Posted on 08/23/2011 7:07:30 PM PDT by stevelackner
If this totalitarian exercise in the destruction of the Constitution and freedom is allowed to stand in the Supreme Court the people of this country will have two choices.
To capitulate and become serfs forever, or refuse to obey the illegal mandates of a rogue government.
Obamacare is open treason. That’s why it’se defenders so specifically accuse conservative of exactly what they are doing, or refuse to even entertain any arguments against it - because it’s open treason. It is an outright rejection of the entirety of the Constitution, with the sole purpose of establishing the precedent necessary to enable future rejections of Constitutional limits for any issue, under any circumstances.
Obamacare is “it.” It is the ultimate attack everyone has been waiting for. And it isn’t actually Obamacare - it is Hillarycare, lock stock and barrel. They just slapped his name on it because he’s in the Whitehouse instead of her. Hell, he’s too stupid to even read it. What do you think it would be called if Hillary was in the Whitehouse - and don’t you think she’d claim it was the final victory of what she started in ‘94? Of course she would - and she’d be right That’s what it is.
Madison's statement is ridiculous. It certainly WAS anticipated. But of course those who DID anticipate it were opponents of the Constitution, for that very reason:
They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations...
...This power in the judicial, will enable them to mould the government, into almost any shape they please.
From the 11th essay of "Brutus" taken from The New-York Journal, January 31, 1788.
PS--I believe some "friends of the Constitution" knew full well this would happen--Hamilton, for one.
The real miracle is that for a century afterwards we were (mostly) blessed with individuals in the judiciary who had decency, integrity, and - most of all - restraint; and who did not take full advantage of the TYRANNY that they had granted themselves in Marbury.
Them days is looong gone.
A very thoughtful and well reasoned essay. I have found that taking a position opposite Chemerinsky usually arrives at the correct result.
See http://www.stevelackner.com/2011/08/anti-federalists-were-right-how.html for my discussion of precisely that point about the Anti-Federalists and Supreme Court.
Glad to see someone else is out in the wilderness trying to get the message across. You never hear talk of the anti-feds, because it doesn’t fit nicely into the talk radio rap. It’s always about the Federalist papers, even though most of what the Federalists wrote turned out to be dead wrong. “Few and defined” powers? Bwahahaaaa!
The results are in. The antifeds were right. The federalists were wrong. The flaw is structural, not operational, unless you assume government is made up of good, honest men. Article 3 is an abject failure and a constant threat--nay, usurper of liberty. It needs to be fixed. As far as I know, there aren't any think tanks (Cato, Heritage, et al) even devoting time to the question.
In fact, when the antifederalists first offered up what became the 10th amendment, it included the language "those powers not expressly delegated." It was voted down by the Federalists, because expressly delegated means no implied powers, which means no judicial invention.
That's how we ended up with the toothless, worthless, superfluous and totally meaningless 10th amendment we got instead.
FYI: You cannot purchase health insurance across state lines ...
"Comprehensive as the word "among" is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose, and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made had the intention [p195] been to extend the power to every description. The enumeration presupposes something not enumerated, and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the States generally, but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself."
Absolutely right. Which is why the individual States must reclaim the right of Nullification, as a necessary check to the General Government and a compliant federal judiciary.
“rampant conservative judicial activism... It is yet another case of judges, at the behest of conservatives, doing the very thing conservatives claim to abominate: making their own law and ignoring the judgments of branches of government elected democratically by the voters.”
The audacity of this quote was, to me, staggering. This person’s lack of knowledge concerning the Constitutional relationship between the Legislative and Judicial branch was as wide and deep as the Pacific Ocean.
And here I thought you had been reformed Huck. From the looks of it however, I see you STILL act like you’ve been bludgeoned to a bloody pulp with an idiot stick. You are either a simpleton or a troll and I can’t make up my mind which it is. Or maybe an admixture of the two. “Fixing” our Constitution in today’s environment is a pipe dream of utopian dreamers that hardly warrants a response but I can’t help myself every time I run across your nonsensical chatter.
There is no right of nullification.
I agree. But it doesn't change the facts.
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