a Democracy.

If the 34 can call and 38 can make law, have we not usurped the rights of the remaining 12?  We are a Republic not a Democracy.
    Permalink Reply by Mangus Colorado on November 29, 2012 at 11:54am
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    Correction for my last sentence, it should have been clearer.

    If the 34 can call and 38 can make law, have we not usurped the rights of the remaining 12 by circumventing the intervention of Congress?  We are a Republic not a Democracy.
      Permalink Reply by Mangus Colorado on November 29, 2012 at 11:54am
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      It doesn’t even make sense that 38 States can Ratify an Amendment without the input of the other 12. If all 50 States are involved in the Amendment process and 38 Ratify…. then you have a justified law that has been rationally reasoned with the rest of the Republic.

      Now as for as the other Amendment process, Congress can call and Ratify, in this process all States are involved (that is before 17th in1913) thus given us a justified law that has been rationally reasoned with the rest of the Republic.

      IMO any Congressional Amendment made after Amendment 17 should be null and void because the States did not have any Representation in the Congress.  
        Permalink Reply by Mangus Colorado on November 29, 2012 at 11:55am
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        unnamed author . . .
        I think you are absolutely right about SCOTUS shooting down the nullification attempts. 
        How to get the Convention?  The Friends of an Article V Convention (FOAVC.org) claim there have been over 400 petitions for an Article V Convention which Congres simply ignored.  I have seen other estimates there may have been 275.  Either way, the petititons far exceed even the total number of States; they have been passed by State Legislatures years apart and with little or no coordination between States.  Congress obviously doesn't want a Convention and will do anything they can to avoid one.  So it simply looks away and pretends the petitions are not there (although they are spread upon the Congressional Record).
        My idea is to pursuade two-thirds of the States (34 States) within a space of one year, to reaffirm their petitions by passing new resolutions.  Get as much press coverage as we can, pack up the petitions in one briefcase and have an individual or a delegation march up the capital steps, in full view of the press, and hand deliver the requisite number of petitions to a Congressman/woman, and a Senator--of if they won't accept them, to the Sergeant-at-Arms of each chamber.  That, I believe, would put tremendous pressure on Congress to take action on calling the Convention.
        If Congress, under those circumstances, still refuses to call a Convention I think the Tea Party and others could use that as further evidence that the disconnect between Washington and the people is so great we need to vote out every Senator and every Member of Congress.
        Permalink Reply by Mangus Colorado on November 29, 2012 at 11:57am
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        You  must think voting for Senators has worked out well for the States and the people - Senators holding power for 50+ years by serving the special interest groups - favoring the usurpation of the Constitution by all [3] three branches of the Federal Government - they continue to force States to comply with regulations that cost money for services or solutions of the problems of the big States that do not apply to the smaller States but they are forced to comply for it is one size fits all.

        Surly you jest when you think the Federal government has the best interest of the sovereign individual [ a single citizen ] over the will of the majority.

        Federalist no. 62 Hamilton.

        In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
        Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
        IV. The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.
        First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.
        Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.
        Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?
        A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.
        Permalink Reply by Mangus Colorado on November 29, 2012 at 12:28pm
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        I think we are all basically saying the same thing, just a little differently.  The federal gov. will never willingly cede usurped powers, that is a fact throughout History of all nations, the FF even said as much, and was why they structured the constitution the way they did.  Some think this information may be useful, and some don't, but here is the nut to crack, to change this will have to be by Article V, so in that effort we need all guns blazing, the people may not be able to understand the nuts and bolts of why or how the 17th was illegally ratified, if indeed it was, but if it was illegal, and we can show documented proof to the people whom we ultimately need to convince, it will strengthen the push for repeal and make the argument for repeal have much more teeth.  Our argument needs to be in the here and now as I believe others said, but to ignore the analysis of the past that has led us to today is folly, remember the saying "those who fail to study history are doomed to repeat it".


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:30pm
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        SOME REASONS AND DISCUSSION WHY THE 17TH AMENDMENT NEEDS TO BE REVOKED.

        If anyone is interested just look at the Senates actions over the last 97 years and tell me how many votes protected the states? I find no benefit for the individual sovereign citizen or the individual States so who benefited with this amendment? The Strong Central Government ?

        Amendment 17 - Senators Elected by Popular Vote. Ratified 4/8/1913. History
        The Senate of the United States shall be composed of two Senators from each State, elected by the  thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
        When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
        This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

        History of the 17th -
        17th Amendment
        One of the most common critiques of the Framers is that the government that they created was, in many ways, undemocratic. There is little doubt of this, and it is so by design. TheElectoral College, by which we choose our President, is one example. The appointment of judges is another. And the selection of Senators not by the people but by the state legislatures, is yet another. The Senatorial selection system eventually became fraught with problems, with consecutive state legislatures sending different Senators to Congress, forcing the Senate to work out who was the qualified candidate, or with the selection system being corrupted by bribery and corruption. In several states, the selection of Senators was left up to the people in referenda, where the legislature approved the people's choice and sent him or her to the Senate. Articles written by early 20th-century muckrakers also provided grist for the popular-election mill.
        The 17th Amendment did away with all the ambiguity with a simple premise — the Senators would be chosen by the people, just as Representatives are. Of course, since the candidates now had to cater to hundreds of thousands, or millions, of people instead of just a few hundred, other issues, such as campaign finances, were introduced. The 17th is not a panacea, but it brings government closer to the people. The Amendment was passed by Congress on May 13, 1912, and was ratified on April 8, 1913 (330 days).
        Tags: 17TH, CANCEL., REMOVE, REVOKE


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:31pm
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        The "Repeal Amendment"

        The "Repeal Amendment"
        In The Wall Street Journal, Randy E. Barnett and William J. Howell argue that a couple of constitutional amendments changed the character of federalism:


        The 16th Amendment gave Congress the power to impose an income tax, allowing it to tax and spend to a  previously unimaginable. This amendment enabled Congress to evade the constitutional limits placed on its own power by effectively bribing states. Once states are "hooked" on receiving federal funds, they can be coerced to obey federal dictates or lose the revenue.

        The 17th Amendment provided for the direct election of U.S. senators by the voters of each state. Under the original Constitution they were selected by state legislatures and could be expected to restrain federal power. Whatever that amendment's democratic benefits, the loss of this check on the federal government has been costly.


        Their remedy:



        In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional "Repeal Amendment." The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:

        "Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

        At present, the only way for states to  a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

        The Repeal Amendment should not be confused with the power to "nullify" unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president's veto power.
        Tags: AV, and, power, purpose, repeal, revoke, void


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:32pm
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        Reply by Mangus Colorado on November 29, 2012 at 10:33am
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        Also consider this thread that goes under the 17A umbrella, imo.


        The Senate should have killed legislation, legislation inspired by anti-republic socialist FDR, which established Social Security.  Corrupt Congress needed to first petition the states for a grant of specific power via constitutional amendment as required by Article V to tax and spend for Social Security.

        Remember, Article V is corrupt Congress's best kept secret.
        Permalink Reply by Mangus Colorado on November 29, 2012 at 10:34am
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        With all due respect to Senator Hatch, here's another thread to go under the 17A umbrella.


        Given that the states have never delegated to Congress via the Constitution the power to regulate immigration, Senator Hatch first needs to do the following.  He needs to comply with Article V by rallying both houses of Congress to petition the states for a grant of specific power to regulate immigration via constitutional amendment.

        Also, here's Thomas Jefferson's clarification that the states have never delegated to Congress via the Constitution the power to regulate immigration.

        "4. _Resolved_, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that "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," the act of the Congress of the United States, passed on the -- day of July, 1798, intituled "An Act concerning aliens," which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force." --Thomas Jefferson, Draft of the Kentucky Resolutions - October 1798.


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:34pm
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        Constitutional Arcana: The Forgotten Navigation Convention of 1786

        Constitutional Arcana: The Forgotten Navigation Convention of 1786

        August 19th, 2012 by Independence InstituteCategories: Article V Convention, Current Events, The FoundingNo Responses
        062012 RGN BlackSpoutWood PitlochryIn an earlier post, I reported that the Constitutional Convention of 1787 was far from unique: that during the lifetime of Benjamin Franklin (1706-1790) nearly 20 inter-colonial and interstate conventions met. Some were attended by as few as three colonies or states; others by as many as 12.
        These multi-governmental conventions were held in Philadelphia (three); Annapolis (one);York Town, Pennsylvania (one); Providence, Rhode Island (two); Boston (one); Hartford (two); Albany, New York (at least four); Rome, New York (one); New Haven (one); Lancaster, Pennsylvania (one); and Springfield, Massachusetts (one). All were diplomatic meetings consisting of “committees” (delegations) of “commissioners” (delegates), with each colony or state having one vote. All were called to focus on designated problems, such as Indian relations, relations with the British, wartime supply, trade, or the currency.
        In addition to the gatherings that occurred, there were others that were called but never met. For example, in 1777 the Continental Congress asked Georgia and the Carolinas to meet at Charleston to discuss wartime inflation, but those states never did so. In 1783, Massachusetts called for a meeting with Connecticut, Rhode Island, New Hampshire, and New York to discuss , but it never was held. There are other examples.
        I recently added to my list the abortive “Navigation Convention.” In 1785, Virginia and Maryland concluded  over rights to the Potomac River. Perhaps inspired by the result, late the same year Pennsylvania proposed that Maryland and Delaware join with it in a convention to discuss (1) improvements in the Susquehanna River (there was talk of a permanent national capital on the Susquehanna) and (2) a canal linking the Delaware and Chesapeake Bays.
        During the first half of 1786, all three states selected delegates and, apparently, carried out some informal negotiations. But the idea of a formal meeting was outrun by events, as first the Annapolis Convention and then the Constitutional Convention were called to address much wider ranges of issues.
        Like most of the other 18th century multi-governmental meetings, the Navigation Convention is little known among constitutional writers today. In fact, the Navigation Convention may be the least known of the lot, for it was overshadowed by the nearly-contemporaneous call of the Annapolis Convention.
        The confusion extends even to true professionals (which most constitutional writers really are not). A Delaware archivist has informed me that his state’s records on the subject had been misfiled with those pertaining to the gathering at Annapolis. Apparently, whoever filed the documents had been unaware that the Navigation Convention was not the same meeting as the much more famous Annapolis Convention.

        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:39pm
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        CAN 38 STATES AMEND THE CONSTITUTION?

        I will take issue with many on the available remedies for the people under Article V.

        I find nothing in the Constitution or Article V that prevents 38 States from creating an amendment as instructed by the people of the many States to say revoke the 14th, 16th and 17th amendments. Then this amendment is submitted to the vote for approval of 38 State legislatures for approval; after which it is resubmitted for a ratification vote by each State. If the amendment is so ratified then it is presented to Congress and it becomes the law of the land. 

        [or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;] In other words 3/4 or 38 States can change the Constitution anyway they desire and Congress has no say in the matter.

        There is no language that says it can not be done by direct amendment by 3/4 of the States. There are volumes of writings by the Founders as to nullification and the Article V protections. These methods were devised to allow a peaceful rebellion by the States to protect the people from an oppressive usurping Federal Government and Congress gone wild.

        If fact many said it was the absolute duty of the States [legislators] to protect the people from a usurping government. Many in fact went so far as to say that defense is mandatory on the States to nullify unconstitutional laws.

        So, In my estimation there is no prohibition of the use of the Article V amendment process by the States alone.


        Article V - Amendment Note1 - Note2 - Note3

        The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the  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; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth  of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
        Tags: Yes, can, how, limits, protections, they, why


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:41pm
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        The Constitutional Amendment Process per Federal Statute 1 U.S.C. 106b

        The Constitutional Amendment Process

        The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal . Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.
        The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.
        The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
        A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This  is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been .
        In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.
        In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.
        Tags: AV, amendments, statues


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:43pm
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        The Constitutional Amendment Process per Federal Statute 1 U.S.C. 106b

        The Constitutional Amendment Process

        The authority to amend the Constitution of the United States is derived from Article V of the Constitution. After Congress proposes an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 U.S.C. 106b. The Archivist has delegated many of the ministerial duties associated with this function to the Director of the Federal . Neither Article V of the Constitution nor section 106b describe the ratification process in detail. The Archivist and the Director of the Federal Register follow procedures and customs established by the Secretary of State, who performed these duties until 1950, and the Administrator of General Services, who served in this capacity until NARA assumed responsibility as an independent agency in 1985.
        The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the President does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to NARA's Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.
        The Archivist submits the proposed amendment to the States for their consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their State legislatures. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.
        A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the States (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the Archivist to certify that the amendment is valid and has become part of the Constitution. This  is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the Nation that the amendment process has been .
        In a few instances, States have sent official documents to NARA to record the rejection of an amendment or the rescission of a prior ratification. The Archivist does not make any substantive determinations as to the validity of State ratification actions, but it has been established that the Archivist's certification of the facial legal sufficiency of ratification documents is final and conclusive.
        In recent history, the signing of the certification has become a ceremonial function attended by various dignitaries, which may include the President. President Johnson signed the certifications for the 24th and 25th Amendments as a witness, and President Nixon similarly witnessed the certification of the 26th Amendment along with three young scholars. On May 18, 1992, the Archivist performed the duties of the certifying official for the first time to recognize the ratification of the 27th Amendment, and the Director of the Federal Register signed the certification as a witness.
        Tags: AV, amendments, statues

        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:46pm
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        JAMES MADISON AND THE CONSTITUTION’S “CONVENTION FOR PROPOSING AMENDMENTS”

        JAMES MADISON AND THE CONSTITUTION’S 
        “CONVENTION FOR PROPOSING AMENDMENTS” 
        Robert G. Natelson
        *
         I. The Founders’ History: Prior Experiences with 
        Conventions ...................................................................... 432
         II. Madison and the Adaptation of the Convention to the 
        Amendment  ......................................................... 437
         III. Madison and the Amendments Convention as a Check 
        on the Federal Government .............................................. 441
         IV. Conclusion ........................................................................ 448
        Take some time and read this for Robert is one of the leading experts on Article V and nullification.


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:48pm
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        Implied powers V usurpation

         

        Again,
        we return to the subject of the courts continually citing the CASE LAW THEORY which is law school thinking - they live in the world of State Constitutions and not the Federal Constitution. In the Constitution there is ZERO  support for using the British common law case precedent; ie: there is zero language that would support the theory of Settled law or Stare decisis. 
        Most  to defeat themselves by posting case law without a foundation in the actual Constitution and its language - what the founders said in letters and papers helps explain some opinions they debated but none are even attempts to override the actual language of the Founders/Framers/Ratifiers. As explained in the Federalist papers - they Founders used everyday simple language in the construction of the constitution so that even a common man of the time could read and understand what the document said and what it meant - ie: no parsing or redefining the meaning of words. These men were highly educated and most could read and write in Latin [the legal language of the time] but they chose to keep it simple - all go to extreme efforts to extend the powers not granted.
        This is what all that desired to change the Constitution have done since the Court gave itself powers not granted by anyone. All have not yet provided a single item that extends the powers to redefine "CLAUSES" which are simply preambles or explanations of the preceding list list of enumerated powers. Neither grant any additional powers above and beyond the Article I section 8 enumerated powers. Not congress and not the courts or the executive branch have the power to redefine limits and powers. 
        The Founders did how ever provide a way to do what has been done by usurping it is called the Article V amendment . This has been used 27 times. Now all that being said - I will agree that the Supreme court has the power to hear cases on Constitutionality of laws passed by Federal or State legislatures. What then  are the duties and powers of the Court in these cases? IMO they can have two findings - either the law is constitutional by listing the language in the Constitution [not case law precedent] or they can find it in violation of the Constitution citing the language to support that finding. 
        Again there is no authority in the Constitution that I can find that would grant the courts to be able to build a foundation of case upon case until they have created a power where none existed. Example of this would be the use of the 14th amendment to reach  through and make findings that allows the courts to run , redistricting, equal rights laws, direct State or local governments to do as ordered. This is clearly LEGISLATING FROM THE BENCH and there is again no support in the language of the Constitution. Marbury V. Madison created the concept of Judical Review out of the think air.
        Many believe that first usurped power was the Issue of a National Bank under the necessary and proper clause which Hamilton argued, won and Washington signed.
        Let us now explore more recent cases that use the Necessary and Proper clauses - here is the first . . 
        City of Boerne v. Flores, 521 US 507 - Supreme Court 1997
        521 U.S. 507 (1997)

        CITY OF BOERNE
        v.
        FLORES, ARCHBISHOP OF SAN ANTONIO, et al.

        No. 95-2074.
        United States Supreme Court.
        Argued February 19, 1997.
        Decided June 25, 1997.
        CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
        509*509 509*509 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Thomas, and Ginsburg, JJ., joined, and in which Scalia, J., joined as to all but Part III—A-1. Stevens, J., filed a concurring opinion, post, p. 536. Scalia, J., filed an opinion concurring in part, in which Stevens, J., joined, post, p. 537. O'Connor, J., filed a dissenting opinion, in which Breyer, J., joined except as to the first paragraph of Part I, post, p. 544. Souter, J., post, p. 565, and Breyer, J., post, p. 566, filed dissenting opinions.
        Marci A. Hamilton argued the cause for petitioner. With her on the briefs were Lowell F. Dentonand Gordon L. Hollon.
        Jeffrey S. Sutton, State Solicitor of Ohio, argued the cause for the State of Ohio et al. as amici curiae urging reversal. With him on the brief were Betty D. Montgomery, Attorney 510*510 General of Ohio, Robert C. Maier and Todd Marti, Assistant Attorneys General, and the Attorneys General for their respective jurisdictions as follows: Malaetasi M. Togafau of American Samoa,Grant Woods of Arizona, Gale A. Norton of Colorado, M. Jane Brady of Delaware, Robert Butterworth of Florida, Calvin Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Mike Moore of Mississippi, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Michael F. Easley of North Carolina, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, and Julio A. Brady of the Virgin Islands.
        Douglas Laycock argued the cause for respondent Flores. With him on the brief were Thomas Drought and Patricia J. Schofield. Acting Solicitor General Dellinger argued the cause for the United States. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Patricia A. Millett, and Michael Jay Singer.[*]
        511*511 Justice Kennedy delivered the opinion of the Court.[*]
        A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA or Act), 107 Stat. 1488, 42 U. S. C. § 2000bb et seq. The case calls into question the authority of Congress to enact RFRA. We conclude the statute exceeds Congress' power.

        I

        Situated on a hill in the city of Boerne, Texas, some 28 miles northwest of San Antonio, is St. Peter Catholic Church. Built in 1923, the church's structure replicates the mission 512*512 style of the region's earlier history. The church seats about 230 worshippers, a number too small for its growing parish. Some 40 to 60 parishioners cannot be accommodated at some Sunday masses. In order to meet the needs of the congregation the Archbishop of San Antonio gave permission to the parish to plan alterations to enlarge the building.
        A few months later, the Boerne City Council passed an ordinance authorizing the city's Historic Landmark Commission to prepare a preservation plan with proposed historic landmarks and districts. Under the ordinance, the commission must preapprove construction affecting historic landmarks or buildings in a historic district.
        Soon afterwards, the Archbishop applied for a building permit so construction to enlarge the church could proceed. City authorities, relying on the ordinance and the designation of a historic district (which, they argued, included the church), denied the application. The Archbishop brought this suit challenging the permit denial in the United States District Court for the Western District of Texas. 877 F. Supp. 355 (1995).
        The complaint contained various claims, but to this point the litigation has centered on RFRA and the question of its constitutionality. The Archbishop relied upon RFRA as one basis for relief from the refusal to issue the permit. The District Court concluded that by enacting RFRA Congress exceeded the scope of its enforcement power under § 5 of the Fourteenth Amendment. The court certified its order for interlocutory appeal and the Fifth Circuit reversed, finding RFRA to be constitutional. 73 F. 3d 1352 (1996). We granted certiorari, 519 U. S. 926 (1996), and now reverse.

        II

        Congress enacted RFRA in direct response to the Court's decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). There we considered a Free Exercise Clause claim brought by members of the 513*513 Native American Church who were denied unemployment benefits when they lost their jobs because they had used peyote. Their practice was to ingest peyote for sacramental purposes, and they challenged an Oregon statute of general applicability which made use of the drug criminal. In evaluating the claim, we declined to apply the balancing test set forth in Sherbert v. Verner, 374 U. S. 398 (1963), under which we would have asked whether Oregon's prohibition substantially burdened a religious practice and, if it did, whether the burden was justified by a compelling government interest. We stated:
        "[G]overnment's ability to enforce generally applicable prohibitions of socially harmful conduct . . . cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is `compelling'. . . contradicts both constitutional tradition and common sense." 494 U. S., at 885 (internal quotation marks and citations omitted).
        The application of the Sherbert test, the Smith decision explained, would have produced an anomaly in the law, a constitutional right to ignore neutral laws of general applicability. The anomaly would have been accentuated, the Court reasoned, by the difficulty of determining whether a particular practice was central to an individual's religion. We explained, moreover, that it "is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." 494 U. S., at 887(internal quotation marks and citation omitted).
        The only instances where a neutral, generally applicable law had failed to pass constitutional muster, the Smith Court 514*514 noted, were cases in which other constitutional protections were at stake. Id. , at 881-882. In Wisconsin v. Yoder, 406 U. S. 205 (1972), for example, we invalidated Wisconsin's mandatory school-attendance law as applied to Amish parents who refused on religious grounds to send their children to school. That case implicated not only the right to the free exercise of religion but also the right of parents to control their children's education.
        The Smith decision acknowledged the Court had employed the Sherbert test in considering free exercise challenges to state unemployment compensation rules on three occasions where the balance had tipped in favor of the individual. See Sherbert, supra; Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136 (1987). Those cases, the Court explained, stand for "the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason." 494 U. S., at 884 (internal quotation marks omitted). By contrast, where a general prohibition, such as Oregon's, is at issue, "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to [free exercise] challenges." Id., at 885.Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.
        Four Members of the Court disagreed. They argued the law placed a substantial burden on the Native American Church members so that it could be upheld only if the law served a compelling state interest and was narrowly tailored to achieve that end. Id., at 894. Justice O'Connor concluded Oregon had satisfied the test, while Justice Blackmun, joined by Justice Brennan and Justice Marshall, could see no compelling interest justifying the law's application to the members.
        515*515 These points of constitutional interpretation were debated by Members of Congress in hearings and floor debates. Many criticized the Court's reasoning, and this disagreement resulted in the passage of RFRA. Congress announced:
        "(1) [T]he framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution;
        "(2) laws `neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise;
        "(3) governments should not substantially burden religious exercise without compelling justification;
        "(4) in Employment Division v. Smith, 494 U. S. 872 (1990), the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
        "(5) the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." 42 U. S. C. § 2000bb(a).
        The Act's stated purposes are:
        "(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U. S. 398 (1963) and Wisconsin v. Yoder, 406 U. S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and
        "(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government." § 2000bb(b).
        RFRA prohibits "[g]overnment" from "substantially burden[ing]" a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden "(1) is in furtherance of 516*516 a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." § 2000bb—1. The Act's mandate applies to any "branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States," as well as to any "State, or . . . subdivision of a State." § 2000bb—2(1). The Act's universal coverage is confirmed in § 2000bb—3(a), under which RFRA "applies to all Federal and State law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after [RFRA's enactment]." In accordance with RFRA's usage of the term, we shall use "state law" to include local and municipal ordinances.

        Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v.Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written."Marbury v. Madison, 1 Cranch 137, 176 (1803).

        Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA's provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H. R. Rep. No. 103-88, p. 9 (1993) (House Report). The Fourteenth Amendment provides, in relevant part:
        "Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process 517*517 of law; nor deny to any person within its jurisdiction the equal protection of the laws.
        . . . . .
        "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
        The parties disagree over whether RFRA is a proper exercise of Congress' § 5 power "to enforce" by "appropriate legislation" the constitutional guarantee that no State shall deprive any person of "life, liberty, or property, without due process of law," nor deny any person "equal protection of the laws."
        In defense of the Act, respondent the Archbishop contends, with support from the United States, that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise of religion, beyond what is necessary under Smith . It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law's effects accords with the settled understanding that § 5 includes the power to enact legislation designed to prevent, as well as remedy, constitutional violations. It is further contended that Congress' § 5 power is not limited to remedial or preventive legislation.
        All must acknowledge that § 5 is "a positive grant of legislative power" to Congress,Katzenbach v. Morgan, 384 U. S. 641, 651 (1966). In Ex parte Virginia, 100 U. S. 339, 345— 346 (1880), we explained the scope of Congress' § 5 power in the following broad terms:
        "Whatever legislation is appropriate, that is, adapted to carry out the objects the 
        Under our Constitution, the Federal Government is one of enumerated powers. McCulloch v.Maryland, 4 Wheat. 316, 405 (1819); see also The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison). The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the "powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written."Marbury v. Madison, 1 Cranch 137, 176 (1803).
        Congress relied on its Fourteenth Amendment enforcement power in enacting the most far-reaching and substantial of RFRA's provisions, those which impose its requirements on the States. See Religious Freedom Restoration Act of 1993, S. Rep. No. 103-111, pp. 13-14 (1993) (Senate Report); H. R. Rep. No. 103-88, p. 9 (1993) (House Report). The Fourteenth Amendment provides, in relevant part:
        "Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process 517*517 of law; nor deny to any person within its jurisdiction the equal protection of the laws.
        . . . . .
        "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
        The parties disagree over whether RFRA is a proper exercise of Congress' § 5 power "to enforce" by "appropriate legislation" the constitutional guarantee that no State shall deprive any person of "life, liberty, or property, without due process of law," nor deny any person "equal protection of the laws."
        In defense of the Act, respondent the Archbishop contends, with support from the United States, that RFRA is permissible enforcement legislation. Congress, it is said, is only protecting by legislation one of the liberties guaranteed by the Fourteenth Amendment's Due Process Clause, the free exercise of religion, beyond what is necessary under Smith . It is said the congressional decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law's effects accords with the settled understanding that § 5 includes the power to enact legislation designed to prevent, as well as remedy, constitutional violations. It is further contended that Congress' § 5 power is not limited to remedial or preventive legislation.
        All must acknowledge that § 5 is "a positive grant of legislative power" to Congress,Katzenbach v. Morgan, 384 U. S. 641, 651 (1966). In Ex parte Virginia, 100 U. S. 339, 345— 346 (1880), we explained the scope of Congress' § 5 power in the following broad terms:
        "Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not 518*518 prohibited, is brought within the domain of congressional power."
        Legislation which deters or remedies constitutional violations can fall within the sweep of Congress' enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into "legislative spheres of autonomy previously reserved to the States." Fitzpatrick v. Bitzer, 427 U. S. 445, 455 (1976). For example, the Court upheld a suspension of literacy tests and similar voting requirements under Congress' parallel power to enforce the provisions of the Fifteenth Amendment, see U. S. Const., Amdt. 15, § 2, as a measure to combat racial discrimination in voting, South Carolina v. Katzenbach, 383 U. S. 301, 308 (1966), despite the facial constitutionality of the tests under Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959). We have also concluded that other measures protecting voting rights are within Congress' power to enforce the Fourteenth and Fifteenth Amendments, despite the burdens those measures placed on the States. South Carolina v.Katzenbach, supra (upholding several provisions of the Voting Rights Act of 1965); Katzenbachv. Morgan, supra (upholding ban on literacy tests that prohibited certain people schooled in Puerto Rico from voting); Oregon v. Mitchell, 400 U. S. 112 (1970) (upholding 5-year nationwide ban on literacy tests and similar voting requirements for registering to vote); City of Rome v.United States, 446 U. S. 156, 161 (1980) (upholding 7-year extension of the Voting Rights Act's requirement that certain jurisdictions preclear any change to a "`standard, practice, or procedure with respect to voting' "); see also James Everard's Breweries v. Day, 265 U. S. 545 (1924)(upholding ban on medical prescription of intoxicating malt liquors as appropriate to enforce Eighteenth Amendment ban on manufacture, sale, or transportation of intoxicating liquors for beverage purposes).
        If you notice the case refers to many other cases but few actual limits or powers from the actual Constitution. Notice the use of the 14th amendment by Congress and the courts to reach through to the Religious freedoms on the first amendment. They then use the case law to justify actions and to "IMPLY they have these POWERS.
        Do they really have those powers? maybe this is why we have 5 to 4 and 6 to 3 and 7 - 2 decisions - case law precedent has changed the rules for the Constitutional tests by the court. When the Founders - Framers - Ratifiers created the Constitution did they intend that the Congress and the courts could modify words and meanings to avoid using the amendment process? Scholar are arguing on both sides of the questions but there appears to be just two schools of thought - it is a living document which the Congress and the courts can change at will - or it is set in time and place document that means what it says and says what it means.
        If one reviews requirements in law schools across the nation you will find most Lawyers on take one course in constitutional law and two years of Case Law theory - is there any reason to believe that they will all use case law theory to argue case - for that is what they are taught to do. As for the courts to use the Federalist papers [written to sell the Constitution to NY and other States] have the force of law behind them - again I find no language in the Constitution that allows that act?
        So, in conclusion, the enabling language used to avoid the limits of the Article I section 8 enumerated powers are not contained in the actual Constitution but are creations of the Three branches of government granting each other powers which I find no power or authority to support they had the ability to grant powers not expressed. Therefore all IMPLIED POWERS are but an illusion created to hide the usurping of the limits in the Constitution.



        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:50pm
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        Reply by Mangus Colorado on August 15, 2012 at 3:11pm
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        Hugh is more like what you had in mind? Let us see if we can garner enough interest in these heavy more legalistic discussions.
        Permalink Reply by Mangus Colorado on August 16, 2012 at 8:26am
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        The colonies had grown up under constitutions of government so different, there was so great a variety of religions, they were composed of so many different nations, their customs, manners, and habits had so little resemblance, and their intercourse had been so rare, and their knowledge of each other so imperfect, that to unite them in the same principles in theory and the same system of action, was certainly a very difficult enterprise. The complete accomplishment of it, in so short a time and by such simple means, was perhaps a singular example in the history of mankind. Thirteen clocks were made to strike together — a perfection of mechanism, which no artist had ever before effected. John Adams
        In this research, the gloriole of individual gentlemen, and of separate States, is of little consequence. The means and the measures are the proper objects of investigation. These may be of use to posterity, not only in this nation, but in South America and all other countries. They may teach mankind that revolutions are no trifles; that they ought never to be undertaken rashly; nor without deliberate consideration and sober reflection; nor without a solid, immutable, eternal foundation of justice and humanity; nor without a people possessed of intelligence, fortitude, and integrity sufficient to carry them with steadiness, patience, and perseverance, through all the vicissitudes of fortune, the fiery trials and melancholy disasters they may have to encounter. John Adams
        Quite interesting that the Founders forged 13 wide beliefs into a single document of such brevity that it has survived for 225 years of constant attack by the Courts and the Federal Government. Have we now found the end of the people patience? Will we force the States to take back our original form of government?
        Permalink Reply by John Tripp on August 16, 2012 at 9:53am
        Though I agree with your premise and desires stated above Mangus,  precedent case law is another area of the constitution the Framers thougt to be contained in Natural Law,  as property rights ( property meaning our homes and land in this case ).  The courts in this land used precedent case laws as a guide since day one.
        The Framers used British Common Law,  which is case laws amassed over time in coordination wih the words in the Magna Charta,  the words of Hume and Locke and Burke,  the words in the Declaration of Independence,  and the Federalists op-eds,  to name a few of the sources of reference to write the specific language in our founding document.  Quotes from the King James Bible were also widely used in arguements,  and to think these did not effect the votes of these 55 post reformation men would be naive.  I have tried to find an exception to this rule,  but even the Maryland delegation,  which had the only Catholic communities in the colonies for at least the first hundred years,  had no Catholic representation at the Convention in Philly in 1787.  
        In my short time as a paralegal apprentice for my first Father in Law,  every major case I saw had mention of the original words of the Declaration and the Constitution and in some cases the words of Locke and Hume,  as well as dozens of cherry picked precedent cases.   A recent example of this was Judge Vinson's opinions stated on the 26 individual state law suits filed against the Obamacare Bill in Florida.  I read all 95 pages of these opinions,  and he uses all of the sources mentioned above as references to his final verdicts.
        As a rule of thumb,  or just professional courtesy,  Judges almost always give the most credence to the most recent precedent case and / or the most pertainent case to the one on trial in front of them.  IMO,  most of the older case laws should be discarded for common sense reasons.  They were pre-empted for a reason,  and usually a good one,  and they now serve only to muddy the waters in a trial involving big money interests.  The big law firms can afford to hire teams of paralegals and lawyers in our current state of glut in that area,  just to find precedent cases which can remotely relate to theirs.   They can delay a trial for weeks,  months,  even years with these time and money consuming arguements.
        In the end,  as hard as I try,  I can find no better solution to the power seperations,  with the courts having the final say on all things litigable.  Imagine the ineptitude and corruption involved if the Legislative or Executive Branch would have this power.   The only viable answers I can come up with include term limits on Judges and Justices,  along with easier ways to bounce them from the bench.  The fact that only two federal Judges,  Alcie Hastings from Florida ( I believe in the 1970's ),  and SCOTUS Justice Samuel Chase,  in the late  1790's have been impeached and removed from their lifetime tenure,  tells a story unto itself.   Judicial activism has always been the rule,  not the exception for the big government proponents.  This has been taken to an entire new level in the past 60 years.   It was so evident that the birth of the 22nd Amendment came from FDR's stacking of the High Court.  This nation paid a dear price for this until the Rehnquist Court took control.  
        In the end,  I always refer back to Jefferson's thoughts on this.  He was aware this activism was inevitable and to keep the union civilized,  no matter how noxious the decisions were,  we must be patient and change things back via the ways the Framers gave us.  " Elections matter "  is so much more than a bumper sticker - it is a crime so many citizens take so much for granted.  The ones living in " poverty ",  do not realize they are tools and will only be the last ones eaten by the progressive agenda.  To get better judges and Justices,  we must control the Senate.  There has been no better chance to gain that power than this years elections.  23 Dems. are up for re-election,  with as many as eight being very vulnerable,  according to Dick Morris ( for whatever that's worth ).  In my life,  even the few times republicans had a majority in that body,  it was such a small majority as to not have one at all.    With the exception of being able to control the agendae being debated and voted on,  which in itself is extremely powerful,  the ability to ensure the Scalias of the world get put in seats on the High Court is as rare as hen's teeth.

        Permalink Reply by Mangus Colorado on August 16, 2012 at 10:34am
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        John,
        IMO and all of my reading and studying for 60 years, I find not one word in the Constitution that authorizes the use of BRITISH COMMON LAW as a basis for Federal Constitutional law - let us read  the Article III limits on the courts - So, my only conclusion as a ORIGINAL CONSTITUTION SUPPORTER is that the States that desired could use the Common law if they liked but it was not required or even allowed at the Federal level [Supreme Court powers are limited] Marbury V Madison was a usurpation and created a false power of Judicial review. It is not mentioned anywhere that I can find. . . . There are many mentions of Locke, Hobbs, Plato, and the others but the Founders - Framers - Ratifiers chose not to use them in the final version. Why?

        Article 3 - The Judicial Branch
        Section 1 - Judicial Powers

        The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services aCompensation which shall not be diminished during their Continuance in Office.
        (The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)
        In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under suchRegulations as the Congress shall make.
        The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
        Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
        The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

        Amendment 11 - Judicial Limits

        The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
        Further evidence that the Common law was not adopted . .  even by the states . . 
        But if Jefferson’s decimal coinage concept was a good idea that quickly spread around the world, another idea that developed here at that time was lousy: the so-called American Rule, whereby each side in a civil legal case pays its own court costs regardless of outcome. This was different from the English system where the loser has to pay the court costs of both sides. 

        The American Rule came about as what might be called a deadbeat’s relief act. The Treaty of Paris (which ended the American Revolution) stipulated that British creditors could sue in American courts in order to collect debts owed them by people who were now American citizens. To make it less likely that they would do so, state legislatures passed the American Rule. With the British merchant stuck paying his own court costs, he had little incentive to go to court unless the debt was considerable.

        The American Rule was a relatively minor anomaly in our legal system until the mid-20th century. But since then, as lawyers’ ethics changed and they became much more active in seeking cases, the American Rule has proved an engine of litigation. For every malpractice case filed in 1960, for instance, 300 are filed today. In practice, the American Rule has become an open invitation, frequently accepted, to legal extortion: “Pay us $25,000 to go away or spend $250,000 to defend yourself successfully in court. Your choice.” 

        Trial lawyers defend the American Rule fiercely. They also make more political contributions, mostly to Democrats, than any other set of donors except labor unions. One of their main arguments for the status quo is that the vast number of lawsuits from which they profit so handsomely force doctors, manufacturers, and others to be more careful than they otherwise might be. Private lawsuits, these lawyers maintain, police the public marketplace by going after bad guys so the government doesn’t have to—a curious assertion, given that policing the marketplace has long been considered a quintessential function of government.


        Permalink Reply by Mangus Colorado, Moderator on January 7, 2013 at 2:52pm
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        Reply by John Tripp on August 16, 2012 at 12:00pm
        Agreed - trial lawyers are considered slightly below whale feces on the scale of social acceptance for a reason !
        I also could have been clearer in my aguement on British Common Law.  You are correct,  the individual cases in British courts did not come up for revue as an arguement for one side or the other at the convention.   My point is just by using the words of Locke,  Hume and Burke,  which is much of the basis of the reformed British system of common law,  are also the same words used at the Philly Convention,  ergo -  the Common Law system must be by default much of the basis for our foundation.   This has been a given in all of my studies and debates over the years
        The Declaration of Independence can be placed in the same catagory.  All of the above are considered by the people sitting on the Bench,  as well as the original words of the Constitution,  in today's courtrooms.  My thoughts on precedent case laws pretty much match yours.  Each new case has inividual circumstances and should be ruled on without the fog from previous cases.  Most of the time,  the context of the times and definitions of the words in these cases nullify any valid arguement for either side.  They are used to confuse and stall.   Thus our system is mired in backed up cases,  up to ten years for some civil cases due to the rigid rules for repeals.   Quick and speedy have been delegated to the trash bin of impotent words written by the Framers.   We could go over every one of the Bill of Rights and speak volumes on how bastardized they have become. 

        We can speak indefinitely on the libraries of incidents causing the Framers to spin in their graves.  The only certainty is everything is constitutional until the Court of Final Jurisdiction has had it's say,  or new legislation is passed.  Until then,  everything this President has done by executive fiat and his proxy power delegated to the czars,  is constitutional.   The great news for us is it is constitutional on the federal level.  The Supremecy Clause and Commerce Clause will be challenged many times in the near future.  Pray Justice Roberts gets his meds on time !  The states have just begun to step up to the plate and use their rights as they were intended.
        The most recent case and potentially the most important reguarding getting the 10th Amendment back to where it belongs,  is Governor Brewer's Executive order in Arizona,  blocking the fiat put forth by Lord Obama in his new Amnesty program.  She has ordered all state law enforcement and DHS offices to not comply with Obama's new ruling,  which gives tens of thousands of illegal immigrants waivers on identification regulations which legal citizens have had to use forever.  A birth certificate must be presented,  not just a tax ID,  to get welfare benefits or voting rights.  See the whole story in the Washington Times  http://www.washingtontimes.com
        In another very recent ruling,  a Judge in Pennsylvania ruled Obama's ID rules do not over-rule the state's policy on voter IDs.  Civil Rights groups filed suit on this issue and were rejected.  Pernnsylvania ,  along with Ohio,  are the two largest swing states in the nation.  Both states also have big "issues " with Obama's energy policies on coal production.   This story is also from today's Washington Times.
        I have said this for three years running - the states shall be this nation's saviors.  They have been pushed via unfunded mandates to the point where they must fight of go belly up.  Cities from coast to coast have already started filing for bankruptcy..   Thanks to the Framers,  especially the ones from the smaller colonies,  who stood their ground against formitable foes,  we have hit a very soft wall compared to the Eurotrash and commie states.  This will start a trend towards conservative thought ruling the day,  and it is the start of a paradigm shift in America.  We are winning,  and in a much faster pace than I thought possible.  Amazing what desperation does to people !
        Once again - apologies for running tangents into the debate,  but the big picture must include them.  Please bear with my M.O.  
        Permalink Reply by Mangus Colorado on August 16, 2012 at 12:11pm
        Delete
        John,
        we have know each other for a few years and I appreciate your studious approach to our laws and Constitution. Never worry about an OPINION for that is all we now have die to the usurped powers of the court and the other two branches not complying with their oath of office to protect and defend from within or without????
        When is the last time the Congress sanctioned the Courts? I do not recall a single bill even proposed to the floor for debate much less presented to the President for his signature. Much of the current court system is based on Black's law which again can be OK in the States but again no ability to use same in the Constitution. They try to have it both ways but struggle to justify either.
        As you all know I am supporting the use of Article V to revoke the 14th, 16th and 17th amendments so the power would be as intended - at the State level. As the courts have used the 14th amendment to apply the Bill of Rights to the States which has killed the 10th amendment powers IMO
        Permalink Reply by John Tripp on August 16, 2012 at 2:20pm
        Agreed here 110% !  We have allowed the entire process to run roughshod over the people and the states.  It is time for pay back,  and I believe the majority of Americans are with us on this issue.
        Permalink Reply by Hugh Akston on August 16, 2012 at 10:36am
        Excellent conclusion. If a contract which I consider the Constitution to be; a contract between two parties involved, the People and the Government; can be altered by one party alone why have a contract? This is similar to most “Two year service agreements” that the service provider can alter the cost at will. Cell phones, cable or internet services that start at an “Introductory price” then raise their rates. If I agree to service for two years they should guarantee the price for the same period, isn’t that the purpose of a contract? So both sides know their rights, privileges and responsibilities? Shouldn’t any alteration of a contract require the agreement of all parties involved?
        Good Post.
        God Bless.
        Permalink Reply by Mangus Colorado on August 16, 2012 at 11:52am
        Delete
        Any reference to the Founders - Framers - Ratifiers leaving OPEN clauses so the future could make alterations to the Compact is an insult to the intelligence of the FF&R. These were extremely well educated and read people and they spend many years fine tuning the end document. If they intended there to be Judicial Review or the Bill of Rights to apply to the many States you think they would have left that out? I think not and in fact would argue that by including Article V they prove the point of a fixed in time, meaning and place for all times document. If the people require changes then the Congress or the States can propose amendments and then upon the ratification of the amendment by 3/4 of the State legislatures it is thereby modified.
        No, the Founders did not intend the powers of the government to be inclusive of some open powers or again why would they go to all the trouble to tie down the government in Article I section 8 - then they limited each house of congress and the executive. They knew tyranny and oppression very well and wanted to make sure that the people and States were protected.

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