Posted on 04/14/2005 6:40:53 PM PDT by kellynla
That isn't what Hamilton told us in Federalist 84:
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.* This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
*This is exactly what you are doing with your argument about the Tenth Amendment, sovereignty, and the People's power to secede.
I told you before, and I repeat, we aren't talking about the implied power of the White House housekeeper to order tea cozies with the proceeds of a congressional appropriation. We are talking about the highest questions of politics, and there is nothing implied, nothing interlined, nothing that you can invoke by necromantic skill that will allow you to infer such a power of the Congress. Powers like that are all delegated and listed in Article I. If you don't see it there, quit telling us it exists, because it doesn't.
And to get down to cases, you don't really mean that Congress has the power to forbid States to leave the Union, do you? You mean Abraham Lincoln.
Marshall was a card-carrying Federalist and never saw a federal project he didn't like. The easy way to show that would be to attempt to disprove my statement by producing a Marshall opinion in which he actually found unconstitutional some federal scheme cooked up by his own party involving contested powers.
Madison penned the same sentiment prior to tendering the [evenutual] Bill of Rights for debate. The federal Constitution is a DELEGATION [what can be delegated can be resumed] of certain enumerated powers respecting all members, not internal matters of each sate.
Marshall was a card-carrying Federalist and never saw a federal project he didn't like. The easy way to show that would be to attempt to disprove my statement by producing a Marshall opinion in which he actually found unconstitutional some federal scheme cooked up by his own party involving contested powers.
Lol! I won't even bother to try. Marshall had the tendency to write out of both sides of his mouth after he assumed position as Chief Justice.
And I really don't care what a justice, or the Supreme Court says about a case, the Constitution does not state that SCOTUS is the ultimate arbiter of such, Madison/Hamilton opine in the Federalust [sic] Papers about states being parties to the compact and empowered to decide such for themselves.
In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State....It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal.
Aleander Hamiliton, "The Judiciary Continued, and the Distribution of the Judicial Authority", Federalist No. 81
And this in No 82: 'The principles established in a former paper [No. 31] teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head.'
This must be the germ of the Nullification idea, which fell afoul of the Supremacy Clause -- which in turn means that Madison's statement above was wrong.
[You, quoting Hamilton in Federalist 81] "...It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. .....Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal."
And yet federal judges hale States into court every day of the week now, most recently Alabama over the Bible issue, to purge the forum of Christianity, while scrupling to disturb a decision of the Florida courts that the federal judiciary found amenable since only one death was involved, whereas the entire Supreme Court had, as your username notices, busied itself with the bench decrees of a partisan Florida supreme court only four years earlier. There seems to be an element of......discretion, or dare I say wilfulness, about it.
And this in No 82: 'The principles established in a former paper [No. 31] teach us that the States will retain all PRE-EXISTING authorities which may not be exclusively delegated to the federal head.'
Well, I wish I'd seen that line a long time ago, it's pretty much a conversation-ender on the subject of sovereignty and the right of secession.
I wonder if Marshall would have persisted in that line, if he had known he was creating a monster that would destroy his and Washington's (and Jefferson's, and Mason's, and Madison's) home state.
One. This is a trick question, right?
Sure I can, easily. As a continuation of Article IV.
And to get down to cases, you don't really mean that Congress has the power to forbid States to leave the Union, do you? You mean Abraham Lincoln.
No, Congress. The President doesn't have a say in the matter, any more than he had a say in creating states like Mississippi or Louisiana in the first place. The people of the United States have the say, through the vote of their members of Congress.
The Supreme Court disagrees with you.
The states have all the powers NOT DELEGATED to the federal government [please cite the express delegation of the federal government to prohibit secession], and the powers NOT PROHIBITED by the CONSTITUTION [not by congress, the President, or the Supreme Court - again cite where secession is prohibited].
Secession is not prohibited so long as it is done with the consent of a majority of the members of Congress.
I believe I answered that already. One. Weren't you paying attention?
On invisible ink?
We're just going to have to disagree like hell about that. It ain't there. What you need to make Lincoln good, just is not there in the Constitution, and neither he nor you, with the treasuries of the world to support you and Blackstone and Oliver Wendell Holmes as your legal guides, could ever find any proper basis in a thousand years of parsing.
You say yes, I say no. But every time you call dozens on the Confederates in your benighted effort to justify Lincoln and inculpate the South for her own destruction, I will reply and call you dead wrong. Particularly since I know why you're doing it, and how desperately your side needs to think that they did right, and didn't commit a monstrous four-year political pogrom against fellow Americans over power and money.
Not true. You're just making it up as you go along.
Secession, ratification, and all other sovereign matters inuring to the People's power are flatly ultra vires the Congress of the United States and the United States court system.
Courtesy ping.
And that is flatly BS.
Hamilton might have have a nationalist and advocated an absolute monarchy (then we'd have our own royalty), but he did tell the truth about the proposed system of govenment to induce New York et al to ratify. He was writing to calm the fears of his OWN state, which specifically reserved the right to resume delegated powers - without having to petition the federal government as the yapping little dogs would have us to believe.
The you can EASILY Post the specifice TEXT that deleagtes authority to tthe federal congress to PREVENT a state from leaving the voluntary union that it UNILATERALLY voluntarily joined.
Other than the original 13, states didn't UNILATERALLY voluntarily join anything. They were admitted, and only with the consent of the rest of the states through a majority vote in both houses of Congress. Article IV specifically lays that out. If it takes approval of the other states to join then by implication is should take the approval of the other states to leave.
The Supreme Court has repeatdly held that each new state is admitted on an 'equal footing' with the original states, who DI ratify unilaterally. An even today, Congress votes to allow a state to join the union, but cannot vote for ratification - the people of the state decide for themselves - UNILATERALLY. Nothing implicit about it.
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