Posted on 10/20/2014 11:48:04 AM PDT by Publius
That’s my point. Since 1913 America has had Presidents of such bad character it would rival the last days of Rome. Even before that there was Adams, who passed the sedition acts.
I find that excuse “The Bible said it was alright” weak. Christ didn’t tell us anything about voting, or dealing with tyrants either, but I dispute that the Bible advocated the evil tradition of slavery. Just because there isn’t a verse that says that slavery is evil, doesn’t mean it isn’t evil. We need to figure that out for ourselves, and unfortunately Southerners just couldn’t grasp it.
Central government’s usurpation of power began early but really got underway with the corrupt and amoral Jackson administration.
Abraham Lincoln drove the final nails into the coffin of our Constitutional Republic.
Things have only gone down hill since then.
As Publius says, this is the crux of the issue... {I am a bit sick and have just scanned the article... will read it in detail later} Whatever one may think about the issue of slavery [I think it is abominable] it is difficult for people to realize that one perhaps unintended side effect to the War Between the States was the weakening of state's rights... because of the heavy hand of Lincoln and his decision that the Union was the most important principle to be enforced. He even deported an Ohio congressman to Canada that loudly opposed him!
Washington carpetbaggers further emaciated state's rights with the Fourth Branch of government: the federal bureaucracies. By sneaking through the income tax amendment Washington began to drain wealth from the local communities, constructed the 'Agencies' and told the state's they could have their money back if they did certain things. It would appear on the surface that it is a violation of the Constitution - but it is not because the states can say 'No thanks' and not get any of their money back.
The whole system has been corrupted.
(Publius:) The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.
We see with this ebola outrage the incompetence of the feds to deal with problems - yet the public still thinks that the answer to all their problems rests with the government... get an education, buy a house, get a raise, pay your rent, feed your children, get a job - get a promotion, etc., etc., etc. ... on and on! I do not know if we can break this dependence cum loss of freedom. It requires a mammoth educational outbreak - and the opposition holds all the popular media to carry on the fight for enslavement.
You have no brief at all against slavery at any other time or place than in America, perpetrated by whites.Doesn’t that bother you at least a little???
Either you have to condemn everyone in all of history, or you have to recognize that the people who lived prior to our time had different cultural norms and either did the best they understood at the time, or else did not. And of course none of them, Christ excepted, did the best at all times. The reason that Jefferson and Washington didn’t free all their slaves traces back to their own upbringing, what their fathers did before them, and what everyone around them took for granted.
Everyone in America, essentially, was prejudiced against blacks before Reconstruction. And after, because under the best of circumstances those attitudes don’t change on a dime. When I say, “everyone,” I certainly and specifically include Abraham Lincoln. Everyone.
Everyone was inculcated with that stuff, one way or the other - and if they weren’t directly told it, they absorbed it because the blacks themselves had such different culture from whites. And race consciousness is still with us, and if Jesse Jackson et. al. have anything to say about it, race consciousness will never go away. It is their rice bowl.
Baker had served as a senator from Illinois, which is how Lincoln came to know him. He was a welcome guest at the Lincoln home in Springfield where he was called “Uncle Ned” by the children. Baker went to Oregon when it became a state in order to make his fortune, but he found himself chosen by the legislature as Oregon’s senator because of his prior experience.
When the Civil War broke out, Baker left the Senate to accept a commission as a Brigadier General in the Union Army. Just before leaving to go to war, Baker came to dinner with the Lincoln family at the White House where he gave the President the kind of dressing down that only a close friend could give.
Baker argued that the states were the source of the whole problem, and the first thing that should be done at the war’s conclusion should be to abolish the states entirely and reorganize the country into military districts for complete governance by the federal entity. Lincoln laughed his suggestion off and privately classified Baker with the “Jacobins”, his name for the men who would later become known as the Radical Republicans.
Baker died in Virginia at the Battle of Balls Bluff in a botched retreat. Had he lived, he would have joined the most extreme of the Radicals in Congress after the war. We dodged a bullet.
Imagine if GW had followed suit! Over half of the Congress would have been deported! right on! right on! right on!
. . . And it took the South until the 1960s to get with the modern world - makes them little better than the barbarians we are fighting in Iraq.
100% of what I am saying is that if you were born in Virginia in 1840 you would have enthusiastically fought for the Confederacy, and wouldn’t have appreciated Yankees telling you that you were immoral for doing so. Yes, IMHO upbringing/culture has that much effect.And it’s not likely that you are a lot more committed to Jesus than Stonewall Jackson was, for example. If you read his biography, you will understand what I am saying. He started a Sunday School for slaves, which was controversial in Virginia. And he owned one slave, reluctantly, because the slave himself importuned him to buy him from a hard master.
As I said, there is ample evidence that Abraham Lincoln was prejudiced against blacks. Everyone was.
Look, my first interest in being a Republican was on account of the story of Lincoln. But in school, you learn things in other ways than class. And the blacks I encountered there taught me to be wary of them. Same thing, it’s how they were raised. And that doesn’t change on a dime.
Read yourself some Thomas Sowell.
Black Rednecks and White Liberals - Thomas Sowell
You are not wrong. The Federalists were for a more powerful central government, but they went to great pains to limit its power. What we have today would have terrified them, and quite rightly. The federal government DOES have a role (like securing the border, for example), and needs to be effective in that role. There are things at which the fed is more efficient and effective, and those things are few.
Hope you find it of some value and I welcome you comments. I've got stuff on my plate that may prevent immediate response but I'll do my best.
First of all, I want to congratulate you on a thorough and extensive treatment of this subject. If you included references and footnotes, this could be a Treaties or a Law Review article. And with a little tweaking, the title could be changed to, “A Case for State Nullification” (which I favor and believe can be a valid response by a state that in a good-faith finding, deems a federal act unconstitutional).
The subject of use and misuse of words to either clarify or confuse is as relevant today as it ever was. IMO, the misuse of words is a tool in the Leftist toolbox. “Liberals” are about less liberty and more government. “Feminism” is the opposite of femininity. And here, you expose the duplicity and a certain confusion in the use of the word “federalism.”
So understanding the meaning and concepts behind words and ideas are important. But my interest is more in truth behind ideas and values than in the use of certain tradition words. When a word or term has been corrupted through misuse or the use of the term itself has become an issue, I try to do a work-around by using other words that plainly describe the same thing. I am more interested in values and truths than in maintaining the traditional use of certain terms.
“Federalism” in its original meaning seems hopelessly lost in confusion, especially because our central government is formally called the Federal Government, so today, the average Joe might think “federalism” means more federal government. So I try to describe our form of government as a decentralized Constitutional Republic and the Constitution itself defines and delegates the limited powers of the federal government, all other power and right presumed to the states and people respectively.
Having said all of that, here are some of my comments and responses to your text.
Hamilton…appropriated the name “Federalist” from the true Federalists, the States’ Men, and put the true Federalists in the position of calling themselves “anti-Federalists”… To make it sufficiently confusing, Hamilton’s gambit created a Federalist faction under his control that was truly Nationalist, and a Republican faction under Thomas Jefferson that was truly Federalist.
Maybe one of the first modern records of a Leftist (proponent of big government) twisting language to further his ends. I call it Satanic, really, because Satan is the author of confusion.
To a Federalist, the Tenth Amendment came later, modifies the Supremacy Clause, and is superior to it.
Not sure I follow this. There seems to be some kind of conventional wisdom that the Supremacy Clause supports any law Congress passes as "the Law of the Land". This is actually the “positive law” theory at work: any law Congress passes is valid. But that is not how the Supremacy Clause reads. It says that to be the Law of the Land, treaties and the laws of Congress must be “IN PURSUANCE” of the Constitution. The Constitution IS the Law of the Land and is, therefore, the rule of law in the U.S. Any law Congress passes must be consistent with the Constitution to be the Law of the Land. Any law that is unconstitutional is not the Law of the Land and is not valid law in the U.S. Otherwise you have the “positive law” rule of man running the show and that is tyranny. We know the Founders were dead-set against tyranny and a basic intent of the Constitution was to establish the rule of law as the bulwark against tyranny. The text of the Supremacy Clause itself and the Tenth Amendment confirms that purpose.
[Hamilton] Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Implied Power
[Me] Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Laws Necessary to carry out Enumerated Power
What is astonishing is that Madison now abandoned his Whole People argument from the Federalist Papers and the Nationalist theology, went over the wall and joined Jefferson in his argument born of the Federalist theology.
IMO, Madison was never a “Hamiltonian nationalist.” Madison (and others) knew the need for a central government for the protection of the colonies. Without a solid central government, they legitimately felt vulnerable to invasion from larger, stronger foreign powers. What distinguished Madison is he understood the presumption of the Constitution as expressed in the Declaration of Independence, that man is born with God-given rights which he confirmed in the Tenth Amendment that certain of those rights are DELEGATED by the states and the people to the central government via the Constitution. Thus Madison wrote the first ten amendments, not as the popularly called “Bill of Rights” (the rights are already there – totalitarian regimes like the USSR invoke “Bills of Rights” which they can just as easily revoke) but to appease the Anti-Federalists who (justifiably) feared a run-away central government that would not abide by these Constitutional presumptions of rights.
[Under Jackson] as a Democrat and an avatar of Federalist theology…the federal government grew on Jackson’s watch because he needed federal patronage jobs for Democratic Party faithful.
Suggests personal political welfare over America’s welfare.
Calhoun then stated his Theory of Concurrent Majorities:
The will of the absolute majority, as exemplified by Congress, can be vetoed by concurrent majorities of the states.
The practical effect of this went beyond simple nullification. What Calhoun was suggesting was:
If two-thirds of the states nullify a federal law, that law is repealed.
ONLY IF states find congressional law unconstitutional. Otherwise, nullification violates the Supremacy Clause. If a federal law is in “Pursuance” of the Constitution, then it is the Law of Land.
But now [Jackson] abjured his Federalist position in favor of a Nationalist position. Historians differ on why. Jackson responded to the South Carolina threat of secession by stating two simple equations:
Nullification = Treason
Secession = Treason
Nullification does not = Treason if federal law is unconstitutional.
Secession does not = Treason if federal acts continue to unconstitutionally abridge and interfere with states’ rights.
Unconstitutional Federal Law/Acts = Treason.
It is important to note that back in the early 1800’s, states were fiscally independent and not in reliance of federal funds.
http://people.duke.edu/~ew41/Research_files/cps.03.pdf (page 478).
Today, however, states are slavishly dependent on federal funds.
South Carolina declared its nullification of the tariff, Jackson asked Congress for permission to send the Army into South Carolina, and he got it. The crisis ended with Henry Clay writing a smaller tariff, but the Jackson Precedent had been set:
States may neither nullify nor secede.
Although the reason for the tariff was alleged to be mischievous, South Carolina’s nullification lacked constitutional grounds. The nullification was, therefore, invalid. The Jackson Precedent completely misses the point which is whether nullification or secession is based on an unconstitutional act by the federal government. Since the Jackson Precedent is also without constructional grounds, it is flawed and invalid.
Madison had started as a progenitor of Nationalist theology, repudiated his earlier views to go over the hill with Jefferson as a proponent of Federalist theology, and then, after his experience as President, was safely back in the Nationalist camp, where he stayed.
As we’ve seen, “theologies” and terms move around all the time. Going from “federalism” to “nationalism” could be as much a function of the changes in the meaning and “theology” of these terms as anything. The important thing to look at what Madison’s constitutional-based reasons were for his alleged “changes.” If Madison’s reasons were consistent, then his position represented no real fundamental change.
In 1857 in Dred Scott v. Sandford, Chief Justice Roger Taney thought that a comprehensive decision upholding the Fugitive Slave Law would solve the slavery issue once and for all, but he only made it worse. His opinion went farther than the case warranted and stated that Scott should never have been heard in federal court because he was chattel, not a citizen. Taney also took Calhoun’s position that the territories were the common property of the states, and Congress could not ban slavery in them.
At the time, the Constitution did not delegate the issue of slavery to the federal government. Slavery, like abortion and marriage, was a states issue, not a federal issue.
[Lincoln] understood that if the Union were to be dissolved, a constitutional amendment would be the proper instrument.
Not sure about Lincoln’s understanding here. Constitutional authorization is required for valid federal action. Not so with state action as confirmed by the Ninth and Tenth Amendments.
State secession doesn’t “dissolve” the union. The union remains less the seceded state(s).
The South had decided to forgo litigation in a court of law for a contest in the court of arms. Now the North’s back was up, and the time for negotiation had passed. Lincoln’s reaction was extreme:
All of his foregoing acts listed were unconstitutional.
From his perspective, the secession of the Southern states had never taken place. Unilateral secession was unconstitutional, legally impermissible and thus impossible. What had happened was not the dissolution of the Union as ratified by the states but an insurrection, and he used all legal means to suppress it.
Yet if it could be shown that the federal government had acted to interfere with slavery, the southern states had a plausible constitutionally-based case for nullification/secession because the federal government had no constitutional authorization to interfere with slavery.
According to Lincoln, states could not leave the Union without the permission of the other parties to the contract.
According to Lincoln, but is his reasoning is constitutionally based? If not, then it’s just one man’s opinion and back to the tyranny of the rule of man.
In 1869, the Supreme Court settled the basic issues of the Civil War in Texas v. White. In that decision it decided that secession was unconstitutional and the Union was both permanent and indissoluble.
Nothing is “settled" when the Supreme Court makes a decision not based on the best understanding of the original understanding and text of the Constitution.
From http://www.americanthinker.com/2013/01/on_secssion.html : “Texas v. White, even if given the utmost respect, and considered binding precedent, does not stand for the proposition that no state may ever break its bonds with the Federal Government of the United States. At the same time, if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.”
Warren told his law clerks that he was less concerned with what the Constitution said than what was right or wrong.
The very definition of “judicial activism”: replacing the rule of law of the original intent and understanding of the text of the Constitution with a Justice’s own personal morality. Judicial activism goes hand-in-hand with “positive law”, which says a law is valid because it is a law, regardless of the Constitution. Both judicial activism and positive law are tyranny.
Thus,
The democratic socialist paradigm is failing, and no one is quite sure what will replace it. But it will be either Federalism or Fascism.
I would say the distinction and choice is between the Constitutional rule of law (which includes the decentralized power of federalism) or the Fascist rule of man.
I finally managed to find time to read this.
Thank you, very informative.
I was hoping there would be something you’d be interested in discussing from my comments on your interesting essay.
Give me some more time.
Sure, the more time the better. This stuff is not like today’s instant and shallow TV-dinner soundbites. The more time and thoughtfulness the better.
The terms “Left” and “Right” came out of the French Revolution, and it’s dangerous to pigeonhole the Framers using those terms in their modern sense. In the politics of the era immediately following the Revolution, Hamilton, Washington and Adams would have been considered conservatives. Hamilton didn’t want Big Government because that would have required a tax burden that would have been bad for business. He wanted vigorous and effective government at the federal level, but he wanted it small. If you want to declare Hamilton a “crony capitalist”, that would be closer to the mark.
It says that to be the Law of the Land, treaties and the laws of Congress must be “IN PURSUANCE” of the Constitution.
Ah, but who arbitrates that issue and decides what is or is not constitutional? John Marshall, in Marbury v Madison, gave the Supreme Court the right to make that call. About a decade ago, there was an article in National Review that went into detail on Marshall’s opinion. It said that all branches of government have the right to determine constitutionality, not just the Court, and Marshall even opened the door a crack to the states having the authority to make that decision. But it was the Warren Court in 1958 that arrogated to the Supreme Court the exclusive authority to determine constitutionality. We may believe, as our own opinion, that something is or is not constitutional, but the Supreme Court’s opinion has the force of law, and the federal government will enforce that opinion even if it means bloodshed. Take a look at what Eisenhower did in 1957 at Little Rock to see what I mean.
Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Laws Necessary to carry out Enumerated Power
That’s a good strict constructionist reading of the equation, but the loose constructionists have carried the day since 1790. We have centuries of case law and precedent upholding loose construction. This is unfortunate.
Suggests personal political welfare over America’s welfare.
I would suggest reading States’ Rights and the Union by Forrest McDonald and The Life of Andrew Jackson by Robert Remini. With Jackson, all politics was personal, and if he perceived you as an enemy, you were fit for the hangman. The only way to get back in his good graces was to fight a duel with him, take a bullet and survive. After that, he would say, “He’s a fine fellow!” He didn’t understand the difference between business and personal.
Forrest McDonald goes into detail on the Peggy Eaton affair, the role of Mrs. Calhoun in ostracizing Peggy, Jackson’s identification of Peggy with his late wife Rachel, and Van Buren’s backroom deceit to convince Jackson that Calhoun was his enemy. Under ordinary circumstances, Jackson would have sided with South Carolina, but Van Buren convinced him that Calhoun, who was his ally, was actually his enemy. That meant that anything connected with Calhoun was bad, and that’s how Jackson reacted – personally.
Increasing the size of the federal government via patronage was simply the new populist politics of the era. It was a matter of harnessing petty corruption to the cause of the President and his party. Ironically, even Hamilton saw that as essentially harmless back in his era.
ONLY IF states find congressional law unconstitutional. Otherwise, nullification violates the Supremacy Clause. If a federal law is in “Pursuance” of the Constitution, then it is the Law of Land.
Go back to my paragraph about the Supreme Court and who gets to make that call. As of today, the states have no legal authority to declare something unconstitutional. They can protest and sue, but the final call is up to the Supreme Court.
Should it be that way? No. Earl Warren was wrong, in my opinion. This is why we need an Amendments Convention. The states should have a mechanism to nullify a federal law they believe is unconstitutional.
Nullification does not = Treason if federal law is unconstitutional.
Again, who makes that call? Our opinions as to constitutionality don’t have the force of law.
Secession does not = Treason if federal acts continue to unconstitutionally abridge and interfere with states’ rights.
According to the Civil War Precedent, unilateral secession is treason no matter what the circumstances. Madison made it clear that the Constitution was a compact, not a treaty, and thus was covered by contract law. You need the consent of the other parties to secede. Unfortunately, the Civil War Precedent has been written in stone and hallowed due to the deaths of 700,000 men on both sides.
If the federal government behaves in a tyrannous manner, the people have the right of revolution, something that goes back to Locke and Blackstone. Even Lincoln was willing to go along with that.
Unconstitutional Federal Law/Acts = Treason.
Not according to current jurisprudence. Accord to that, unconstitutional acts are simply unconstitutional acts, and the Supreme Court alone can make that call. Treason under the Constitution is carefully defined. Until the Court decides, the act is assumed to be constitutional. Should it be this way? No. But you’d need a constitutional amendment to change that.
Although the reason for the tariff was alleged to be mischievous, South Carolina’s nullification lacked constitutional grounds. The nullification was, therefore, invalid.
True.
The Jackson Precedent completely misses the point which is whether nullification or secession is based on an unconstitutional act by the federal government. Since the Jackson Precedent is also without constructional grounds, it is flawed and invalid.
Every administration from every party after Jackson upheld the Precedent and considered it valid. Lincoln fought a war based on its validity. The problem is that this has been written in stone over the centuries. Once that happens, you’d need to amend the Constitution to change it. Our opinions don’t have the force of law.
At the time, the Constitution did not delegate the issue of slavery to the federal government. Slavery, like abortion and marriage, was a states issue, not a federal issue.
True.
Not sure about Lincoln’s understanding here. Constitutional authorization is required for valid federal action. Not so with state action as confirmed by the Ninth and Tenth Amendments.
Lincoln accepted the idea that the Constitution was a contract, not a treaty. He did not see either the Ninth or Tenth Amendments as relevant to the situation. Madison had said that for even one state to secede, the Union would have to be dissolved, and this was and is still the accepted legal thinking. Thus, unilateral secession, no matter the reason, was forbidden. As Nationalists saw it, this was not among the rights the states possessed once they entered into the compact of the Constitution.
State secession doesn’t “dissolve” the union. The union remains less the seceded state(s).
Not according to Madison, and that’s how it has been interpreted ever since. Lincoln was willing to fight a war based on this principle. He won.
All of his foregoing acts listed were unconstitutional.
They were unconstitutional in the sense that only Congress had the authority to do them. Congress was not in session, so Lincoln acted on his own, citing the national emergency of a rebellion. Once Congress convened, it sprinkled holy water on Lincoln’s actions.
Yet if it could be shown that the federal government had acted to interfere with slavery, the southern states had a plausible constitutionally-based case for nullification/secession because the federal government had no constitutional authorization to interfere with slavery.
And everybody knew that except the abolitionists, who were not amenable to reason. But Lincoln and his party were only concerned with keeping slavery out of the territories. He said he had no interest in doing anything about slavery in the states where it was still in practice.
According to Lincoln, but is his reasoning is constitutionally based? If not, then it’s just one man’s opinion and back to the tyranny of the rule of man.
Again, the Constitution is assumed to be governed by contract law, not treaty law. Madison and every president after Jackson accepted that line of legal thinking.
Nothing is “settled" when the Supreme Court makes a decision not based on the best understanding of the original understanding and text of the Constitution.
That is not current jurisprudence. It is “settled” in the sense that you need to amend the Constitution to reverse it. Should it be this way? No, but that’s how it is.
...if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.
That is the opinion of the writer, but that is not the opinion of the federal government. Tyranny? Perhaps. Reversing legal precedent isn’t easy. Was the Chase Court’s decision in Texas illogical in parts? Certainly. But until it is reversed by the Court or the Constitution is amended, it stands.
Both judicial activism and positive law are tyranny.
Judicial activism is certainly tyranny, but it’s tyranny that is hard to reverse. The temptation for judicial tyranny is firmly seated on both sides. Many FReepers have no problem with judicial activism if it supports their pet issues. Power corrupts.
I would say the distinction and choice is between the Constitutional rule of law (which includes the decentralized power of federalism) or the Fascist rule of man.
This is one of the reasons I see an Amendments Convention as our last hope to restore what we had before the Civil War. The federal government needs to be returned to the constitutional prison that Madison built for it.
In Marbury v Madison, Justice Marshall and SCOTUS rightly claimed the constitutional power of judicial review of legislative acts. (What invalidated the ruling was that SCOTUS did not have original jurisdiction in the case and should have dismissed the case out of hand. Nevertheless, the ruling stands and is an accurate assessment of constitutional judicial power).
Marbury v. Madison, however, does not rule against the power of the states to declare a federal act unconstitutional. The ruling does not directly address this issue at all. However, the ruling, in correctly characterizing the Constitution, does give weight to the inherent power of the states to so rule against either unconstitutional federal legislation or rulings.
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?...[T]he theory of every such government must be that an act of the Legislature repugnant to the Constitution is void…From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Marbury v Madison, 5 U.S. (1 Cranch) at 176, 177, 179-80.
http://www.law.cornell.edu/supremecourt/text/5/137#writing-USSC_CR_0005_0137_ZO
Courts, including the Supreme Court, and Congress, are both subject to censure from unconstitutional decisions or acts. The issue you point out is who decides what's unconstitutional. I address that further below.
I think you and I are pretty close about the problem with the unconstitutionality and threat of our $4,000,000,000,000 socialist government in our country. I believe it MUST be cut by at least 80% (that equals $800 billion, still too big, but it’s a start). And we both agree that a successful Convention of States could go far in remedying the problem. The only thing we may disagree on is how we will get to a free ship of state once again.
I find it difficult to see what kind of force would be necessary to make the government commit suicide (or at least the equivalent of self-inflicted great bodily harm). Government officials and bureaucrats have their own self interests, just like you and I. They have goals and dreams and families to feed. We who have our heads screwed on straight (relatively speaking), know that on a day-to-day basis, they’re not thinking about the wonderful, magnanimous stated goals of some socialist government program. All the government heads and workers know is that it is their means of a livelihood, and greater and faster growth means bigger paychecks, better colleges for their kids, bigger cars, bigger houses.
If somehow We the People through something like the Convention of States, can actually accomplish this, praise the Lord, I am grateful. But I see another alternative that may very well be more realistic – state nullification, which may very well lead to secession. If the federal government will not commit this self-inflicted disablement, and I find it hard to believe it will, then it’s back to the states. I would rather live in a small free state than in a large socialist state.
I think you would agree except for Supreme Court “precedent” over the last 100 years or so. But Supreme Court rulings from opinions that are not reasoned based on the Constitution, especially those that inexplicably overturn precedent from earlier Constitutional-based decisions, must be called into question and, given the chance, overturned, or even nullified if necessary. Again, even Marbury v. Madison says that the Court as well as Congress, is subject to the Constitution. Who might that body be to question constitutionality of an act by federal legislation and ratified by the Court, if not the states?
This is where we disagree, I think. I believe states have just as much Constitutional right as the feds to find a federal act unconstitutional. Again, going to the Supremacy Clause, only laws in pursuance of the Constitution are the Law of the Land. There is nothing in the Constitution disallowing states from declaring a federal act unconstitutional. And there is no Supreme Court ruling based on Constitutional reasoning that has found such prohibition in the Constitution. And the Tenth Amendment confirms that power that has not been explicitly and exclusively given to the feds or denied to the states, belong to the states and the people.
There is no constitutional prohibition or Court ruling based on constitutional reasoning that prohibits a state from nullifying an unconstitutional federal act. And to the degree the feds unconstitutionally interfere with the state, that state has a constitutional right to sever from the feds. IMO, the only thing required would be to base such action on a good-faith effort by the state legislature to find original constitutional intent and understanding from the text and relevant history as confirmed or ratified, if necessary, by the State Supreme Court.
I’m not sure I agree with the “contract versus treaty” distinction between the states and the feds via the Constitution. Somebody said the distinction is that in a contract both parties must agree to rescind the contract, whereas in a treaty, only one party is needed to void the treaty. But in a contract, if one party breaches, the other party may be discharged from performance. So, if the Constitutional agreement is a contract, if the feds fail to keep their part of the bargain – abiding by the Constitution – the states are not bound but are discharged from their part of the agreement.
Reading now.
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