Actually, the right does revere the Constitution
Josh Marshall's post about the right's phony fetish with an imaginary, Paulite Constitution featuring small, weak centralized government and all-powerful states nearly hits the mark. But the fact is, today's conservatives, largely led by Obama refusenks from the South, from South Carolina (home to Jim "Waterloo" DeMint as well as "you lie!" Congressman Joe Wilson) to Texas (where Gov. Rick Perry flirts with secession and where Freedomworks founder Dick Armey comes from) to Georgia (Newt Gingrich's home base) to Mitch McConnell's Kentucky, to the Republican "moderate" cross-dressers who duped the voters of Virginia, to Florida, where the attorney general, gubernatorial candidate Bill McCollum is leading the charge to trick tea partyers into believing it's possible to win a lawsuit over healthcare, and where Marco Rubio is running as a Jim DeMint Republican -- do indeed wish to return the country to the strict dictates of the Constitution. Only it appears they're referring to the constitution of the Confederate States of America.
Too harsh? Check out this description of the Confederacy's founding document, from a pro-Confederate website:
Its ideology far more conservative than revolutionary, the nation of seceded Southern states faced a paradox in maintaining a centralized government comprised of entities whose very motivation for departing the Union was their objection to federal authority. On February 4, 1861, representatives from the seven states Alabama, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Texas-that had already seceded from the United States met in Montgomery, Alabama, to form a new republic. On February 8, the convention announced the establishment of the Confederate States of America and declared itself the provisional Congress.
The following day, Jefferson Davis and Alexander Stephens were unanimously chosen provisional president and vice president, two men moderate enough, it was hoped, to convince the eight other reluctant slave states to join the Confederacy. A committee spent the next five weeks composing a national constitution, which was approved on March I 1. The document closely followed the U.S. Constitution-including its Bill of Rights-with a few notable differences. Language promoting "the general welfare" was omitted, while the right to own slaves was explicitly guaranteed although foreign slave trade was forbidden).
The president, serving a single six-year term, was given line-item veto power over the budget, and his cabinet awarded nonvoting seats in Congress. To guarantee Southerners their much-desired states' rights, the federal government had no authority to levy protective tariffs, make internal improvements, or overrule state court decisions, while states had the right to sustain their own armies and enter into separate agreements with one another, and were given greater power in amending the constitution. Although there was a provision for a federal Supreme Court, Southern legislators could never agree on its configuration or even the wisdom of its establishment, and so the Confederacy lacked a high court throughout its existence. The provisional Congress sent three envoys to Washington to try to negotiate a final, peaceful split from the United States, although at the same time preparing for combat by establishing an army.
The site goes on to discuss how the states rights factions became so fractured, they began accusing Davis of attempting to wield dictatorial power, and how by the time the Confederate government was fully formed, many of the state governments were anti-Davis, so much so that:
Some even advocated that their states secede from the Confederacy and form separate countries. After the next congressional elections, held over a nearly six-month period in 1863 due to the logistical problems of the Union military presence across the South, nearly two-fifths of the Confederate House and one half of the Senate were openly anti-administration. Besides the actual waging of the war and futile attempts to win formal recognition from European nations, the Confederate government's main concern was raising money for the costly military effort.Hampered by constitutional limitations, its attempts included issuing paper currency, which brought rampant inflation, seeking loans and selling government bonds, which did not produce sufficient revenue, and passing tax and tax-in-kind legislation, which was hugely unpopular. As the South suffered continued military setbacks, the government's daily operations were sorely impeded, with congressional members from Union-occupied territories unable to serve in the capital and much of the country essentially out of the Confederacy's jurisdiction.
In other words, the small, weak federal government to the extreme focus on "states rights" to the obsession with rejecting the levying of taxes, even to the detriment of a war effort, today's "conservatives" are in many ways, just yesterday's Confederates, slightly warmed over.
Nicely handled.
I only add my usual: 99.9% of instances someone is beating his chest about the Constitution, it is a tell --
They don't know what the Constitution is or just about anything else.
April 8, 2010 2:37 PM | Reply | Permalink
The wingnuts invoke the US Constitution on average every half-second -- either to justify their claims of "rights" that cannot exist, or to condemn everyone who disagrees with their gibberish as being unAmerican.
At the same time they insist that the Constitution they are bound to defend against the hoards of unAmericans, and other "aliens," authorizes destruction of the Constitution.
The want to destroy the Constitution in order to save it.
The latter being the reality, why bother reading it first?
US Con. Art. I., S. 8, C. 15. The Congress shall have Power To call forth the Militia to execute the Laws of the Union, [and] suppress Insurrections.
And all that is wrapped in "religion" perverted to the defense of war and killing. The proper word for which is "terrorism".
As for the specifically "Confederate"/anti-American Southerners:
How does the Civil War as "war between the states" work? Did Lincoln, the Federal gov't, and the Union military, sit on the sidelines and do nothing?
As for the Confederate constitution: it was essentially the same as the US -- with two basic differences:
1. It prohibited enacting any laws that would adversely affect the institution of SLAVERY.
2. It prohibited amendment of the constitution in any way that would adversely affect the institution of SLAVERY.
And it stipulated that that institution be perpetual.
April 8, 2010 4:58 PM | Reply | Permalink
They say that the Constitution guides their every malevolent misdeed. Even claim the Constitution prohibits health care; probably over half of them believe this ludicrous claim.
Didn't know about the Confederate Constitution, thanks
April 8, 2010 7:00 PM | Reply | Permalink
The Confederate constitution is available online.
April 8, 2010 7:07 PM | Reply | Permalink
The Constitution, as well as the founding fathers themselves, specifically envisioned a loose confederation of strong states led by a small central government with a charge to set coherent strategic focus to local tactical efforts.
That is the historical record as laid down since the beginning of the country.
It has always been a battle between Washington and Jefferson with their love of diffusion of power via local control versus Adams and Hamilton with delusions of grandeur born on the shoulders of a strong federal government.
That the latter pair won as our history rolled out doesn't make the result any more noble or without taint. Nor does it make the federal juggernaut immune to just criticism with regards to its many trespasses.
Allusions to "states rights" as somehow being all about slavery and racism keep us from examining whether or not stronger states and more local control doesn't make more sense in today's wildly diverse and fluid world.
The EU is making such a model work, having stolen it from us. Irony is still our biggest blind spot. Like a representative government out control via lack of participation.
April 8, 2010 5:19 PM | Reply | Permalink
The Civil War along with three Amendments passed within five years of its aftermath changed the CONSTITUTION. The right wing is dealing with a constitutional perspective THAT DIED FOREVER 140 years ago.
And argue intent all you wish but legislation commonly known as 1981,1982,1983 demonstrate exactly what that intent was. The singular purpose was to take away many of the rights that were given to the states by the Taney fascist court.
The Supreme Court quashed it all of course following Reconstruction. But those statutes live on today. They have been dug up, polished off and appear in pleadings to this day.
the end
April 8, 2010 7:17 PM | Reply | Permalink
That is one way to look at it, but avoids the underlying question as to whether or not this is the most effective means of ruling a diverse country.
The federal government is no less out of control and unaccountable under President Obama than it was under President Bush, so perhaps the precedent you cite is the exact one the Founders sought to avoid by strictly limiting the powers of the central government.
I find your view to be lacking in the various shades of gray that accompany the tale, one that is hardly at its end.
April 8, 2010 7:24 PM | Reply | Permalink
The Central gov't, intendedly powerful, even if limited, is nonetheless SUPREME OVER the states.
SUPREMACY CLAUSE.
End of the "states' right" America-hating defense of the "grays" of slavery -- so long as we don't look at the black and white of it, as it is seen by those who haven't the right to act "gray".
April 9, 2010 12:22 AM | Reply | Permalink
America hating? Wow. You really have become that which you purport to hate. Congratulations.
April 9, 2010 7:32 AM | Reply | Permalink
Those who defend slavery, directly by by making excuses for it, are opposed to the Constitution and rule of law. That diminishes the rule of law, and the country; and that is America-hating.
April 9, 2010 5:05 PM | Reply | Permalink
I won't hold my breath waiting for you to produce a quote of anyone supporting slavery. Your imagination is not an actual source.
April 9, 2010 6:11 PM | Reply | Permalink
To make excuses for and defend slave-mentality racists and their racism is support for both racism and slavery.
Did you know that the Constitution doesn't include the word "privacy"? That being the fact, why do you not put your non-private psychiatric records online for everyone to read?
April 9, 2010 6:17 PM | Reply | Permalink
Wow. Through the looking glass, eh?
April 9, 2010 6:26 PM | Reply | Permalink
You do have the expertise afforded by having the experience of going through that mirror to the other side.
April 9, 2010 7:42 PM | Reply | Permalink
"The Constitution, as well as the founding fathers themselves, specifically envisioned a loose confederation of strong states led by a small central government with a charge to set coherent strategic focus to local tactical efforts."
You got some support for this claim?
Because, unlike you, I studied constitutional law for a year. And the inescapable conclusion from reading 220+ years of constitutional jurisprudence is that you got this exactly wrong. The only people who agree with you are conservatives hacks with an axe to grind.
The primary author of the Federalist Papers and of the Constitution itself was Alexander Hamilton, the arch-Federalist. The anti-Federalists were relegated to adding a Bill of Rights to a document they felt gave far too much power to the central government.
Here's a hint: as someone who relishes lecturing others on their ignorance and their blind adherence to ideology, maybe you should know what you're talking about before you get on that high horse of yours.
April 8, 2010 10:55 PM | Reply | Permalink
Typo: should be "Federalist Papers" only.
April 8, 2010 11:01 PM | Reply | Permalink
Most credit primary authorship of the Constitution to Federalist Madison. It was he who lead the successful argument, in the Convention, that there was no need for a Bill of Rights.
Same goes for the Bill of Rights:
It was a successful FEDERALIST idea that offering the Anti-Federalists opportunity for proposed amendments might persuade them to support ratification of the Constitution.
The proposed amendments which resulted were written by a Federalist.
Then all proposed amendments were codified by Federalist Madison as a resolution and submitted to Congress for debate.
The Madison and Hamilton portions of The Federalist are about equal.
April 9, 2010 12:30 AM | Reply | Permalink
Thanks for the clarification. I was going to throw in some references to Madison (hence the typo), but my comment started to go off on a tangent. My understanding, though, is that Hamilton write about 60% of the Federalist Papers.
But, as you have thoroughly and convincingly demonstrated here, the idea that the Constitution was a document primarily intended to limit federal power over the states has little to no support in the document itself, the history behind its conception, or the resulting interpretation of it by the courts.
April 9, 2010 12:38 AM | Reply | Permalink
It was essentially to do that lacking in the Articles: establish power over the states.
The states, in ratifying the Articles, agreed to pay a fixed amount every year to the central gov't for such as national defense. But they repeatedly didn't do so, so had national defense been necessary, the states would have been on their own.
But the central gov't hadn't the power to enforce the agreement. And even had it the power, it didn't have the money . . .
April 9, 2010 12:45 AM | Reply | Permalink
230 years of American History as well as novels and debates from the Constitutional Convention itself. What is your evidence? Right, The Federalist Papers. Gotcha.
April 9, 2010 7:45 AM | Reply | Permalink
Interesting how you juxtapose "love of diffusion of power" with "delusions of grandeur".
As you then immediately point out, "the latter pair won" - which leaves me to conclude that Adams and Hamilton were not delusional at all - at least not in their vision that strong Federal control would win out and result in the most powerful nation on earth.
We can quibble about whether it's good that the US is the most powerful nation on earth - but but it does seem clear that the grand vision has been realized.
April 9, 2010 11:01 AM | Reply | Permalink
That vision seems at direct odds with the reason the country was formed to begin with as well the vision articulated in the Declration of Indpendence.
I think that without a strong central government most of our imperial misadventures would have never occured and that was precisely the thing most of the founders were trying to avoid.
April 9, 2010 11:50 AM | Reply | Permalink
The Constitution, as well as the founding fathers themselves, specifically envisioned a loose confederation of strong states led by a small central government with a charge to set coherent strategic focus to local tactical efforts.
_____
1. That was the Articles of Confederation -- which haven't been in effect since the Constitution was ratified.
2. Your assertion isn't even up-to-date with the Anti-Federalists -- and the Anti-Federalists LOST the argument, therefore their views have no legal currency.
3. Let us know when you've read The Federalist.
". . . . [T]he Constitution [was] an intensely nationalist instrument, crafted almost from first to last for the express and understood purpose of creating a supreme and extremely powerful central government. . . . [Emphasis mine.]
". . . . The Constitution was a revolutionary document replacing the confederation mode with a complete three-part national government supreme over the states. The most pressing need was to allow the federal government to tax to pay off the Revolutionary War debts because, in the next war, the United States would need to borrow again. . . . [T]he proponents' anger at the states [was] for their recurring breaches of duty to the united cause . . . . Other issues were less important. Back-Cover blurb, Righteous Anger at the Wicked States: The Meaning of the Founders' Constitution (NY: Cambridge University Press, paperback, 2005), Calvin H. Johnson.
April 8, 2010 7:19 PM | Reply | Permalink
The Constitution, not the articles of confederation, limited the role of the central government and reserved ALL rights not specifically granted to the states.
That there were holes in the document big enough to drive a truck through is beside the point. The only way the Constitution gets signed and ratified by the Colonies is if their autonomy was preserved from the beginning.
Your understanding of history is obscured by ideological blind-spots that prohibit a more complete understanding.
April 8, 2010 7:28 PM | Reply | Permalink
In other words, the interpretation of the Constitution over two centuries by Supreme Courts liberal conservative doesn't matter.
But Jason's interpretation does.
April 8, 2010 11:04 PM | Reply | Permalink
Anything that starts with "In other words..." is always going to be a deliberate misinterpretation of what was said.
Thanks for proving the rule, though it would nice to see a bit more exceptions to the rule around here so that we could actually have civil discussions.
You seem to think that all of this settled, case closed.
People who do American History for a living are still debating the finer points of these matters, yet you claim some sort of authority? On what grounds?
Right. Gotcha.
April 9, 2010 7:31 AM | Reply | Permalink
Debating the finer points, maybe. But I'm not the one who started this discussion out with this:
"The Constitution, as well as the founding fathers themselves, specifically envisioned a loose confederation of strong states led by a small central government with a charge to set coherent strategic focus to local tactical efforts."
I was simply pointing out that this statement is incorrect. There was tension between those wanting a loose confederation and those wanting a strong central government. The federalists (those favoring a strong central government) won.
As I said, anyone who has studied the interpretation of the constitution by the courts, as I have, knows that the arguments about the federal power are mostly confined to narrow exceptions to its reach over the states.
Those advocating a Tenth Amendment-or-enumereated power-dependent rollback of power to the states are not taken seriously by scholars.
But you've read a few books that say otherwise. This apparently trumps over two hundred years of constitutional jurisprudence and scholarship that refutes your argument. Got it.
April 9, 2010 10:35 AM | Reply | Permalink
We are not talking about where we ended up through two centuries of misreading that document, but what the original intent of our Constitutional form was as negotiated during the constitutional convention.
It is in the name of our country - the United STATES of America - and was always a compromise between central authority and local autonomy.
That you continue to disagree with a point of historical fact that has been largely decided seems an off position to take. Perhaps you should increase the list of books you have read as well.
April 9, 2010 12:02 PM | Reply | Permalink
The historical facts are that we have a strong central government, and that that government has never been successfully challenged on constitutional grounds. Again, I think you're substituting your poorly informed opinion for "historical fact," which you would fail to recognize if you tripped over it.
Which you have. Repeatedly.
April 9, 2010 3:13 PM | Reply | Permalink
You continue to argue the sky is blue when I am talking about whether or not blue is the best shade the sky can produce. OK. Sure. The sky is blue, but that is beside the point.
April 9, 2010 3:19 PM | Reply | Permalink
The Constitution, not the articles of confederation, limited the role of the central government and reserved ALL rights not specifically granted to the states.
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The Constitution ALSO imposes LIMITS and PROHIBITIONS on the STATES.
Otherwise, Madison, credited by many as most responsible for their being a Constitution, and also for both Constitution and Bill of Rights, asserted the intent to create a powerful, central, SUPREME Federal gov't. And that is what was done.
He also, also in The Federalist, defends that intent, at length.
Cut to the chase: this is the definitve:
The Federalist (Middletwon, CT: Wesleyan University Press, 1961), Edited, with Introduction and Notes, by Jacob E. Cooke.
In addition to those facts, Federalist No. 84 goes on at length as to why no Bill of Rights was needed, including this explicit statement:
"I go further, and affirm that bills of rights, . . . are not only unnecessary . . . but would even be dangerous. Id., at 579.
Let's us know when you've finally READ it.
"That there were holes in the document big enough to drive a truck through is beside the point."
I don't think so. In fact, your anti-Constitutional faction insists if a thing is not expressly prohibited is therefore legal. You "Libertarians" call them "loopholes" when the economic gain is someone else's instead of your own.
"The only way the Constitution gets signed and ratified by the Colonies is if their autonomy was preserved from the beginning."
In order to become a member of the United States -- and this had also to be explicitly done, in writing, by the Original Thirteen -- they had to submit a petition for admission. The Congress -- no one state -- then voted "Yes" or "No". In all instances it was "Yes"; but had t been "No," then tough cookies for the wannabe state as concerns membership.
In addition, the state expressly swears that it will conform itself to the Constitution, in keeping with the Supremacy Clause. It swears it will uphold the Constitution and laws of the United States.
And the Supremacy Clause expressly stipulates that all other law is subordinate to the Constitution, and any state provision, in constitution or statute, inconsistent with the Constitution and laws pursuant thereto, is null-and-void.
No state is equal to or superior of the Federal Constitution/gov't. All states are subordinate to Federal gov't and law.
The Supremacy Clause does not stop somewhere in the air above a state, blocked by UNConstitutional state interposition and nullification. The Supremacy Clause applies all the way to the grond of every state.
And that is exactly as intended: if the Bill of Rights protects the citizen from Federal gov't violations of those rights, then it also establishes those rights, and protects the citizen from violations of those rights by his state gov't.
That is the fact because every citizen is not only a citizen of his state of residence. He is also a citizen of the United States. Thus the Federal Bill of Rights guarantees every citizen the rights in the Bill of Rights even against its own state's gov't by force of the Supremacy Cluse.
April 8, 2010 10:54 PM | Reply | Permalink
There is no "Supremacy Clause" in the Constitution. In fact, the word "Supremacy" doesn't even appear in the document. The States were not meant to be subservient to the federal government.
All changes to the document must be ratified by the states. The individual States were the main power in the country until World War I when Woodrow Wilson basically delivered on Alexander Hamilton's vision of a strong, central government.
That both Jefferson and Washington were spinning in their graves is of little consequence I suppose. These matters were not black and white in their own days. They are certainly no more so today, despite you wanting to shut down all conversation contrary to your rather narrow view of history.
A huge, unaccountable juggernaut of a federal government that runs roughshod over its citizen's rights is exactly what the founders sought to avoid, else they would have just abolished states altogether.
April 9, 2010 7:42 AM | Reply | Permalink
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."
Article VI, Clause 2, United States Constitution.
You just keep reinforcing your ignorance on this subject, jason. It's getting embarrassing, frankly.
April 9, 2010 10:58 AM | Reply | Permalink
Supreme and Supremacy are two totally different standards when it comes to the law, else the states wouldn't be charged with ratifying changes to the Constitution.
The document also states that any right not specifically granted to the federal government shall be reserved for the states, rights that have been systematically eroded over the last two centuries with widespread consequences.
I find it hilarious that "liberals" now argue for a more powerful federal government as being the answer to our woes when it is clearly the cause of many of our most lingering problems.
The federal government and state governments were always been to be equal halves of the American coin.
April 9, 2010 11:55 AM | Reply | Permalink
Supreme and Supremacy are two totally different standards when it comes to the law,
_____
That is nonsense, so I'll bet you can substanatiate it.
The term used in law for the Constitutional clause quoted for you -- which expressly stipulates that the Constitution is "the supreme Law of the Land" is --
Supremacy Clause.
Because that's what it is -- and does.
That amending the Constitution must rely on the states' approval does not require that ALL states must approve. And states which disapprove are nonetheless required to comply with even those amendments they opposed.
April 9, 2010 5:17 PM | Reply | Permalink
The "supreme law of the land" included a specific framework that allowed for strong, autonomous state governments within a defined, yet limited, federal government. You dismiss the limits in preference for the supremacy.
April 9, 2010 6:17 PM | Reply | Permalink
In addition to the Supremacy Clause, the Constitution includes LIMITS ON STATES.
As for the "limitations" of the Federal gov't by the Constitution: those same limitations apply to the states by force of the Supremacy Cluase.
In addition:
US Con. Art I., S. 8, C. 15. The Congress shall have Power To provide for calling forth the Militia to execute the Laws of the Union, [and] SUPPRESS INSURRECTIONS.
That's the militia Federalized. And this is for when it isn't Federalized:
Art. I., S. 8, C. 16. The Congress shall have Power To provide for organizing, arming, and disciplining, the Militia, . . . reserving to the States respectively, . . . the Authority of training the Militia according to the discipline prescribed by Congress.
In all instances, at all times, the Militia is UNDER the FEDERAL Congress. And the Congress continues to be SUPREME OVER the states.
April 9, 2010 6:25 PM | Reply | Permalink
You ready to march people off to the camps now?
April 9, 2010 6:27 PM | Reply | Permalink
Red herring.
April 9, 2010 7:43 PM | Reply | Permalink
Smoked or fried?
April 9, 2010 8:05 PM | Reply | Permalink
As you wish: it's your red herring.
April 9, 2010 8:12 PM | Reply | Permalink
"A huge, unaccountable juggernaut of a federal government that runs roughshod over its citizen's rights is exactly what the founders sought to avoid, else they would have just abolished states altogether."
This is such a piece of jingoist right-wing propaganda that I have finally decided I will skip your comments on the subject of the Constitution.
I do, however, appreciate the, sort-of, balance that your comments on other subjects brings to this site (particularly the current state of the Republican party and bipartisanship in general).
But you may want to read "The Federalist", or "The
Present Age in America" (Roger Nisbet) for a brief understanding of the framers and what their thoughts on this subject might really have been.
April 9, 2010 12:01 PM | Reply | Permalink
Jingoistic, huh? You should learn to read (and comment) without your partisan blinders firmly in place because this is just a knee-jerk response that is almost caricature.
As to The Federalist Papers, that is certainly half of the story at the time and represents one of the two prevailing views that informed the Constitution. Perhaps you should look into the other half of the equation as articulated by Thomas Jefferson and George Washington. 1776 by David McCullough is a good place to start.
By the way, are you honestly saying our $4 trillion a year federal behemoth is accountable to We The People who pay the bills?
I suspect you were singing a different tune a few short years ago and basically nothing has changed except for the color of the drapes in the Oval Office. The huge, sprawling structure is still in place and still as riddled with fraud, waste and abuse as it was under Bush.
April 9, 2010 12:08 PM | Reply | Permalink
I don't know how "reading 220+ years of constitutional jurisprudence" answers the question, but it seems to me that jason everett miller wins the original intent argument (applicable over the first four score and seven years) and brewmn61 wins the living Constitution argument for the post-New Deal period (until the appointment of Roberts and Alito?). The post-Civil War (Lochner Court) to the "Switch in Time" (Commerce Clause) period is problematic.
Is there a real debate over whether up until the Civil War the states acted as sovereigns which sent their diplomats to meet regularly on the Potomac to negotiate their various commercial interests (tariffs and property rights including the right to hold slaves in newly opened federal territories) or that the federal government exercised minimal jurisdiction over the activities of U.S. citizens within the borders of the country?
But times change and the Constitution changes (or is reinterpreted).
April 9, 2010 12:31 PM | Reply | Permalink
I guess my main point is that for more than 150 years we have been trying the Inviolate Federal Government route and have an historical record to judge whether or not that was the most effective way we could have managed things.
Based on the continuing inequities in our system and some of the most progressive laws currently on the books coming out of State legislatures, I would say the facts are clear that we made some mistakes in allowing for such a nationalistic paradigm to develop.
The Federalists got exactly what they were seeking more than 230 years ago - An American Empire that dominates the globe economically and keeps individual states well under thumb at home.
April 9, 2010 2:19 PM | Reply | Permalink
Well, only if you consider McCullough v. Maryland (1819) and Gibbons v. Ogden (1824), which together established the Supremacy of the US constition and the broad reach of the Commerce Clause as "anti-federalist" decisions, based on the "original intent" of the Constitution. Most Tenthers do not share that opinion, assuming they have a clue that these decision even exist.
And both were decided over a century before the New Deal, and have never faced serious challenge in all that time. The fact that we were a largely agrarian, sparsely populated country has much more to do with the nature of our federal government pre-Civil War than constitutional interpretation. As I indicated, the federal Leviathan was born, at least in constitutional theory, over four decades earlier.
Let's also not forget that Andrew Jackson, considered an archetypal anti-federalist, was willing to wage war against John C. Calhoun and the South Carolina militia when they threatened secession during his presidency. So, one could argue that the federalism that Jason advocates has been pushed aside every time the federal power found it expedient.
And, further indicative of Jason's muddled thinking on theses issues, he seems to find fault with the expansion of federal power chiefly because of our imperial endeavors abroad. What this has to do with federalism as it's traditionally understood is anybody's guess.
April 9, 2010 3:08 PM | Reply | Permalink
Federalism, as the name implies, is the Hamilton crowd's word for a strong federal government with the states being subservient to its power.
The opposite of that notion is republicanism, as espoused by Jefferson and his crew, is what won the day during the constitutional convention and in our actual Constitutional framework.
Go ahead and continue to make such basic mistakes and then claim it is my thinking that is muddled. You are quite obviously incapable of practicing even a modicum of intellectual honesty.
April 9, 2010 3:24 PM | Reply | Permalink
Jefferson was hardly the epitome of republican governance when he was president. Louisiana Purchase, anyone?
April 9, 2010 3:37 PM | Reply | Permalink
Hypocrites abound in the American experiment.
April 9, 2010 6:20 PM | Reply | Permalink
I wouldn't argue with your implied assertion that John Marshall was successful -- beyond his wildest dreams -- of making something (the Supreme Court as final arbiter of federal and state legislative acts) out of very little (the Supreme Court as described in the Constitution).
I think it's time for a progressive president to say "“flatly that he or she would not accept the Supreme Court’s verdicts because the power of judicial emasculation of legislation was not — and never had been — in the Constitution.” Burns, James MacGregor. Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court
April 9, 2010 4:45 PM | Reply | Permalink
Not only is that false -- and you don't substantiate it for more reasons than it can't be substantiated becasue false -- the source you cite is not law. It is opinion.
These are legal authority:
Constitutions
Statutes
Regulations
Case law
Legislative history.
All else is non-law. We don't determine the law by means of non-law. Non-law includes the opinions of unelected private citizens, regardless their names.
April 9, 2010 5:09 PM | Reply | Permalink
"Case law" is said -- the idea appears nowhere in the Constitution -- to empower the Supreme Court to emasculate legislation enacted by the democratically elected representatives of the people -- a self-serving doctrine which serves to (Surprise! Surprise!) extend its power.
The remainder of your authorities have nothing to do with the objection Burns raises; indeed, Burns' very point is that the Supreme Court ("case law") subverts the intent of the "Constitution" by setting aside duly enacted and adopted "statutes" and "regulations" and ignoring "legislative history."
April 9, 2010 9:07 PM | Reply | Permalink
Can an act of government violate the Constitution? If so, what is the remedy?
April 9, 2010 10:44 PM | Reply | Permalink
Hmm.
I'd say no, but the act can violate a society's notion of fair play and justice.
In such a case the court house doors should be wide open to the end of correcting the harm caused to plaintiffs by government officers acting in default of those notions -- or acting "lawfully" under laws which fail to abide by those notions.
That doesn't mean that federal courts should entertain claims arising out of state government laws or their officials' acts. There in egregious cases the only remedy may be moving away.
Question. Would the governing body of New London have condemned the Kelo property in the face of my "fair play and justice" rule?
April 10, 2010 2:17 AM | Reply | Permalink
"Case law" is said -- the idea appears nowhere in the Constitution -- to empower the Supreme Court to emasculate legislation enacted by the democratically elected representatives of the people -- a self-serving doctrine which serves to (Surprise! Surprise!) extend its power.
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I don't know who says that other than you -- you provide no names.
But that doesn't surprise. To clarify:
1. The judiciary is established essentially to reolve conflicts over law. The conflict is typically over an enactment by a legislative body. By, that is, the legislative branch.
2. This is what happens: You sue for neighbor murdering your dog. Your complaint to the court would cite to all existing good law that supports your view. Where there are solid conflicting authorities on the same issue, one must cite to those -- as a matter of ethics -- and then distinguish them from your position.
3. The other party takes a different position on the meaning of the law in question. The court applies the current law to the question the parties are contesting.
4. The decision by the court resolving the question is called:
CASE LAW. It is also known as "common law" and "judge-made law".
"The remainder of your authorities have nothing to do with the objection Burns raises; indeed, Burns' very point is that the Supreme Court ("case law") subverts the intent of the "Constitution" by setting aside duly enacted and adopted "statutes" and "regulations" and ignoring "legislative history."
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Does he substantiate that claim? If so, on what authorities -- to what specifically does he cite? Any or all of these:
Constitution
Statute
Regulation
Case law
Legislative history.
April 10, 2010 8:57 PM | Reply | Permalink
The judiciary is established essentially to . . . .
Burns isn't discussing the "judiciary." He's discussing a specific agent, namely, the Supreme Court, and a special case, namely, the court's claim -- nowhere expressed in the Constitution -- that it is empowered to set aside laws and regulations duly enacted and adopted by the people's representatives.
Your argument doesn't address Burns' opinion* and is nothing but special pleading.
* BTW the explanations the Supreme Court attaches to its actions (decisions) are nothing but opinions; indeed that's what they themselves call them. What makes you think -- as you seem to -- that John Marshall's opinion or Clarence Thomas' is any sounder than Burns'?
April 11, 2010 12:41 AM | Reply | Permalink
Burns isn't discussing the "judiciary." He's discussing a specific agent, namely, the Supreme Court, and a special case, namely, the court's claim -- nowhere expressed in the Constitution -- that it is empowered to set aside laws and regulations duly enacted and adopted by the people's representatives.
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Spacey -- may I call you Spacey? --
The three branches of gov't are CO-EQUAL. The SC can overturn the Congress -- legislative enactments. Laws.
And the Congress can overturn the SC. See "Civil Rights Restoration Act" of 1985 as example.
April 11, 2010 12:45 AM | Reply | Permalink
"The opposite of that notion is republicanism, as espoused by Jefferson and his crew, is what won the day during the constitutional convention and in our actual Constitutional framework."
So every Supreme Court, beginning with the Marshall Court, is wring, and you are correct in this statement?
I'm done here. Keep saying the sky is green because you want it to be. You are profoundly ignorant of American history.
April 9, 2010 3:41 PM | Reply | Permalink
Again, you are talking about events that happened decades after the moment in time my quote is speaking to, which is the constitutional convention and the reason they designed a limited central government that derived its authority from a union of autonomous states.
April 9, 2010 6:14 PM | Reply | Permalink
You either know you're lying -- evv eryone else here knows that -- or you're dumber than a dead vacuity.
April 9, 2010 6:26 PM | Reply | Permalink
Word.
April 9, 2010 6:31 PM | Reply | Permalink