Posted on 11/04/2005 5:54:41 AM PST by .cnI redruM
"P.S. You seem quite knowledgeable of the Federalist papers. I am currently in a discussion about search and seizure with another FReeper. I have found the PA assembly discussions on the issue in the Anti-Federalist documents but can't seem to locate such a discussion from the Federalist side of the issue. Any pointers?"
This was a little opaque.
Which issue was a Pennsylvania Assembly discussing? Judicial review or something else?
As to the Federalist Papers view of what would prevent a runaway Supreme Court, my read is that the authors didn't really envision that could happen (runaway judicial activism was not a feature of Anglo-American history up to that point).
I think that what they probably had in their mind as the legislative break on a runaway judge was not legislative override of the court or restriction of legitimate jurisdiction, but rather, impeachment.
I think that the bigger concern was executive excess. What would happen if the executive abused his power. Impeachment was the answer.
Also, that funds could be cut off.
However, to maintain the independence of the judiciary, Hamilton pointed out that judges' salaries could not be reduced at all by Congress, so that the power of the purse did not limit judicial independence.
I think, in truth, nobody dreamt that the judiciary would be able to go as far as it has, because powerful judges were not in their experience, and they did not know how strong the "cult of law", raising the concept of law practically to the point of idolatry, would so deeply sieze hold of the American mind.
Re - benefits: The courts won't let them - stop the bennies.
Not gonna happen anyway - if they won't drill in ANWR, they sure ain't gonna push a Constitutional Amendment against anchor babies.
Yeah, right after the GOP allows drilling in the Arctic wastelands.
Isn't this rule based on the 14th amendment?
The 4th Amendment is clear on warrants: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Constitution is utterly clear on warrants, and the law has been this way since 1789.
What the Americans of that era hated were general warrants that were issued (they were called "writs of assistance") which gave agents of the Crown the power to search for contraband without any limitation. With the 4th Amendment, they very sharply limited the circumstances under which a warrant could be issued, by whom, and for what purposes. They also put the asking for a warrant under the penalties of perjury, by requiring an oath to be sworn out.
I see the problem very, very clearly.
It's a problem of anachronism.
Everyone is thinking of today, and there are certain features of today that did not exist in 1787.
Here is one: professional police forces. There weren't any police forces in 1787.
And here is the second: sovereign immunity. There was sovereign immunity in 1787, of course, but it only applied to the sovereign. The STATE could not be sued by somebody, unless the state agreed to it.
But here's the real rub: it was not until the 20th Century that OFFICERS of the state became "the state" for the purposes of sovereign immunity.
So, let's see how this plays out today, our frame of reference, and how it played out then.
Today, there are large paramilitary organizations, state and federal, that monitor and investigate every act of life. There are traffic police, there are riot cops and SWAT teams, there is an FBI, a Secret Service, a CIA. And there is a large standing military to backstop all of that. The government inspects, watches, monitors life, and often jostles against individuals while investigating crimes. Indeed, today there are INVESTIGATORS, who full time, professionally, track criminals and seek to gather information to arrest them.
Not one of those things, not even a large standing army, existed in 1787. There were no police, no secret service, no investigators, no intelligence operatives. Nothing and no one watched anybody. The state couldn't have afforded it if it wanted to, and it didn't want to. There were sherriffs, elected officials, and they sometimes deputized people (meaning: bestowed on them certain powers, including the power to arrest under force). And that was the entirety of law enforcement, other than customs agents. The only sort of "police" as such were the folks who tried to enforce customs duties. And we should remember that in the era before the income tax or even very widespread property or sales taxes, the primary source of revenue for American government was import duties and tarriffs. So, customs officers were the ONE sort of established police force, and they were, effectively, the IRS of old. But there was no paper or anything else.
These are two different worlds.
Our world cannot imagine living without police forces.
But to the men of 1787, the New York City Police Force would BE a "standing army", which they loathed. Remember that there was no distinction in that age between the top-end military weapons (other than cumbersome cannon) and a regular gun that anybody might have. A "Standing Army" was a bunch of guys standing around with guns, paid for by the sovereign. TODAY, all of these different armed forces are professionalized and specialized, but back THEN, all of todays POLICE FORCES would have been considered "Standing Armies", and were utterly anathema to the whole mindset of the people.
So, that's the first anachronism that shows the passage of time. POLICE FORCES ARE STANDING ARMIES. If one wishes to return to the ORIGINAL MEANING of the Founders, one would have to abolish all federal, state and local law enforcement agencies. NOT JUST the Army, but also the NYPD and the LAPD and the state police, and let all law enforcement be done by an elected sherriff who deputizes his buddies. THAT was colonial law enforcement.
A police force IS an army, circa 1787.
In 2005, we cannot possible live without police forces. We are not rural and spread out. There are 300 millions of us. The population of any given large American city exceeds the population of the entire original 13 states. The population of New York City exceeds the population of the British Empire in 1776. The population of the United States exceeds the population of all of Europe in the Napoleonic wars. Small rural communities don't need police. Megalopoli do.
So, now that we've stripped away one huge difference between then and today, we need to hone in on the second: sovereign immunity.
Today, when the police arrest you, or when the government, from the postal agent to the tax collector, interferes with you, even if he is wrong you cannot sue him personally. You can sue the government. Sure, if the cop commits some sort of gross crime and is ruled, by the government, to have not been in the line of duty, then he can be sued. But if he was in the line of duty, he is protected by government immunity. Today, you can sue the government, but you CANNOT sue individual civil servants.
Note, then, that if today a prosecutor or policeman abuses his power, you can go after the state, but you cannot go after him.
Back then, the opposite was the case. The government was sovereign. The sovereign was immune from lawsuit. So, if a sherriff or customs agent burnt down your house negligently during a search, you had absolutely no recourse against the government that paid him. None. The government was immune to lawsuits, except insofar as the law suffered the government to be sued.
On the other hand, the individual officers of government were NOT "the government". They were individuals, who acted in their individual capacities, under a writ of authority from the government. Which meant that if the sherriff burnt down your house, you had no recourse against the government, but he had no special protection whatsoever, at all, as an agent of the government, against his acts. You sued HIM.
Today, you cannot sue the cop who stops you for slander if he says something nasty to you that someone overhears. He is protected by sovereign immunity. You can sue the city for some sort of rights violation, maybe, or pain and suffering, or slander, whatever.
Back then, the government was immune from suit for absolutely ANY act of its agents. But the agent was just a private citizen, as eligible for being sued as anybody else.
It is often said that the cops NEED to have sovereign immunity, because otherwise they would be hindered from zealously pursuing their duties because of fear of lawsuit. That is not mere speculation. That was the original condition of America. If some public official came into your house without a warrant, you sued him directly. If he lost, you took his personal property through the courts. Obviously that would have a VERY chilling effect on law enforcement.
1787 was a different world from today.
Of course, do any sort of "then and now" analysis, and you'll get branded as an advocate of a "living Constitution", which I understand is a terrible thing.
As one part of a securing the border plan, its fine.
It itself, it will look dumb to most people, I think.
Perhaps, but the Founding Fathers were not silent on the subject of immigration. Article 1, Section 8, Para 4 states: "Congress shall have the power...'To establish a uniform rule of Naturalization,..". The issue of who were able to become citizens was not left to being a free for all, as you imply.
Furthermore, under these powers Congress passed a number of immigration and naturalization laws, among those being:
A. The establishment of "Special Ports of Entry for Immigrants", notably Ellis Island from 1892-1924, its peak years until 1954. Even if an immigrant reached Ellis Island, they could, legally, be turned back to their country of origin.
B. The Johnson-Reed Act of 1924, also known as the Permanent National Origins Quota Act, began a quota system that lasted for 40 years.
C. A preference system was added in 1952 with the Immigration and Nationality Act, giving preference to people with skills needed in the United States, relatives of U.S. citizens, etc.(the relatives of German rocket scientists).
D. The Hart-Celler Act or the Immigration Reform Act of 1965 did away with the quota system, though it kept much of the preference system. (the breach in the dam that led to its breaking).
You are implying that the Founding Fathers were silent on immigration and the fact of its consideration proves otherwise. They were concerned who would become citizens and gave Congress the power to decide who could stay, who could become a citizen and who should, or could, be deported.
There is a boat leaving for France arriving at LaHavre. Au revoir. Bon voyage.
1892 is a long, long way from 1787.
Nevertheless, "Naturalization" was thought of in 1787 by the Founding Fathers. It was not ignored, or forgotten in the times, as you imply. Now, the 1965 Immigration Reform Act, passed by Congress under the powers of Article 1, Sec 8., is the "smocking gun" over the body of our present immigration problems. It was part of JFK's "New Frontier" and LBJ's "Great Society". Instead, it just trashed America.
I too have enjoyed the discussions.
The hard nut of what we're talking about here is the vagueness of language.
Looking back at 1787, what were the issues? The big problem was that the Confederation was falling apart, not discharging its debts, not able to get the British out of the Northwest nor the Spanish to open the Mississippi. The states were erecting tolls between themselves and vexing commerce. Massachussetts had just experienced a nasty rebellion (Shays).
There was a lot on the politicians' minds, and the new Constitution was aimed, especially, at fixing the instant wrongs. So, the war making and treaty making power: these were concentrated in the Federal government, and the states were stripped of these powers. Why? So that the US could make treaties (Britain wouldn't even bother to treat with the US in the late 1780s, because any particular state could simply derogate from the treaty), and that the US could take full possession of its territories, and get the Mississippi mouth open to navigation.
Likewise, the commerce power: this was concentrated in the federal government.
But what does "commerce" mean? It's not defined. It was an amorphous grant of amorphous power. Back then, it meant "The Federal government has the power to override anything that the states are doing that's messing with internal and external trade of goods", which is a pretty plenary power. It's still that way today, really. Of course, absolutely anything can be defined in economic terms, and legislated under the commerce power. That has been the trend of the 20th Century, but this was not a radical departure from the ideas of 1787. The trick is that when slavery emerged as THE issue between the states, nec plus ultra, in the 1800s, everything was washed through that prism, and "states' rights" meant: "The right to protect slavery forever", while federal rights meant the opposite.
Slavery was not the issue in 1787. Oh, it was there, and on people's minds too. It was a sectional interest of some importance, but it was not THE issue about which states' rights alarms were sounded by the anti-federalists.
When one reads the Constitution and really thinks about it, the grants of power are very broad and general, and the limits are not spelled out. That's always been a strength and a weakness of the document: a strength because the advocates of needful change can find the power there in the implications of the grants - a weakness because the opponents of any change can always claim that the Constitution is being violated, and therefore that the whole enterprise of change is politically ILLEGITIMATE.
There is no good solution at all to the conflict, and most people find themselves on opposite sides of it depending on the issue. As an example, on another thread of FR, someone is yelling his head off at me that the Second Amendment does NOT grant the states the power to regulate guns, that it is NOT a restriction on the Federal government, but is a restriction on ALL government in America. This is argued very passionately. I don't want to debate the merits or demerits of that position here (which is why I have not mentioned the poster by named nor cc'd him). My point is that conservatives can be very, very selective in their view of original intent. Most conservatives believe in a very broad, even plenary grant of a right in the 2nd Amendment, which even the states cannot pare back upon, but believe that the power to regulated commerce, granted in the First Article, is much more limited.
There is no textual basis at all on which to make this distinction. They simply do it because of their political beliefs.
That's what everybody does with the Constitution, and indeed, you practically have to, because the document is so short, and so vague on specifics, that absolutely every issue can be contested as being within, or outside of, its grip.
We started the discussion here talking about the Supreme Court. On the one hand, Article III says that Congress can limit jurisdiction. On the other, the Constitution says that it's the Supreme Law of the Land. Functionally, nothing can impose that rule on Congress other than the other branches of government.
And so it goes.
There are hundreds of volumes of Supreme Court jurisprudence that attempt to spell out what those words mean, and certainly some of the Founders expected that's what the Court would do. Others didn't care about that issue. Limiting the courts was not a big concern in 1787.
On any issue, the language is vague. Freedom of the press: Congress shall pass NO law abridging it. Ergo, laws against child pornography are unconstitutional, right? And if we want to outlaw child pornography, we have to AMEND THE CONSTITUTION, right?
Funny how that argument looks altogether less appealing when the thing that wants regulation is something we really hate.
For the record, I would say that, to regulate child pornography, a strict constructionist would have to say "Yes, you have to amend the constitution for CONGRESS to pass such a law, and if incorporation by the 14th Amendment inheres, then for the states too." An originalist would have to say "No! Nobody intended the Constitution to be an authorization for moral license." A "living textualist" would say that there were no photographs in 1789, so the Bill of Rights doesn't directly address pornography. BUT, states could and did regulate morals in 1789, and by extension, they can still do so today. And with incorporation via the 14th Amendment, the Federal Government can too.
Which answer is right?
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