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To: ForGod'sSake

Most of the really significant fighters establishing the US had no illusions about the need to subordinate the states to a central government (they often called it the “General Government”. All the major Founders: Hamilton, Washington and Madison had no illusions about this. Madison even considered abolishing state governments all together during the period coming up to the Convention. Ironically enough it was Hamilton who convinced him that they could still serve important functions.

Marshall’s legal thinking when constitutional questions were brought before him started with the Federalist papers and his thinking rarely, if ever, deviated from them. Since Hamilton wrote two thirds of them we can safely conclude that Marshall was a Hamiltonian and he would not dispute that label. And judicial review started yrs before Marshall was on the Court with Hamilton defending the constitutionality of the Carriage Tax Act in 1792 so that wasn’t a Marshallian inovation. The biography John Marshall, Definer of a Nation, by J. Smith is an outstanding work of biography and legal explication. Reading decisions by Marshall shows a powerful logician and scholar of the law. Jefferson said that in argument with Marshall (his cousin btw) one could never concede one point or you were finished.

States conceded most of the important aspects of true sovereignty to the new Union and the Federalist discusses the consequences of not having a supreme head in a Union/federation/confederation with the examples from history of the Netherlands, ancient Greek leagues and others. The conclusion was that these inevitably dissolved and they wanted to prevent that. Hence, the constitution (or Foundation of Law) had to overrule any contrary law within this Union. And decisions about what laws were constitent with it could not be made politically (via public opinion) but via a Judiciary put outside politics by lifetime appointments and removal only through impeachment and conviction. There has never been a conviction and only one impeachment, Justice Chase in 1804.

My understanding of the 10th amendment is that it acknowledges that a state has full rights over laws which only affect citizens of that state. This generally is limited to police regulations, health regulations etc. And I believe most of the supporters of that amendment intended it to allow states full freedom over slaves. But they can never enact laws which run counter to federal law and the Supremacy clause.


76 posted on 02/22/2009 9:54:46 PM PST by arrogantsob
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To: arrogantsob
I've asked you several times for you thoughts re remedies the states and the people have against a runaway federal government. From what I gather you don't believe it's possible the federal government can do anything UNconstitutional. I have come to the conclusion you are an insufferable statist.
78 posted on 02/23/2009 10:48:56 AM PST by ForGod'sSake (We must, indeed, all hang together or, most assuredly, we shall all hang separately. - B.F.)
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