Posted on 09/02/2009 10:50:22 AM PDT by Titus Quinctius Cincinnatus
The arguments against the power of the states to arrest federal tyranny are as predictable as the sun coming up in the morning, and they are as philosophical in nature as the Declaration of Independence. One of the most commonly used arguments against such a State power is the United States Supreme Court (US S CT) dicta opinion in Marbury v. Madison in 1803, written by Chief Justice John Marshall. Before getting into the misunderstandings and misapplications of that infamous decision, we must first recognize the source and character of Marshall's opinion. As Marshall himself admitted that the US is to be a country of "laws, not men," we must establish that Marshall's opinion does not equate to the "supreme law of the land" which the states and individuals are bound to obey. If our submission only requires that the US S CT speak, then we do not live as freemen, but as slaves.
Marshall was an ardent member of the Federalist Party (a pro-centralist party) and served as the Secretary of State in the pro-centralist administration of President John Adams, who appointed Marshall to the US S CT in 1801 at the "midnight" hour before Thomas Jefferson was sworn into office as President of the US. Marshall's nationalist opinions were no secret either. Marshall believed that the US Constitution and Union were formed by the aggregate whole of the American people, and not by a compact of the states; that the Union formed "one nation, indivisible" and not a confederation of states; that State sovereignty as expressed in the Tenth Amendment equated more to a general idea than to any real applicable and relevant State power over the federal government; that the Constitution must be liberally interpreted for the sake of expanding federal powers at the expense of State sovereignty; and that the idea of State sovereignty was literally ridiculous. By the way, even most self-called conservatives today probably subscribe to these political beliefs, not even knowing the real historical facts behind such fallacious ideology.
Money quote. I totally agree. I do not think that SC precedents ought to take the place of the plain wording of the actual Constitution itself.
Tenth Amendment ping!
The Constitution means whatever 9 lifetime political appointees say it means. It’s a tidy system.
I find it legally and logically indefensible to cite the Constitution as the authority by which one negates the Constitution.
It is even more ludicrous to “discover” rights barely hinted at in the mythical “penumbrae” while ignoring the explicit rights described in the various amendments.
But it is axiomatic that the Left will not allow a mere document to thwart its insidious advance.
James Madison and Patrick Henry bounced around from one side to the other.
Henry started out with the State Compact faction and moved over to the Whole People faction in the last two years of his life.
Madison started out with the State Compact faction, but moved to the Whole People faction in the last years of his long life.
After tempers had cooled from the 1832 South Carolina secession attempt, Madison wrote a pamphlet printed in many of the nation's newspapers challenging Calhoun's State Compact stance on nullification and secession. Here Madison took the Whole People position. He further challenged Calhoun to debate him in the press.
Calhoun's response was to call Madison a senile old fool and state that he would not engage in a battle of wits with an unarmed man. This was a mistake. We needed a debate on this issue between a Framer and another great legal mind, and this would have provided the opportunity. We are all the worse for Calhoun's refusal.
Actually, it was both.
I don't think he bounced around. He saw it as both--part national, part federal. He saw the people acting in their sovereign capacity directly and as agents of the states.
Very brief but prescient article that points to the beginnings of the notion of feral government supremacy. For anyone that hasn't done so, do some research on Chief Justice John Marshall. You'll find he was a hard core advocate of the general government's superior claim to just about anything it chose to stick its nose in to. Right or wrong, since our founding he probably contributed as much as anyone to weakening the status of The States.
Thanks for the ping!
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply."
If not the court then who?
Our founding fathers were smart enough to understand that rebellion was a necessary act for and of freedom.
>>The Constitution means whatever 9 lifetime political appointees say it means. It’s a tidy system.<<
Then again, Jackson put Marshall in his place with: “He’s made his decision; now let him enforce it”. His reason for saying it was wrong; however, his reasoning was correct.
Ping
The Whole People stance is still dominant because its adherents won the War Between the States. That conflict, unfortunately, discredited the entire concept of federalism. Lincoln took Henry Clay's theory that the Union created the states, not vice-versa, to the ultimate degree.
The Jeffersonian impulse, once the driving impulse behind federalism, took shape after the war in the idea of taking Hamilton's -- and Lincoln's -- supreme federal government, grabbing control of it, and putting it to work on behalf of the people, not on behalf of the nation's commercial interests. In the 1870's, that caused the formation of the Progressive Movement, which like all American political movements spent some 30 years in the desert before achieving power in the person of Theodore Roosevelt.
That's how those "filthy communist pigs" came into being. The only way to fight them is to revive federalism.
Marshall would have us believe that the implied contract between the government and People is greater that the written contract between the States that created the federal government.
All while saying we're a Nation of Laws, not of Men.
Hypocrisy, anyone? :-)
“You can divide the interpretation of this issue into those who adhere to the State Compact concept and those who adhere to the Whole People concept.”
The Whole People concept never made any sense to me, except in the vaguely philosophical sense that the people are sovereign. It’s a fine concept, but totally impractical, unless you water down popular sovereignty through a series of legal catches, as we Americans have historically done.
Anyway, that’s not the point I want to make. The Constitution indeed does invoke the name of We the People. It also says it wants to form a More Perfect Union, which means a union of states, so far as I can tell. Which is more important? Well, how did the Constitution become law? Through a national popular vote? Heck no! The states ratified it. There’s your answer.
“Actually, it was both.”
True. It was the people, or a significant portion of them—more of them, in many cases, than participated in establishing their own state constitutions—who ratified the Constitution through the mouthpiece of their respective states.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.