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.
Indeed . . . I’m concerned that this will not be resolved without another bloody conflagration. Or, The Land of the Proud and the Free will go quietly into that good night like a frog in a pan of water and we’ll follow Europe’s lead into decadent oblivion and be at the mercy of the lean, hungry barbarians from the Middle East.
That’s just what Robert E. Lee, Randy Weaver and David Koresh said!
To me, the key point of the article is this:
"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."
It is incorrect, therefore, to conclude that the contents of the contract (U.S. Constitution) apply to the states because of the Supremacy Clause. It is simply the document itself (and the laws made in pursuance thereof) that are supreme.
Personally I cannot fault Lincoln for his defence of The Union, despite my possibly extreme opinions on behalf of individual rights. And I'm a 'Carolina boy'. I remain convinced that the supremecy of the Federal Government was necessary if only to ensure peace and equanimity between the States, beneath a National banner. Problem is, blatant and weakly curtailed power never diminishes... it grows more powerful. That's well established.
If the Supreme Court were to decide tomorrow that children may be eaten, children will be eaten. Doesn't matter what Utah thinks. If nationwide educational busing is mandated by Congress... it is so, even if Georgia demurs. The real question is not IS the Federal Government supreme... but SHOULD it be. And as has been competently explained in previous posts... that's a dicey question.
I've reached the same conclusion. If it is ever to change direction, it will not be through politics nor through violence. We will have to challenge the culture that permits it all until, finally, we reach a critical mass and, as in the former Soviet Union & former East Germany, we can just shrug it off. And then hope we don't wind up with a Putin.
I suppose it's easier for a non-American to view America for what they think it to be, but no-one is without a filter, so the view cannot be complete. Interesting, though -- and perhaps offers helpful hints for self-analysis.
Much the same can be for our view of others.
On balance, however, I think I would rather be a part of a civilization that is evolving through trial and error than one that is static and losing its human-ness.
Me: Pick a topic, any topic, and there's overlapping jurisdiction. Usually the Feds can assert supremacy if they need to.
You: Yes, if the states allow it and if the people of the states allow the states to allow it. That's a lot of allow's, I know, but that's the way it was intended to work.
Well, I think you've got to pare back the "allows" a bit. Under the Constitution, the States do NOT have a veto over acts of the Federal government that the Federal government takes within its sphere of delegated powers. An example: the power to impose tarriffs, or to establish a navy. These are not powers of the States at all. The People delegated these powers to the Federal government in the Constitution, they delegated them exclusively to the Federal government in the Constitution, and the States do not have any power at any level or override that, or to challenge it. Certainly they don't have the power to disobey it. That is called "rebellion", and the Constitution gives the Federal government the power to suppress rebellion.
Also, take a good look at the Constitution and its history. It is not, on its own terms, a creation of the States, but of the People. Nor was the Constitutional Convention exactly convened by the States. It was convened by the leading men of the country because the Confederation was not working. The Constitution needed to be ratified by a certain number of States to come into effect, but that ratification process took place through democratically elected legislatures. My point is that the US Constitution was not created by the State governments getting together and signing a deal using the existing structures of government at the time, under which each State got a veto. Rather, it was formulated by an independent convention formed by the leaders of the People, to break the logjam that the Confederative form of government had created.
The intent was to create a powerful, but limited national government that would have full powers to do certain things that needed to be done at the national level and could not be done on the state level, such as national defense, or the survey, parcelling, sale, and admission of Western Territories into the US as future States. The original 13 states were self-governing, but 46 of the other 47 were first organized by the Federal Government and later elevated to status of State by the People of that state, once they had met certain Federal guidelines. Certainly the entity which is today Massachussetts was not a creation of the Federal government of the United States. But just as certainly, the entity that is today the State of Ohio, or Illinois, or Montana, was first created as a territorial subdivision of the Federal government, and was only elevated to the status of State by meeting federal criteria, not by some sua sponte assertion of sovereignty.
I think street theatre should be sufficient. The bloody conflagration should be reserved for our common enemy ... those who want to kill us both. They are already pouring through the gates.
Lee made that ~claim~, while Weaver & Koresh could demonstrate an actual attack on their rights.
Weaver & Koresh could demonstrate an actual attack on their rights.Law breakers both.
Lovely examples for us all to 'emulate' to be sure ...
Why is it 99.999 percent of us have NO problem with 'the law' but these guys did?
Simple answer: either it was predestination/preordination, or, they strayed just a little TOO FAR over the line and 'broke the law' - which can, and usually does, have consequences in this country ...
Much good it did them. When I saw Mr. Weaver stand up in that hearing room and apologize for not trusting the very people who had set him up and murdered his wife and son, I knew it was all over.
As for General Lee, he followed his heart and his loyalty to Virginia and thousands died standing up to and for Washington. The worst is yet to come.
Thanks for posting this.
To me, the key point of the article is this:
"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."
It is incorrect, therefore, to conclude that the contents of the contract (U.S. Constitution) apply to the states because of the Supremacy Clause.
You two make a baffling, illogical conclusion. You admit that an article of the Constitutional contract says that the contract is the supreme law, the laws of any State "notwithstanding", -- yet you claim it doesn't apply to States.
It is simply the document itself (and the laws made in pursuance thereof) that are supreme.
Exactly. "The document itself" is our supreme law, the laws of any State "notwithstanding".
Thus the Constitution and ALL its Amendments apply to the States.
Thanks for the reply. I'll read more.
In constitutional theory, no. In brute force practice, yes. That was one of the big developments from the Civil War.
Perhaps it's a question one could have asked Sherman on his march to the sea.
Quoting:
"PREAMBLE
"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.
"The first ten amendments are "declaratory and restrictive clauses". This means they supersede all other parts of our Constitution and restrict the powers of our Constitution.
"There are people in this country that do not want you to know that these two sentences ever existed. For many years these words were "omitted" from copies of our Constitution. Public and private colleges alike have based their whole interpretation of our Constitution on the fraudulent version of this text.
"Those corrupt individuals have claimed that the amendments can be changed by the will of the people. By this line of reasoning the amendments are open to interpretation. This is a clever deception. The Bill of Rights is separate from the other amendments. The Bill of Rights is a declaration of restrictions to the powers of our Constitution.
"The Bill of Rights restricts the Constitution.
"The Constitution restricts the powers of government.
"The deception is that the government can interpret the all of the amendments and the Constitution itself. Without the presence of the Preamble to the Bill of Rights this may be a valid argument.
"End the deception."
(end quote.)
Law breakers both.
Not true. Both men [& their families] were attacked before reasonable attempts were made to arrest them, and bring them to trial, -- as you well know.
Lovely examples for us all to 'emulate' to be sure ...
No one here has set them up as examples to emulate. That's your delusion, _jim.
Why is it 99.999 percent of us have NO problem with 'the law' but these guys did?
Apparently its because they 'dissed' the BATF. It's a little like how you dis our Constitutional rule of law, _jim my boy.
Simple answer: either it was predestination/preordination, or, they strayed just a little TOO FAR over the line and 'broke the law' - which can, and usually does, have consequences in this country ...
Indeed it does.. Yet we have men like you who run about this site showing disdain for our BOR's, who are rarely even chastised for their over the line behavior. Go figure.
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