Posted on 11/27/2009 1:57:59 PM PST by loveliberty2
The please explain to me just what the h*ll you think he is talking about in what I posted in 102?
Yes and it turned out to be a nullity until the middle of the 20th century. The Eisenhower administration I believe.
IIRC, Jefferson's version, not surprisingly, was more radical. Jefferson really should have been an antifederalist. Anyway, Madison's version is not inconsistent with his later thoughts in this regard--He didn't assert that one state could nullify a law. He asserted that states could each in their own legislature, or through a convention of delegates, assert that a law was unconstitutional. Then, presumably, the many states could agree in concert to nullify a law.
It's an absurdity, though. He's trying to make the case that the same soveriegn authority that enacted the Constitution was the authority empowered to decide on it. That authority being the PEOPLE, acting separately in their several states, but not acting as states, but as people, via the states. That alone is an incomprehensible absurdity, but that's what he asserted.
The problem with that is that a) The Constitution created a National Legislature, which became the body through which the states, and the people, acted in concert. Furthermore, the Constitution created an entirely separate Judiciary department that would decide all Constitutional questions. I'm not trying to beg the question there, it was a known fact, one that Justice Marshall articulated and affirmed very early on.
So what Madison was advocating was an extraconstitional process of state conventions, whereby some unspecified majority would be able to nullify a law. None of that is IN the Constitution, and in fact, the amendment process shows a prejudice against the people and the states, and in favor of the national government, by making amendments so very difficult (3/4th majority of states, 2/3ds of both houses etc).
In my view, he was making it up as he went along, and seems utterly dumbfounded at that. His reasonings are labored, and unsupported by the actual document--the Constitution. The Constitution is the supreme law of the land, all laws of the states notwithstanding.
Madison, in my view, was Dr Frankenstein, trying desparately to get the monster chained to the table after he'd predictably broken loose from the absurd chains that were supposed to contain him.
Among the many mistakes in our constitution, one of the big ones is the phrase "We the People." The states were no longer sovereign. The PEOPLE were. That meant the national government was acting directly on the people, through the states. It's what gives the "general welfare" clause such a dangerous meaning, compared to the same phrase in the old Articles. General welfare of the states makes perfect sense with the notion of limited national gubmint for collective purposes only.
I call them mistakes, but in truth, some of those who created the Constitution WANTED that outcome, wanted to neuter the states. They succeeded.
OK! I follow your line of thinking but DO NOT agree with it at all so I guess we are just going to have to agree to disagree and move on.
Hamilton appears to disagree. He thinks you simply have to rely on the checks inherent in the design of 3 separate departments.
Either way, what is clear, is that there is nothing IN THE CONSTITUTION that stipulates or delegates to anyone said power expressly.
The closest anything comes is the Judiciary, which is the final appeal on all cases in which the US is a party, or a citizen and a state etc, all the circumstances by which constitutional questions normally arise. And as we know, by the time of Marbury v Madison, it was explicitly expressed through the High Court.
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Again, it really doesn't matter what any of them opined. All that truly matters are the words in the document, and how they are construed by the powers created by the document. This passage, nonetheless, shows that judicial review was not an unknown concept--it was advocated by one of the prominent Federalists(nationalists) of the time. It was later affirmed by Justice Marshall. And it was properly understood by Brutus, who from the grave cries "I tried to warn you!"
I downloaded the book. It looks like a gem.
The abusers of our Constitution at this forum deny the Natural Law philosophy of our founders. They offer no substitute for that philosophy which was put into practice in our Constitution.
It was refreshing to hear the flame of our founding expressed in the voice of one of the sons of a great patriot, John Adams.
As I am confident you very well know, it is a powerful check available to Congress on the Court. That it is rarely used is a reflection of a passive Congress, not the well designed system of checks and balances of our Constitution. I would wager that not one in a hundred of our dumbed down populace know that Congress can blunt much of the judicial nonsense these past 70 years.
Congress has punted much of its legislative authority to the Court. It is a horrible situation described by Montesquieu and later Hamilton in which "there is no liberty, if the power of judging be not separated from the legislative and executive powers."
I can see problems with almost any solution. Personally I would prefer to only allow campaign contributions from within a district and only from individuals. Since the Supremes would probably make that unconstitutional I will be happy with term limits. We also have to find a way to control the congressional staffs. They are a real danger.
The sheer size! At the time of the founding, it was thought the original 13 states might be too large for a single republic. What then to make of our size now? I envision smaller republics, joined in a confederation. Northeast, Southest, Midwest, Mountain, and West. Possibly Texas on its own, and possibly Alaska on its own. Let those smaller subsets function as republics, and then let them all form a confederate league.
The problem of expanded government power, in my view, is unsolvable, short of re-writing the Constitution. The horses are out of the barn, and the precedents are so long-standing and well-established, nothing short of a complete overhaul will fix it. It would require a constitutional convention. I suppose lovers of liberty feel safer fighting over what's left of our liberty than they feel about starting fresh with the current populace/respresentation. Are we fit for self-government?
The changes would be extensive, and would unwrite much of our cultural heritage---We the People would be replaced with We the States. In fact, the entire preamble should be chucked. Necessary and proper has to go. EXPRESS powers has to be the way, no matter how many pages it adds to the document. "Regulate interstate commerce" would have to be changed to a more specific and restrictive language. Hell, the Bill of Rights needs to be re-written. The First amendment "respecting the establishment of religion" is too vague, leads to misconstruction. Same goes for the prefatory clause of the 2nd amendment about militias. Either the right to bear arms is absolute or it's not. Is it conditional on militia service? If not, scrap the first clause and make the statement plainer. The 4th amendment is equally vague--"unreasonable" searches. Judged by whom? "Cruel and unusual punishment." I mean, you go down the list, and much of what is in there is friggin worthless.
Judicial review--lately I am inbvestigating what would take its place. One idea is to put Constitutional questions to popular vote. I am sure some conservatives would complain about that--direct democracy. But if you don't believe that 9 unelected judges should decide, who then? State legislatures? Do you really think them superior to the people? I question to what extent a federal judiciary should have jurisdiction. The courts are a very dangerous and troublesome branch of power.
I wish I had more time to play around with it. The idea is to write a new Constitution, design a new system, taking all the many problems with this one and attempting to fix them.
By the way, I don't disagree with you in theory. My instincts run that way. I didn't like seeing NY-23 become a national race. It's a sign of what's wrong with our system. The House isn't truly a people's house if it's going to be 455 nationalized elections. Why meddle in some small communities business? But the House takes up so many issues, with such a broad scope of power, the meddlers feel justified, and perhaps they are.
And of course, the money men will find a way. You can outlaw it all you want, they'll get the money where it needs to go. In the mafia they call em "bagmen." In politics, they're called "bundlers." Politics is filthy nasty business. People need to remember that. But we're schizophrenic about government in the USA. I believe we revere our politicians and our system too much. It all needs a major comedown. They are thieves that we tolerate, not heros we revere. Or that's how it should be anyway.
“You can outlaw it all you want,”
Hmmmmm! I agree.
“The problem of expanded government power, in my view, is unsolvable, short of re-writing the Constitution.”
Welcome to the State of Soros.
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