Skip to comments.NAPOLITANO: Shooting up the Constitution
Posted on 01/17/2013 8:06:18 PM PST by jazusamo
Feds have no legitimate role in regulating firearms
If you have listened to President Obama and Vice President Joseph R. Biden talk about guns in the past month, you have heard them express a decided commitment to use the powers of the federal government to maintain safety in the United States. You also have heard congressional voices from politicians in both parties condemning violence and promising to do something about it. This sounds very caring and inside the wheelhouse of what we hire and pay the federal government to do.
Yet it is clearly unconstitutional.
When the Founders created the American republic, they did so by inducing constitutional conventions in each of the original 13 states to ratify the new Constitution. The idea they presented, and the thesis accepted by those ratifying conventions, was that the states are sovereign; they derive their powers from the people who live there. The purpose of the Constitution was to create a federal government of limited powers powers that had been delegated to it by the states. The opening line of the Constitution contains a serious typographical error: We the People should read We the States. As President Ronald Reagan reminded us in his first inaugural address, the states created the federal government, and not the other way around.
Notwithstanding the Constitutions typo, the states delegated only 16 unique, discrete powers to the new federal government, and all of those powers concern nationhood. The Constitution authorizes the feds to regulate in areas of national defense, foreign affairs, keeping interstate commerce regular, establishing a post office, protecting patents and artistic creations, and keeping the nation free. The areas of health, safety, welfare and morality were not delegated to the feds and were retained by the states.
(Excerpt) Read more at washingtontimes.com ...
Judge Napolitano has inherited the Constitutional mantle of his colleague in freedom the late Judge Robert Bork.
I’m almost certain Bork didn’t believe in the individual right to keep and bear arms. “Slouching Toward Gomorrah” and others were good books, but Bork was hardly a champion of freedom. He was an inside the beltway type, corrupted as they always are by prolonged exposure to academia, the legal world, and Washington, in all of which respectable opinion, or putatively respectable opinion, is monopolized by lefties. So we could pretend like he’s a hero of our side for positioning just barely to the right, though there’s an entire ocean of conservative and libertarian jurisprudence and legal theory that to him might as well mot exist.
He did our side a great disservice by emphasizing original intent instead of original meaning, by ignoring things like the 2nd and 9th amendments, and by abiding the idiotic Footenote Four stadard for unconstitutionality. We have been crippled, intellectually, by the presumption of constitutionality, by the pretended equavalence of conservative and liberal “judicial activism.
Bork was a somewhat diminished statistic, is all. States being able to ban condom sales, flag burning, or public obscenity was more important to him than almost any freedom I can think of. Too bad Dems went after him so hard andwith such thin arguments, for it gave us a false hero.
“He was an inside the beltway type, corrupted as they always are by prolonged exposure to academia, the legal world, and Washington, in all of which respectable opinion, or putatively respectable opinion, is monopolized by lefties. So we could pretend like hes a hero of our side for positioning just barely to the right, though theres an entire ocean of conservative and libertarian jurisprudence and legal theory that to him might as well mot exist.”
I liked what you said. I would have changed only one word lefties to insiders (fourth line). Once they become “insiders” they and their ideology are malleable to the benefit and the behest of the elite and not necessarily the USA.
Coming from Napolitano, that is a surprising statement.
He's right. The original intent of the Constitution was that it was a treaty drawn up under the Law of Nature and Nations by Vattel, who repeated the words of a great many philosophers like Aquinas.
Taking all that into consideration, a more accurate beginning would have been:
The People, through their Representatives of the American States.
But the Founders shouldn't be faulted for it. I don't imagine they EVER thought the People would forget that they are inherently superior to government.
OT: I saw the Judge for the first time in a little while. He has lost a bit of weight. Does anyone know if he’s sick or has just been dieting?
Boy howdy, was I ever wrong! Judge Napolitano is a solid as a rock Constitutional Judge and an excellent public speaker.
The purpose of the Federal Convention was to frame a government sufficient to the objects of a free people. The Constitution is not a treaty or series of treaties, as the Articles of Confederation were. Vattel was one of several philosophers reference by the Framers; Locke and Montesquieu were the most notable as demonstrated by the government they proposed.
The elements of good government were already known to the Framers of 1787; no deep philosophical debate as to what constituted good government was necessary. States had over twenty years since the Stamp Act to think about the successes and failures of their various State constitutions. Convention delegates had plenty of practical experience and put them to paper, despite lingering deep suspicions and factions.
The People, through their Representatives of the American States.
Not accurate. The States held special elections for delegates to the ratifying conventions. To say representatives of the states is to mean the States in their corporate capacities, i.e. legislatures.
I don't imagine they EVER thought the People would forget that they are inherently superior to government.
Quite right, and certainly not to extent we have.
Judge Napolitano is one libertarian that I have great respect for
Yes, it is.
And in this case, he adds, the confederate states engage to each other only to exercise with common consent, certain parts of the sovereignty, especially those which relate to their mutual defense, against foreign enemies. But each of the confederates retains an entire liberty of exercising as it thinks proper, those parts of the sovereignty, which are not mentioned in the treaty of union, as parts that ought to be exercised in common. And of this nature is the American confederacy, in which each state has resigned the exercise of certain parts of the supreme civil power which they possessed before (except in common with the other states included in the confederacy) reserving to themselves all their former powers, which are not delegated to the United States by the common bond of union.
Of the Several Forms of Government, St. George Tucker, View of the Constitution of the United States  Section XII
"The obvious deductions, which may be, and indeed have been drawn, from considering the Constitution as a Compact between the States, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each State no longer than it suits its pleasure, or its consent continues;
Story on the Constitution, vol. I, Book 3, Sec. 321 [page 499]
A Constitutional View of the Late War Between the States1868
Vattel was one of several philosophers reference by the Framers; Locke and Montesquieu were the most notable as demonstrated by the government they proposed.
True, the Founders quoted them all, but only Vattel's work was viewed as worthy enough for public monies to be spent in order to purchase copies for use in government
Ordered, That the Secretary purchase Blackstone's Commentaries, and Vattel's Law of Nature and Nations, for the use of the Senate.
[sorry - Library of Congress disables links]
Not that the Founders weren't using Vattel before then-
I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly, that copy which I kept, (after depositing one in our own public library here, and sending the other to the college of Massachusetts Bay, as you directed has been continually in the hands of the members of our congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author. Your manuscript Idee sur le gouvernment et la royauté, is also well relished, and may, in time, have its effect. I thank you, likewise, for the other smaller pieces, which accompanied Vattel.
Benjamin Franklin To Charles-Guillaume-Frédéric Dumas, Philadelphia December 9, 1775.
Nor was any other singular work Such as Montique's Spirit of the Laws or Locke's Treatises of Government mentioned in the Constitution itself, while Vattel's Law of Nations IS mentioned in Article 1, Section 8, Clause 10
To say representatives of the states is to mean the States in their corporate capacities, i.e. legislatures.
Not always. The corporate, or positive law State is a State of the United States, but the American States are the unincorporated, Natural Law component of the State....the People.
Judge Napolitano needs to be on the Supreme Court.
Absolutely! I’m sure Judge Napolitano would hit it off well with Justice Scalia, Thomas and Alito.