Posted on 05/14/2015 7:39:12 PM PDT by Tolerance Sucks Rocks
Supreme Court Justice Antonin Scalia reaffirmed his commitment to defending the Constitution while speaking to the Federalist Society in his home state of New Jersey on Friday.
Scalia, the preeminent conservative firebrand of the court, told the audience it is the structure of the government under the Constitution and not the liberties guaranteed under the Bill of Rights that makes us free.
As reported by The Daily Signal: “Every tin horn dictator in the world today, every president for life, has a Bill of Rights,” said Scalia, author of the 2012 book Reading Law: The Interpretation of Legal Texts. “That’s not what makes us free; if it did, you would rather live in Zimbabwe. But you wouldn’t want to live in most countries in the world that have a Bill of Rights. What has made us free is our Constitution. Think of the word ‘constitution’; it means structure.”
Congress passed the first ten amendments to the Constitution, which became known as the Bill of Rights, during the opening months of its first session in 1789, largely following those proposed by the “Father of the Constitution,” James Madison. They were ratified by the states and became the law of the land in 1791.
Scalia argued that without the division of power created by the Constitution, the Bill of Rights, which guarantees freedom of speech and religion, the right to bear arms, protection against unlawful search and seizures, and trial by jury of one’s peers among other rights, would just be paper promises with no mechanism to enforce them.
“The genius of the American constitutional system is the dispersal of power,” he said. “Once power is centralized in one person, or one part [of government], a Bill of Rights is just words on paper.”
Scalia stands on firm ground with his observation. James Madison wrote in Federalist 51 that the best bulwark against government tyranny is structuring a system where “ambition must be made to counteract ambition.”
He observed: “In…the republic of America, the power surrendered by the people is first divided between two distinct governments [federal and state], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive, judicial]. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
Scalia noted that the most profound departure from the dispersal-of-power structure established under the Constitution was passage of the ratification of the 17th Amendment in 1913, which changed the method of the election of U.S. senators to the popular vote rather than by the state legislatures.
The Founders intended the House of Representatives to be the “people’s house” with elections every two years, while senators served for six year terms–their constituency being the state legislature. This ensured that senators would have no incentive to trample on the state government’s authority through federal action.
The Constitution created a federal government with certain enumerated powers, leaving all the remaining authority to the states and the people. Scalia and many other critics believe the federal government has usurped broad authority in powers left primarily to the states.
“What a difference that makes,” Scalia said. “When you have a bill that says states will not receive federal highway funds unless they raise the drinking age to 21, that bill would not pass. The states that had lower drinking ages would tell their senators, ‘You vote for that and you are out of there.’”
Repeal of the 17th Amendment is one of the proposals in radio talk show host Mark Levin’s bestselling book Liberty Amendments.
Regarding interpretation of the Constitution overall, Justice Scalia is an originalist. In other words, he believes that it is not up to courts to re-interpret the nation’s governing document, but follow what the Founders’ intended. If the Constitution or laws generally need revision, it is up to the legislative branch to do so. “When we read Shakespeare, we have a glossary. We don’t think the words have changed there, so why do we think they have changed in the Constitution?” the justice has told audiences in the past.
Justice Scalia is currently the longest serving member on the Supreme Court, having been appointed by Ronald Reagan in 1986. Anthony Kennedy is the only other Reagan appointee still serving on the high bench
In practical terms, however, outside of an Article V convention forcing them back, there is no way way that the senate would ever vote itself back under the control of the states.
They love being “free agents” of the federal government, who only need to skunk the voters in their state once each six years. Or, like in the case of John McCain, utterly destroy anyone who would dare run against him in the primary, with bottomless deep pockets from his wife and corporate cronies.
For this reason in past I have proposed a way around the problem that would address the federal and state balance, *in the judiciary branch*.
This idea is to create a Second Court of the United States, subordinate to the SCOTUS, but superior to the district courts. And it would *not* be a federal court, but a court of the individual states.
Not being a federal court, it would not determine the constitutionality of laws appealed from the district courts to the SCOTUS, but their jurisdiction. As a jurisdictional court.
Right now, federal judges all over the US *federalize* local court cases that really have nothing to do with the federal government. This is a grotesque increase in federal power at the expense of the states.
This 2nd Court could take the 8,000 or so cases appealed to the SCOTUS every year, a *huge* bottleneck, and strip out those cases that should be returned to the states as *not* federal cases. Not federal business.
If a simple majority of these 2nd court judges ruled that a case should be removed from the federal courts, it could still be appealed to the SCOTUS. But the SCOTUS would be *obligated* to cite the exact wording in the constitution, not interpretations, and not *stare decisis* (court precedent), to overturn their decision.
If a 2/3rds majority of these state judges decided that the case was a state matter, it could no longer be appealed to the SCOTUS.
The 2nd court would also have original jurisdiction on all lawsuits between the states and the federal government. Right now such suits must slowly pass through a gauntlet of federal courts, even though they can never definitively be settled short of the SCOTUS. But having the other states hear the case first, they could send a loud and strong message to the federal government and the POTUS about what they thought of their actions.
In effect, acting much like a permanent constitutional convention. More than willing to prune the size and power of the federal government as an ongoing process.
The actual composition of the court would be two judges from each state, on terms parallel to the terms of their two senators, but by law those judges would be appointed solely by secret ballot of their state legislators, with a simple majority to win. The legislators could not surrender this authority or the process of elections as their leaders would want them to do.
REPEAl the 17th AMENDMENT. It would change everything.
Not sure if he’s singing of of my sheet of music or I’m singing off of his but he is 100% right in either case!
The 17th amendment fundamentally altered the structure of the U.S. government in a very adverse way.
I agree.
They should also change the house so that each member represents abound 250K people. With today’s technology there is no reason for them to be limited by the size of the capital building. Or build a stadium sized structure for when they have to meet.
The House Rep.s should have to spend most of their time living among the people they represent.
We would actually have a functional congress if we reformed the Senate and the House.
Originally, it was 30,000 per representative. The problem accurate representation of the populace. There is NO WAY ON EARTH that one person can accurately represent the opinions of 650,000 citizens.
Regarding the ill-conceived 17th Amendment, remember this. As mentioned in related threads, not only do corrupt senators work in cahoots with the corrupt House to pass unconstitutional bills, bills which not only steal state powers and state revenues associated with those powers, but the following also happens.
Corrupt senators confirm activist justices who declare the unconstitutional legislation passed by the Senate to be constitutional!
What a racket!
The 17th Amendment needs to dissapear, and a bunch of corrupt senators along with it.
One of the problems with the old way of selecting senators was that it turned state legislator elections into votes for senate electors. Remember the Lincoln-Douglas debates? Those weren't about swaying state legislators. They were about swaying voters who would elect legislators who would vote for them, and that issue dominated the election far beyond any state matter the legislators faced.
Then there was the problem of corruption, and several scandals showed it wasn't hard to bribe your way into a senate seat when you only needed to sway a few state legislators. And when that didn't happen, senators were usually simply cronies of whatever political machine was running that state.
For those and other reasons, most states had gone to some form of direct election of senators by the time the 17th was proposed, which is why it sailed through ratification very quickly.
You’re right it was originally 30K.
I only suggested 250K as a discussion, don’t know what the best number is. But I do know that its too many now.
Pay them a modest salary w/a max of 2-3 staff members. If caught selling their vote, Treason.
That is an attribute, not a problem. Our state legislators should be aware of national issues. When held once again to higher standards, we'll get better legislators.
The way to deal with corruption then as now and in any age is through legislation to punish corruption. It is no reason to destroy the liberty saving feature of federalism.
The 16th and 17th amendments sailed through because beginning in the late 19th century, the evil of progressivism had infected our body politic. Progs love democracy, because demagogues are powerless without it. It is as easy a sell now as it was then. Progs are moving now at full speed to nationalize presidential elections.
Reps were supposed to be as familiar to their constituents as the guy down the street, the prominent businessman in the local community with whom everyone was at least acquainted.
What we have now certainly isn't representation.
Since the first purpose of an elected politician is reelection, our reps and senators happily punt their enhanced and formerly state powers to the executive branch. This relieves them of responsibility and casting votes that could cost them their next election.
The 17A is thus responsible for the folding of all power into the executive branch and into the hands of one man. It is amazing nearly a hundred years had to pass before the appearance of an Obama.
Being a true radical who kept his promise to fundamentally transform America, I cannot envision Obama risking his nefarious accomplishments on the election of a non-radical in 2016. Obama knows there is an undercurrent of unrest and resistance; he is willing to do what it takes to secure his tyranny.
Article V while we can.
Love the gnome spread sheet
We are a republic, not a democracy. We do get to vote for state legislators who appoint senators. This is a States rights issue.
If I had my way there would still be property requirements to vote (not necessarily real estate). People who could and would vote themselves welfare checks and Obamaphones should not be allowed to vote.
Bookmark.
I used to think that about the 17th...
Not sure anymore as the cure could be worse than the disease...
As for the 16th being repealed, that will happen as soon as the sun explodes and then maybe not knowing the Congress...
Thanks!
People who could and would vote themselves welfare checks and Obamaphones should not be allowed to vote.
There we agree. Even a simple literacy test would cull a lot of idiots.
as it should be—as it is written—but my question is —is it so today? or have we allowed corrupt and wicked men and women subvert the system?
Thanks for the ping
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