Posted on 06/20/2011 12:02:57 AM PDT by ForGod'sSake
OK, I just read it.
This is HUGE!!!
I first read NY v US about 1997 and realized then that it by itself was almost enough to turn the entire governmental structure on it’s head. It is probably the most important SC case in the last hundred years.
This case recognizes a couple things:
That the Tenth amendment still exists and is in effect
That ultimately, the law is about human beings. It may effect corporations, but natural men and women have a stake. For a while lately, there has been a direction of the Court to recognize corporate fictions like States and corporations and classes but not see so much individual humans. This is a clear reversal of that trend.
That incarceration under a federal statute that is invalid or otherwise defective amounts to what can be called “an injury in fact”. This is common law talking here, folks.
Wow. I’m gonna have to read it again and check the citations...
>I mean...who cares about Article II, section 1 clause 5 anyway?
If that’s the way it is, then can *I* run in the 2012 Presidential races? {I’m only missing the ‘age’ requirement...}
;)
>>Stunning that the lefties on the bench went along with this, making it unanimous.
>
>I don’t trust Ginsburg, Kagan or Sotomayor. They’ll use this ruling as precedent for using the 10th for liberal purposes. Mark my words.
“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.” — Ruth Ginsburg, sole dissent
I have to say, my respect for Ginsburg was increased by the recent [King?] ruling.
On the surface at least, it certainly appears so. Fact is, if I read it correctly, I can't find any other way to look at it. What's next, standing for an individual against the federales' overreach re 2nd Amendment guarantees? 1st Amendment??? Patiently awaiting on Constitutional "scholars" to weigh in. Oh hey, Jug Ears is a Constitutional scholar. We could check with him...
Well, like they say, if at first you don't secede...
If the 10th gets used more, even for the wrong purposes, the "federal" (actually National Socialist government would be more honest) government is pushed back closer to their original sphere of authority. Nurturing this tree is good, even if the potheads get the first bite of the apple, as I noted in another post.
The way I read it is that if there is any substantive right that you have enumerated to you IN YOUR STATE then a trespass on that right by the feds could give you standing as an injury.
Thing is, I can’t see any way that cases yet to come that cite this decision cannot make clear for more people how the governments actually operate. I’m not accusing anyone of anything devious, but most don’t understand that the rights you have as one of “We the people...” ARE NOT THE SAME THING as the privileges and immunities you get as a “citizen of the United States”.
Yeah, I know, Ruth “Bussy” Ginsburg shocks you at times, sometimes putting even the “good” ones to shame. Stevens could show amazing common sense once in a great while too. It’s like they have to save up for a few years and splurge it all on one decision or something.
Hard cases make bad law, the saying goes. Well, a bizarre case that the Supreme Court decided unanimously today has set a good precedent for the enforcement of residual Tenth Amendment powers.
As I described in December when Cato filed a brief in Bond v. United States:
Carol Anne Bond learned that her best friend was having an affair with her husband, so she spread toxic chemicals on the woman’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement authorities to resolve, however, a federal prosecutor charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.
Bond pled guilty and was sentenced but now appeals her conviction on the ground that the statute at issue violates the Tenth Amendment – in that her offense was local in nature and not properly subject to federal prosecution. The Third Circuit declined to reach the constitutional question, holding that Bond did not have standing to raise a Tenth Amendment challenge and that, following Supreme Court precedent, a state actor must be a party to the suit in order to challenge the federal government for impinging on state sovereignty. Bond now seeks Supreme Court review on the ground that the statute, as applied to her, is beyond the federal government’s enumerated powers.
Our brief argued that a defendant clearly has standing to challenge the constitutionality of the statute under which she was convicted, but also that lower courts are wrong in assuming that both the president’s power to make treaties and Congress’s power to make laws executing those treaties are unconstrained by the Constitution. That is, many judges seem to erroneously think that treaties can give the federal government powers it doesn’t otherwise have under the Constitution.
The Court’s ruling today, in a tight opinion by Justice Kennedy, makes clear that individuals can indeed raise Tenth Amendment claims that the federal government has overstepped its enumerated powers. The Court took no position on the merits of Bond’s constitutional argument — relating to the expansion of federal criminal law via the Treaty Power into areas that should be handled at the state and local levels – but this non-decision is in itself a positive development because it signals that the underlying issue is in dispute.
The Third Circuit is now charged with determining in the first instance whether the law implementing the chemical weapons treaty is “necessary and proper for carrying into execution” the Treaty Power, including whether it’s overbroad if it snares people like Bond.
Even if Bond loses on the merits in the Third Circuit and/or the Supreme Court, however, her case has confirmed the idea that someone directly and particularly harmed by a federal law can challenge that law’s constitutionality. As Justice Ginsburg said in her concurrence,
a court has no “prudential” license todecline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. ….
In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction depends upon whether the Constitution permits Congress to enact §229. Her claim that it does not must be considered and decided on the merits.
For more on the proper scope of the Treaty Power, I recommend Georgetown law professor Nicholas Quinn Rosenkranz’s “Executing the Treaty Power.”
Update:
Josh Blackman parses Justice Kennedy’s opinion and shows how it tracks the approach that Randy Barnett and Cato have been taking in our Obamacare briefs.
As far as I know there was no law in the state that spoke directly to the issue but I'm not sure about that. The opinions by the justices seems to imply the possibility that any PERCEIVED violation of and individual's rights under the Constitution by the federales potentially yields standing for an individual. That may be a stretch but that's the way I read it.
For the legally-challenged such as myself, what is the importance of common law here?
Common law is the foundation of law in most of the states in the United States.
It is a law based more on principles than on any specific statutes or regulations.
Many, if not most of the rights spelled out in the Bill of Rights are common law rights (the rights of a FREE MAN, a Freeman).
These are the things that can be traced back to the time when a bunch of Lords in England sued for peace and got the king to sign the Great Charter. The Magna Carta.
Oh WOW! This is really beyond great! Truly a Victory for Freedom...maybe now some of these idiot laws Washington wants us to abide by may indeed be handled at the state level.
May this be the start of a long-awaited renaissance for the 10th Amendment.
Unlike the majority, I would look to history to ascertain the original meaning of the Clause. At least in American law, the phrase (or its close approximation) appears to stem from the 1606 Charter of Virginia, which provided that "all and every Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies, shall HAVE and enjoy all Liberties, Franchises, and Immunities; as if they had been abiding and born, within this our Realme of England." Federal and State Constitutions, Colonial Charters and Other Organic Laws 3788 (F. Thorpe ed. 1909). Other colonial charters contained similar guarantees.
Years later, as tensions between England and the American Colonies increased, the colonists adopted resolutions reasserting their entitlement to the privileges or immunities of English citizenship.
The colonists' repeated assertions that they maintained the rights, privileges and immunities of persons "born within the realm of England" and "natural born" persons suggests that, at the time of the founding, the terms "privileges" and "immunities" (and their counterparts) were understood to refer to those fundamental rights and liberties specifically enjoyed by English citizens, and more broadly, by all persons.
J. Thomas, dissenting in Saenz v Roe
Hear, hear! Hope springs eternal or something like that. As you're probably aware, there are numerous efforts from many states issuing challenges to Jug Ears and his politburo czars. Much of it of course under the auspices of the 10th Amendment. Seems we've put off til the 11th hour the job, nay, the duty of really giving some serious blowback to the feral government. May we persevere.
We will put this precedent to work immediately when we file our opening brief in the Obamacare lawsuit Monday, and also in our defense of Save Our Secret Ballot against the NLRB challenge, and many more cases to come.
(Emphasis mine)
I am so looking forward to hearing about those lawsuits. [more gleeful than I sound]
Mrkd
Oh me too! And I am delighted beyond measure they are "putting it to work" in the Obamacare Lawsuit!...Which is pretty much what I thought on once the news was out. Wonderful!
Thanks for the explanation. I’ve always heard the term “common law”, and understood it referred to a body of law from England that had never been legislated. I never understood how such a thing could be considered part of American law.
Is it considered to be included due to the 9th amendment’s enumeration clause?
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