Posted on 11/02/2004 11:20:24 AM PST by tpaine
2004
While observing the proceedings in a federal District Court, I was taken-back by the blatant arrogance of the judge masquerading as a constitutional officer. The case involved a civil dispute between two corporations. After setting a briefing schedule and reading the opposing attorneys the riot act concerning the conduct of his courtroom, the judge did something that illustrates the extent of the usurpation of power being perpetrated by the federal government. When one of attorneys told the judge he was unavailable for a motion hearing because he was scheduled to be in state court for a murder trial that same day, the judge came out of his chair and told the attorney to remind the state judge of the "supremacy clause" of the United States Constitution. He went on to state that since the federal government is supreme and above the States, the judge in murder case would have to change the date of the trial to accommodate the federal proceedings in his courtroom. If this federal judge had not been a constitutional renegade, he would have never asserted that the federal government is supreme and above the States.
The so-called "supremacy" clause is found at Article VI, Clause 1 and states in part:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or shall be made, under the Authority of the United States, shall be the supreme law of the land - any thing in the constitution or laws of any state to the contrary notwithstanding.
Nowhere in this provision does it state the federal government is supreme and above the States. It simply states that the Constitution and the laws made in pursuance thereof are supreme.
Alexander Hamilton addressed the extent of this clause in Federalist Essay No. 33:
[I]t is said that the laws of the Union are to be the supreme law of the land - It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution -[Bold not added]
In the New York Convention of 1788 considering ratification of the proposed constitution, Hamilton responded to the criticisms being leveled against this provision:
I maintain that the word supreme imports no more than this ¾ that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government. The states, as well as individuals, are bound by these laws: but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent powers, in which they are supreme.
In Hamilton's words we see the principles of limited government and enumerated powers. This clause does not expand federal power; it restricts federal power because that government only exists within the confines of its limited enumerated powers. When the federal government departs from the Constitution and enacts laws outside the scope of its delegated powers, those laws are not "supreme or binding" because the federal government does not exist outside of its limited enumerated powers.
In order for the federal government to be supreme and above the States, it would first have to have the constitutional power to modify or abolish the powers of the States. No such power was granted to the federal government by the Constitution. In fact, since the States created the federal government, they have the power to abolish or amend the powers of their federal government any time they wish.
The amendment process is found at Article V and provides two methods for proposing amendments. Two-thirds of the States [34] can request a Constitutional Convention or Congress [two-thirds of both Houses] can propose amendments. When a proposed amendment is adopted by Congress and submitted to the States for consideration, the States have the exclusive power to accept or reject the proposal and neither Congress nor a majority of the American people have the constitutional authority to over-ride their decision. In addition, if the States call a Constitutional Convention to amend the powers of the federal government, Congress is constitutionally powerless to stop them.
When a proposed amendment is under consideration by the States, it takes a vote of three-fourths of the States [38] to ratify any proposed change. Neither Congress nor a majority of the American people has a vote in this process. Likewise, neither the federal government nor the whole people can override a three-fourths vote of the States. The 38 smallest States, with a minority of the population, can bind the remaining 12 States with a majority of the population. This proves conclusively that federal government is not supreme and above the States. There is another way to read this clause. The Constitution is a compact or contract between the several States. If this clause is read in that context, it reads as follows: the contract between the several States, the Constitution, and all laws and treaties passed pursuant to the contract between the States shall be the supreme law of the land. It is the contract between the several States that is supreme, not the federal government. That government is simply the entity designated by the States to execute the limited functions entrusted to it by the terms of the contract.
Unfortunately, the federal government is using the illusion of supremacy to awe the States and the American people into undue obedience to its unconstitutional dictates. One example is the theft of land within the several States. The federal government cannot constitutionally acquire or exercise any legislative jurisdiction over land within one of the United States unless it complies with the consent requirement enumerated in Article I, Section 8, Clause 17. To get around this lack of authority, the federal government has used the supremacy clause to invoke condemnation or eminent domain power to take control of the land. It should be remembered that eminent domain is an attribute of sovereignty. The term "sovereignty" is interchangeable with the word "supremacy." Before the federal government could claim a general power of supremacy within the several States, it would first have to establish that the States surrendered their sovereignty to the federal government when they adopted the Constitution.
In Federalist essay No. 32, Alexander Hamilton reiterated the principle that the States, under the Constitution, would retain every pre-existing right [power] that was not exclusively delegated to the federal government: An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. [Emphasis not added]
Hamilton noted that the Constitution would establish a "partial union" between the several States. If the States were being consolidated into one nation they would not be delegating powers, they would be surrendering powers. That would include their sovereignty. In reality, the States did not surrender their sovereignty; they only delegated a portion of their sovereign powers to the federal government for the limited purposes enumerated in the Constitution. Thus, since the Constitution established a "partial union" between the several States, and the federal government was granted its powers from the States via the Constitution, the federal government cannot be supreme and above the States.
The failure of the States to control their federal government will have dire consequences if it is allowed to continue asserting supremacy over the States. In the New York Ratifying Convention referenced above, Hamilton warned of the consequences if the States ever lost their powers:
The states can never lose their powers till the whole people of America are robbed of their liberties. These must go together; they must support each other, or meet one common fate.
If the States and the American people do not awaken and assert their supremacy over the federal government, that government will ultimately turn Hamilton's warning into reality.
Some Federal Supreme Court decisions and several lessor court decisions have made it(the constitution) toilet paper.. not me..
Since no american citizen is a citizen of the United States they are citizens of various States.. The Constitution is a construct to facilitate a republic.. once that republic has been morphed into a democracy that republican constitution is null and void, even before that.. and is used as a ruse used to further the rise of the new democracy that will superceed the old republic.. as is happening NOW..
Failure to see that and act... further aids the espionage of the malafactors.. probably because of cowardice.. Americans seem to be too FAT and AFRAID to do anything about it.. FAT people don't throw revolutions.. neither do cowards.. ALL the brave ones are distracted these days in other places.
Getting all the brave ones out of the country for prolonged duties is a stroke of genious I would say.. Whos left to turn over the tables?.. YOU?... Of the two options lets hope you are merely FAT...
I really got a chuckle out of this one: How weird. -- You keep acting as if states have some life of their own. People created the 'state'. -- And our new Constitution, - one that controls both the new fed & the old state governments.
If you knew American history, you would know that the founding states were actually created by various kings of England, or royal charter companies from England. They simply evolved through various political permutations until we have our current Virginia, New York, Georgia, Rhode Island, etc.
And for your little contention about the Constitution controlling state governments, that is only true in the limited and explicit powers delegated to the federal government by the states. However, all other powers and rights are retained by the states, who can decide numerous things on their own.
You simply don't have the candle power necessary for this debate. Goodbye.
BINGO! - you are entirely correct Sir!
Only thing I would add is that there has been an amazing encroachment upon the rights of states in the last 60 years. More and more things have become Federal - issues which should properly be the province of the states.
Bye bye..
You: "Only thing I would add is that there has been an amazing encroachment upon the rights of states in the last 60 years. More and more things have become Federal - issues which should properly be the province of the states."
I think that the really devastating Federal encroachment begins not 60 years ago, but 147 years ago, with the disastrous Dred Scott decision by the Supreme Court, and has continued forward to this day by fits and starts, based primarily on 3 additional atrocious decisions by the Court. I have a good mind to start a new thread entitled "The Four Calamitous Decisions That Made Modern America" to lay out the case that it was the Supreme Court, in just four awful decisions, that is chiefly responsible for the Constitutional problems we face.
But I understand that every time someone posts a vanity, a kitten dies, so I will confine myself to remarking here.
You've picked 60 years ago as the point where things went south. That corresponds to 1944 and World War II. I think you really probably mean 70 years ago and the New Deal. But I am going to argue that the New Deal was not the disaster. Rather, the disaster was a Supreme Court decision made 30 years before that, in 1905, that set the country up for a fall and made the New Deal necessary.
First, though, let me list the Four Calamitous Cases:
(1) Dred Scott (1857)
(2) Plessy v. Ferguson (1896)
(3) Lochner (1905), and
(4) Roe v. Wade (1973).
What each of these cases has in common is that the Supreme Court, sua sponte, overrode the democratic will of the People, as expressed through either the Federal or state legislatures or through Constitutional Amendments, and forced a change in the political process itself. By ruling democratically important issues off limits, the Court in all four cases put the lid on a pressure cooker which, when it exploded, did grievous damage.
Let's start with Dred Scott. What did Dred Scott really do? By declaring an owner to have property rights in a slave which the separate states could not divest the owner of by their local laws, the decision effectively ruled the Missouri Compromise of 1830 unconstitutional, and brought on the Civil War as the inevitable result.
Without dwelling endlessly on history, recall that the Missouri Compromise determined that newly formed states in the Western Territories would be free or slave, depending on where they fell relative to a line corresponding to the southern boundary of what became Missouri, but that an exception was made for Missouri, allowing it to come is as as slave state.
Now, a careful political dance was maintained in Congress, with a slave state admitted for every free state, for as long as that was viable. But with the accession of the Western Territories after the Mexican War and the Treaty of Guadelupe-Hidalgo, California came in as a state, and the Southwestern Territories were clearly not suitable for slavery, so the balance began to track off. The issue of slavery and its expansion was delicate, and the slave states were slowly losing their balance in the Senate (it was long ago lost in the House). But this was occurring peacefully, if with tension. The Missouri Compromise showed the degree to which freesoil and slave state Congressmen and politicians of all stripes were willing and able to work out compromises that kept the union together, and which had the effect - which everyone saw - of slowly, slowly changing the government into a freesoil dominated institution. This slow process raised tension, but it was negotiated out. In 1856, the United States was NOT headed for a Civil War.
Then the Supreme Court overruled the Missouri Compromise.
Suddenly, the issue of slavery was thrown back open in EVERY bit of Western Territory. The immediate result was Bleeding Kansas, in 1858, with freesoilers and pro-slavery Americans butchering each other, hardening attitudes, and aiming at fighting it out, on small battlefields, the slave versus free issue. It was against this backdrop of bloodshed, which had NOT been the case before Dred Scott, and which Dred Scott precipitated by overruling 50 years of careful legislative compromise in Congress, that attitudes hardened all around, led to the abolitionist party surging forward as the newly popular Republican Party, and the Civil War.
Had there been no Dred Scott decision, there is no reason to believe that the Missouri Compromise approach would not have continued, with the slave states being limited to the South and gradually, gradually, over the course of time, slavery being pared back and perhaps eliminated through political compromise, perhaps including some sort of federal buyout. Nobody knows, because the democratic, legislative process was utterly short circuited and 50 years of political compromise ignored by the Supreme Court. Dred Scott is the proximate cause of the Civil War. Catastrophic opinion number one.
Catastrophic opinion number 2 was Plessy v. Ferguson, decided in 1896, which said that "Separate but equal" was constitutional. Of course it was NOT constitutional at all! That was the whole POINT of the 13th, 14th and 15th Amendments to the Constitution, adopted by the People in the several States, and the Civil Rights Acts of 1866 and 1873, enacted by Congress. The Civil War having occurred, the People, and Congress, resolved to make a clean break with the past of slavery. They voted to make the anti-slavery and voting rights amendments directly applicable to the STATES. Now, had the Supreme Court done this, or Congress done this, it would have been unconstitutional under the Constitution of 1787. But that's the point: the People, through the States, AMENDED the Constitution so that these race-related issues WOULD BE federal issues. And the Congress passed two comprehensive acts to prevent anything like Jim Crow from growing up. That was the will of the People, and of the States, written into the Constitution and underwritten by Congress after the Civil War.
Until the Supreme Court stepped in with Plessy and effectively ignored all of that. Now, had the Constitution NOT been amended three times by the People and the States after the Civil War, the Supreme Court would have had a point: the Civil Rights Acts of 1866 and 1873 would have been unconstitutional prior to those amendments. But the Constitution in 1896 was not the Constitution if 1787. It was the Constitution of 1787 PLUS THREE POST CIVIL WAR AMENDMENTS. The Supreme Court, arrogantly and with no basis in law, tore those three amendments out of the Constitution, pretended they didn't exist, pretended that they didn't give the Federal government the effective power to prevent segregationist legislation, and read "Separate but Equal" into the Constitution.
Everyone celebrates Brown v. Board of Education in the 1950s as being this great opinion by which the Supreme Court led the way in civil rights in America.
Horse shit.
The People, the States and Congress led the way in Civil Rights by amending the Constitution three times and creating two Civil Rights Acts that made Jim Crow-type laws impossible. It was the Supreme Court, acting alone, that overrode the Congress, and overrode the Constitution itself, to allow Jim Crow. That in Brown v. Board of Education the Supreme Court finally decided to read the 13th, 14th and 15th Amendments back into the Constitution is not to the Court's CREDIT. They SHOULD have done that 60 years before and there wouldn't have BEEN Jim Crow in the first place.
The Supreme Court of the United States, through Plessy, made Southern segregation and Jim Crow possible.
That dark period of our history was the second case of the Supreme Court overriding the will of the People, the States and the Congress.
The third case, Lochner in 1905, caused the New Deal.
Wait! That was FDR!
No. FDR was merely reacting to an impossible economic and political situation created by the Supreme Court in the third catastrophic opinion.
Economic regulation of labor conditions is a matter for state law, right?
For example, the Federal government - according to a strict constructionist - should not be limiting bakers' working hours to 10 hours per day, 6 days per week, but certainly the STATES have the power and the right to set such regulations within their borders if they so choose, right?
Makes sense.
Not according to the Supreme Court.
In 1905, New York passed a law that did that: limited baker's hours to 10 hours a day.
The Supreme Court of the United States intervened, and in the Lochner decision decreed that the right of private contract overrode all federal or state law, and that therefore neither the Federal government NOR the state governments had ANY power to regulate labor relations at all. Neither the feds nor the states could regulate working hours, minimum wage, working conditions - ANYTHING. This was all said by the Supreme Court to be purely a matter of private contract with which NO government in America could "interfere".
Now, a strict constructionist MIGHT argue that this holds true for the FEDERAL government, perhaps under the 9th and 10th Amendments. But by no stretch of the imagination is it possible to read the Constitution and say that the State governments cannot regulate working conditions.
And yet, that is precisely what the Supreme Court did, in Lochner, in 1905.
The result is predictable: employers and management overreached aggressively, provoking a violent labor union organization movement. Conditions spiralled out of hand, and there was no political safety valve at all. As long as times were prosperous, it was possible to overlook all of this. But once the Depression hit, with 25% unemployment, the political pressures built to the exploding point.
Enter FDR and his New Deal. Now, the Supreme Court, relying on Lochner, struck down everything Roosevelt did until he finally threatened to increase the size of the Court to 12 justices and pack it with appointees. In West Coast Hotel (1937), the Supreme Court finally relented and allowed the regulation of working conditions. Of course, by that point FDR had built up a NATIONAL head of steam for his labor policies, and was able to enact them comprehensively across the United States. And from this, many people who dislike government regulation blame the "beginning of the end" on FDR and the New Deal.
But a more discerning look will see that this was not really fair. By 1937, FDR was facing a full-blown economic crisis. The Depression had been grinding on for 8 years. People were literally going without food. The Nazis were moving aggressively in Europe, and Imperial Japan had already invaded China. The US HAD to snap out of the Depression, and relief was needed. Further, politically, things in the United States were moving towards a social explosion likely to result in a very socialistic, or worse, government.
One could argue that, nevertheless, the STATES should have been the ones implementing new labor policies. And maybe that was true. But remember, because of Lochner, from 1905 to 1937 the states were BARRED from passing any meaningful labor regulations. ALL government was held to be unable to do anything regarding the critical jobs and labor issues, thanks to a bad Supreme Court decision 30 years before.
Once that decision was overturned, in 1937, FDR responded to a national emergency by national labor policies long prepared. It is difficult for me to fault him for doing so.
Had the Supreme Court not made its ridiculous and constitutionally unsupportable ruling in Lochner in 1905, during those intervening three decades the states could have developed labor law and regulation, making the New Deal explosion less vital, blunting the drive for massive, sweeping change. Things COULD HAVE BEEN decided politically by the States. Because of the Supreme Court, they had to be decided by the Feds, all at once, in FDR's day. Objectively, I cannot blame FDR for the New Deal. He was the President, and he was reacting to a disaster. Things got that catastrophically bad because of the Supreme Court.
The most recent disastrous Supreme Court decision was Roe v. Wade. Not just because of the 44 million dead babies, but because of the complete lack of Constitutional language on which the Court could hang its decision.
Just as in Lochner, in Plessy and in Dred Scott, a majority of justices of the Supreme Court found no law in the Constitution, and simply made up law to fit their personal opinions. And inflicted the jurisprudential disaster of judicial overreach on the country with which we are still living.
But for Roe, tort reform would be easy: no Court would dream of striking down the legislature's limits. And so on.
So, to return to your original comment after this article-length exploration of the 4 Pathological Cases that created modern America, I don't think the encroachment has really been over 60 years. I think it is identifiable to 4 specific points in time, when the Supreme Court, sua sponte, overran its authority and acted unwisely. And the rest of us have to live with the consequences.
I think it only seems like FDR was responsible for everything. FDR faced a labor situation that SHOULD have been gradually regulated and rectified over thirty years of democratic development at the level of the States. It was the Supreme Court, alone, that stepped in and made that impossible.
It's interesting. One could go back to Marbury, but Marbury was really a hang fire. Yes, the Court found for Marbury, but only technically. As a practical matter, Marbury couldn't take the post. Also, Marbury was really an override of the EXECUTIVE, which is considerably less offensive than an override of CONGRESS.
The next time that the Marbury Doctrine was really invoked full strength...and the first significant case I can think of where Congress itself was overridden, was DRED SCOTT!
And the very next time was...PLESSY!
In other words, it's not really a case of hundreds of cases passing just fine and one or two bad notes. Rather, it's the case that the first couple of times the doctrine of override of CONGRESS was exercised were the two most infamous cases in our history before Roe. (Nobody puts Lochner in the same league, but anyone who thinks FDR was the AntiChrist really is misdirecting his anger. FDR was the Chief Executive of a country in an economic death spiral facing an impending war. He did not have time to be Emily Post. He took action. Things got to that point because the Supreme Court took away the power of democracy, at both the Federal and State level, to regulate half the economy. Lochner really was a disaster. Hate the New Deal? Blame the Supremes, not FDR.)
Judicial override of Executive Orders, a la Marbury, is not so terrible. But Judicial override of the legislature is a more perilous thing. And judicial override of the Constitution itself - Plessy - is worst of all. In Roe, the justices just made up a doctrine out of wholecloth, which is bad. But in Plessy, they outright ignored the latest three Amendments to the Constitution, and sought to judicially reverse the outcome of the Civil War.
The lone dissenter, Justice Harlan, who was incidentally also the only former Southern slaveholder on the Court, understood the Constitution as it had been amended when he wrote that our Constitution is colorblind. And if HE got it, the other justices surely did too. So what they did was intentional, and malicious, and arrogant. And we're still paying the price.
Actually, we're still paying the price of Dred Scott, Plessy, Lochner and Roe. Bad "gifts" that just keep giving!
I think that this current Administation and the Republican establishment understand that we need to put strict constructionists on the court.
Interestingly, I don't think that the right answer to Roe is to overturn it and return the issue to the States. I think that the right result is to read the equal protection and due process clauses of the Constitution, recognize that they apply to all people in the United States, and ban all abortion as a matter of Constitutional law: it is the murder of an innocent baby without due process of law. The Constitution has prohibited that since 1787. It's time for REALLY strict constructionists to read that and apply it. States never had the right to randomly kill their innocent citizens for the convenience of others. And the Supreme Court should say so in overruling Roe and banning all abortion in the US except to save the life of the mother, after medical review, as a matter of equal protection of all Americans.
Saying that killing the innocent is a "states rights" issue is not constitutionally correct.
FDR used the Commerce Clause in a manner far beyond the original intent and nature of that power as granted the federal government by the founders. What FDR did amounted to usurpation, as a matter of convenience.
Yes, he did push the Commerce Clause beyond anything that had been done before.
But he would not have had to do so were the situation not so dire, and if there already was a network of State regulation to work with. Lochner made sure that not only the Feds couldn't "interfere", commerce clause or no, with labor relations, but States couldn't either.
There was no Federal "usurpation" when FDR did what he did. There was not a skein of State law swept aside. Thanks to the Supreme Court, the States hadn't been allowed to develop any sort of comprehensive law in the whole field. FDR was facing a national disaster and mortal foreign enemy, and rising internal tensions of really desperate people, and he had to start from scratch.
What was he supposed to do? Wait for the States to cobble something together? But the States were not able to rise to challenge Lochner. It was FDR and his New Deal that kept getting shot down by the Supreme Court. There was no time on the clock. Social tensions were rising to the bursting point in America, and the Nazis were on the march. FDR needed a functioning American economy, he needed to defuse boiling social tensions, and he needed to do it FAST because of impending war.
The Supreme Court created the mess with Lochner. FDR had to lead the country out of a mess in a hurry, and the Nazis and Japanese were not going to give us the luxury of time.
The depression was global. Nothing FDR did helped one bit, and Wickard v Filburn didn't have anything to with labor unions.
In Roe, the justices just made up a doctrine out of wholecloth, which is bad.
In Roe they determined that under the 14ths due process clause, States could not decree early term abortion to be murder. This was not 'bad' for the civil rights of women so charged.
But in Plessy, they outright ignored the latest three Amendments to the Constitution, and sought to judicially reverse the outcome of the Civil War.
You defend the 14th Amendments civil rights principles in Plessy, yet you claim the 14ths due process principle is wrong in Roe.
Could you explain this apparent contradiction in your reasoning?
Excellence In Posting
My response apparently didn't get posted.
I'll repeat.
Thanks for the kind words.
Now I am going to disturb you.
I don't believe that the proper disposition of Roe is to return abortion to the States, because I do not believe that the States have the power, under the equal protection and due process clauses of the Constitution, to vote to randomly slay innocent children.
I think that the correct answer is for the Supreme Court to overturn Roe on the basis that abortion is unconstitutional as a violation of the equal protection and due process rights of people - to wit: the unborn.
The States have no power at all to vote to randomly slay children.
I think that the correct answer is for the Supreme Court to overturn Roe on the basis that abortion is unconstitutional as a violation of the equal protection and due process rights of people - to wit: the unborn.
The USSC has no power at all to decide at what precise point a fertilized human egg becomes a person. Their previous guesswork on the legality of the matter in Roe will probably have to suffice for now.
The contention that legal person-hood begins [and can be protected by the state] at the instant of conception is incompatible with our principles of common law.
Wait.
Are you arguing that neither the States nor the Federal government can decide when life begins as a matter of law, because of precepts of Common Law?
Or are you arguing that the Supreme Court has no power to make such a decision, and that this is to be left to the States alone to decide?
Suppose the States decide that life begins at the age of reason, and so vote. And this allows parents to kill children under the age of 7. Is the Supreme Court powerless to strike down that law under your theory?
I think that the correct answer is for the Supreme Court to overturn Roe on the basis that abortion is unconstitutional as a violation of the equal protection and due process rights of people - to wit: the unborn.
The USSC has no power at all to decide at what precise point a fertilized human egg becomes a person. Their previous guesswork on the legality of the matter in Roe will probably have to suffice for now.
The contention that legal person-hood begins [and can be protected by the state] at the instant of conception is incompatible with our principles of common law.
Are you arguing that neither the States nor the Federal government can decide when life begins as a matter of law, because of precepts of Common Law?
My words saying that are right above, are they not.
Or are you arguing that the Supreme Court has no power to make such a decision, and that this is to be left to the States alone to decide?
Neither have such powers, obviously.
Suppose the States decide that life begins at the age of reason, and so vote.
The legislators that so voted would be commited to mental institutions, no doubt.
And this allows parents to kill children under the age of 7. Is the Supreme Court powerless to strike down that law under your theory?
Babble on with such nonsense if you like, but it hardly helps your cause.
BTW, are you ever going to answer my question about the 14th?
I'm sorry, I don't remember your question about the 14th.
I will answer it if you'll point me back to it.
So, you don't believe that there is any level of government, either the federal government, or the states (or, I suppose, municipalities), that has any power at all - either in the legislature, or in the executive, or in the judiciary, or - presumably - in the people voting in a ballot initiative, that has the authority to decide when life begins.
Query: would your answer change if what was involved was a constitutional amendment? If two-thirds of each house of Congress and three quarters of the States agreed to amend the Constitution to say that under American law, life begins at conception, would that succeed in establishing that principle as a matter of law?
I'm sorry, I don't remember your question about the 14th. I will answer it if you'll point me back to it.
#111. -- It helps if you read all your replies.
So, you don't believe that there is any level of government, either the federal government, or the states (or, I suppose, municipalities), that has any power at all
'So', do you think framing leading questions is debate?
- either in the legislature, or in the executive, or in the judiciary, or - presumably - in the people voting in a ballot initiative,
Not to mention convoluted & rambling as well.
that has the authority to decide when life begins.
No I don't, as was clear in my post at 115: 'The contention that legal person-hood begins [and can be protected by the state] at the instant of conception is incompatible with our principles of common law.'
Query: would your answer change if what was involved was a constitutional amendment? If two-thirds of each house of Congress and three quarters of the States agreed to amend the Constitution to say that under American law, life begins at conception, would that succeed in establishing that principle as a matter of law?
No. -- We cannot 'amend away' our freedom. -- Amendments repugnant to our basic principles of individual rights, under our rule of Constitutional law, would not be valid. -- Check out Marbury v Madison [1803] for an early view of this matter.
Marbury v. Madison had nothing to do with amending the Constitution.
Roe wasn't based on 14th Amendment due process. It was based on emanations of penumbras of privacy rights made up out of wholecloth in Griswold v. Connecticut.
You have an interesting, perhaps unique, view on the limits of Constitutional amendment. Certainly the Constitution itself contains no such limits as you suggest. Nor has any Supreme Court (or any other US court that I am aware of) ever opined that such a limitation exists. But hey, we're all entitled to our opinions.
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