Posted on 11/27/2009 1:57:59 PM PST by loveliberty2
The Constitution was devised with an ingenious and intricate built-in system of checks and balances to guard the people's liberty against combinations of government power. It structured the Executive, Legislative, and Judiciary separate and wholly independent as to function, but coordinated for proper operation, with safeguards to prevent usurpations of power. Only by balancing each against the other two could freedom be preserved, said John Adams.
Another writer of the day summarized clearly the reasons for such checks and balances:
"If the LEGISLATIVE and JUDICIAL powers are united, the MAKER of the law will also INTERPRET it (constitutionality).
Should the EXECUTIVE and LEGISLATIVE powers be united... the EXECUTIVE power would make itself absolu te, and the government end in tyranny.
Should the EXECUTIVE and JUDICIAL powers be united, the subject (citizen) would then have no permanent security of his person or property.
"INDEED, the dependence of any of these powers upon either of the others ... has so often been productive of such calamities... that the page of history seems to be one continued tale of human wretchedness." (Theophilus Parsons, ESSEX RESULTS)
What were some of these checks and balances believed so important to individual liberty? Several are listed below:
HOUSE (peoples representatives) is a check on SENATE - no statute becomes law without its approval.
SENATE is a check on HOUSE - no statute becomes law without its approval. (Prior to 17th Amendment, SENATE was appointed by State legislatures as a protection for states' rights - another check the Founders provided.)
EXECUTIVE (President) can restrain both HOUSE and SENATE by using Veto Power.
LEGISLATIVE (Congress - Senate & House) has a check on EXECUTIVE by being able to pass, with 2/3 majority, a bill over President's veto.
LEGISLATIVE has further check on EXECUTIVE through power of discrimination in appropriation of funds for operation of EXECUTIVE.
EXECUTIVE (President) must have approval of SENATE in filling important posts in EXECUTIVE BRANCH.
EXECUTIVE (President) must have approval of SENATE before treaties with foreign nations can be effective.
LEGISLATIVE (Congress) can conduct investigations of EXECUTIVE to see if funds are properly expended and laws enforced.
EXECUTIVE has further check on members of LEGISLATIVE (Congress) in using discretionary powers in decisions regarding establishment of military bases, building & improvement of navigable rivers, dams, interstate highways, etc., in districts of those members.
JUDICIARY is check on LEGISLATIVE through its authority to review all laws and determine their constitutionality.
LEGISLATIVE (Congress) has restraining power over JUDICIARY, with constitutional authority to restrict extent of its jurisdiction.
LEGISLATIVE has power to impeach members of JUDICIARY guilty of treason, high crimes, or misdemeanors.
EXECUTIVE (President) is check on JUDICIARY by having power to nominate new judges.
LEGISLATIVE (Senate) is check on EXECUTIVE and JUDICIARY having power to approve/disapprove nominations of judges.
LEGISLATIVE is check on JUDICIARY - having control of appropriations for operation of federal court system.
LEGISLATIVE (Peoples Representatives) is check on both EXECUTIVE and J U DICIARY through power to initiate amendments to Constitution subject to approval by 3/4 of the States.
LEGISLATIVE (Senate) has power to impeach EXECUTIVE (President) with concurrence of 2/3, of members.
The PEOPLE, through their State representatives, may restrain the power of the federal LEGISLATURE if 3/4 of the States do not ratify proposed Constitutional Amendments.
LEGISLATIVE, by Joint Resolution, can terminate certain powers granted to EXECUTIVE (President) (such as war powers) without his consent.
It is the PEOPLE who have final check on both LEGISLATIVE and EXECUTIVE when they vote on their Representatives every 2 years, their Senators every 6 years, and their President every 4 years. Through those selections, they also influence the potential makeup of the JUDICIARY.
It is up to each generation to see that the integrity of the Constitutional structure for a free society is maintained by carefully preserving the system of checks and balances essential to limited and balanced government. "To preserve them (is) as necessary as to institute them," said George Washington.
Footnote: Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part III: ISBN 0-937047-01-5, Reprinted 2008
I don't buy that. The Articles needed some new articles. And there were proposals that could have addressed the known deficiencies. The framers wanted a national government. That was their agenda. They used the need for revision of the Articles (really it just needed a few new articles) as a justification and opportunity to remake the entire system. They had all their ducks in a row by the time they got to Philly. But no, the union was not about the dissolve.
Would you be so kind as to point out the exact section of the Constitution that grants SCOTUS that power? I can't seem to find it in my copy.
Article 3, Sec 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party.
This was well-understood at the time. See Antifederalist Papers 78-84.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Please tell me what you think the emphasized part means. And BTW, there is nothing there that grants The Supreme Court sole and final authority to decide what is and isn't "strict adherence."
”The [federal] government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each [State as a] party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
James Madison, Report on the Virginia Resolutions, 1800
Such as?
Tom Woods gave a very fascinating speech about this, the Kentucky and Virginia resolutions.
Most of his stuff can be heard here:
http://mises.org/media.aspx?action=author&ID=424
I don't buy that.
You should.
"It is not too much to say that the period of five years following the peace of 1783 was the most critical moment in a the history of the American people. The dangers from which we were saved by the Constitution were even greater than the dangers from which we were saved in 1865." John Fiske, 19th century historian.
Please tell me what you think the emphasized part means. And BTW, there is nothing there that grants The Supreme Court sole and final authority to decide what is and isn't "strict adherence."
You're incorrect. The Supreme Court is the court of last resort in all cases involving the United States. Those are the cases where constitutional questions arise. Since the Constitution is the supreme law of the land, and since its judiciary is the last resort on all such cases, they decide. It's cut and dried, and was understood to be so at the time.
As for Madison and his Virginia Resolutions, they are a joke. Madison may be the original flip flopper. He was against a national bank, then for it. Against a standing army, then for it. Against nullification, then for it, then against it again. I think the Virginia Resolutions was just a lame attempt by Madison to clean up the mess he'd helped create.
There's nothing in the Constitution that says you must interpret it the way Madison did. And it's a good thing, because he was all over the map. The Constitution itself, and its plain wording, is what carries the day. The power to decide Constitutional meaning resides with the Supreme Court he helped create.
Winding down for the night, Bigun, but I enjoy chatting it up with you. Have a good one. I might be back soon, might not.
h
The usual ad hominem attack, a Huck specialty.
1. Repeal the 17th ammendment
2. Restore original congressional apportionment...designed by John Adams to be 1:30000. this would yield 7000 congresscritters...too many to come to agreement on anything but the most important of issue to the country.
Hummm? Wonder who wrote this then and had it adopted by the Kentucky legislature?
1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress...
Here then, is what the Constitution actually created, as described in Antifederalist 80:
The cases arising under the constitution must be different from those arising under the laws, or else the two clauses mean exactly the same thing. The cases arising under the constitution must include such, as bring into question its meaning, and will require an explanation of the nature and extent of the powers of the different departments under it. This article, therefore, vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or in equity.lst. They are authorised to determine all questions that may arise upon the meaning of the constitution in law. This article vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law. These rules give a certain degree of latitude of explanation. According to this mode of construction, the courts are to give such meaning to the constitution as comports best with the common, and generally received acceptation of the words in which it is expressed, regarding their ordinary and popular use, rather than their grammatical propriety. Where words are dubious, they will be explained by the context. The end of the clause will be attended to, and the words will be understood, as having a view to it; and the words will not be so understood as to bear no meaning or a very absurd one.
2nd. The judicial are not only to decide questions arising upon the meaning of the constitution in law, but also in equity. By this they are empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter. "From this method of interpreting laws (says Blackstone) by the reason of them, arises what we call equity"; which is thus defined by Grotius, "the correction of that, wherein the law, by reason of its universality, is deficient; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when the decrees of the law cannot be applied to particular cases, there should somewhere be a power vested of defining those circumstances, which had they been foreseen the legislator would have expressed. . . ." The same learned author observes, "That equity, thus depending essentially upon each individual case, there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law."
From these remarks, the authority and business of the courts of law, under this clause, may be understood.
They [the courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort. The legislature must be controlled by the constitution, and not the constitution by them. They have therefore no more right to set aside any judgment pronounced upon the construction of the constitution, than they have to take from the president, the chief command of the army and navy, and commit it to some other person. The reason is plain; the judicial and executive derive their authority from the same source, that the legislature do theirs; and therefore in all cases, where the constitution does not make the one responsible to, or controllable by the other, they are altogether independent of each other.
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favor of the general government, and will give such an explanation to the constitution, as will favor an extension of its jurisdiction, is very evident from a variety of considerations.
And there you have it. A perfect description of the judicial power created by the Constitution, and a very lucid prediction of its logical outcome.
Bzzzzzt. Wrong. The Supreme Judiciary is the common judge.
Another personal attack on one of our Founders.
You regularly take cheap shots at Madison, Hamilton, Jefferson. In your view, were all the men of the Declaration and Constitution equally useless?
Were there any you admire?
That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution
I guess he didn't pay attention to the essays of Brutus before the ratification. Jefferson seems amazed, and he and his compatriots completely unprepared for this inevitable development. And yet it was predicted.
Again I turn to Brutus, Antifederalist 32:
In the lst article, 8th section, it is declared, "that Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense, and general welfare of the United States." In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defense, and promote the general welfare, and in this clause the power is in express words given to Congress "to provide for the common defense, and general welfare." And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper. It is true the 9th section restrains their power with respect to certain subjects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood, as I shall hereafter show. It has been urged that the meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, etc., in order to provide for the common defense and general welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the words of it, and I submit to the public, whether the construction I have given it is not the most natural and easy...It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was exhausted they have been astonished with the refined improvements that have been made in modern times ' and especially in the English nation on the subject. If then the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into executions It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues 'Of a state gives the command of every thing in it. He that has the purse will have the sword, and they that have both, have everything; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.
Clearly then, events transpired in precisely the way Brutus warned. It isn't enough to INTEND that a Constitution delegate powers that are "few and defined." It must SUCCEED in its intended goal. There were ways to achieve that. I personally believe that the big government crowd, led by Hamilton, won the day. I believe they were well aware of the loopholes they had included in the document. They wasted little time applying them. Even Washington favored more government that I am happy with. Jefferson wasn't there, and got most of his info from Madison. Madison seems confused and surprised by what transpired, even though he was warned, and mocked the warners in his own essays, which have become monuments of error and misjudgement.
Absolutely. I think our founding fathers expected people to run for office after a long working life and not start running for office in high school and ending their career without ever doing anything else.
Several come to mind.
Bill Clinton
John Breaux
oh this will just take too long. Everyone has a list.
Bzzzzzt. Wrong. The Supreme Judiciary is the common judge.
To which I respond, NO it isn't or at least wasn't right up until 1859. Previous to that time the states had nullified a great many illegal acts by the federal government.
Bzzzzzt. Wrong. The Supreme Judiciary is the common judge.
To which I respond, NO it isn't or at least wasn't right up until 1859. Previous to that time the states had nullified a great many illegal acts by the federal government.
"The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently."
You ever heard of the Force Bill?
No, that's not true. Perhaps the Framers (ie the big government Federalists) tried to convince people that would be the case, but many OPPONENTS of the Constitution knew better. The antifederalists wanted shorter terms, and term limits (they called it rotation in office.)
In the old Articles of Confederation, Congressional delegates were appointed annually by the state legislatures, and could be recalled and replaced at any time. Far superior to the Constitution.
Some founding fathers, like Hamilton, for example, wanted lifetime appointments for the President, the Judiciary, and the Senate.
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