Posted on 02/07/2015 5:25:48 AM PST by cotton1706
The Constitution’s first amendment after the Bill of Rights represented the first use of congressional power to contradict a Supreme Court decision.
The case of Chisholm v. Georgia in 1793 was the first significant decision handed down by the Court, and it was so controversial that lawmakers moved quickly to nullify its findings.
The controversy had its roots in the Revolutionary War. In 1777, the Executive Council of Georgia authorized the purchase of needed supplies from a South Carolina businessman. After receiving the supplies, Georgia didn’t pay as promised.
After the merchant’s death, the executor of his estate, Alexander Chisholm, took Georgia to court to collect the debt. Georgia said that it was a sovereign state and not subject to the authority of the federal courts unless it decided to be sued.
In a 4-to-1 decision, the Court said that “the people of the United States” intended to bind the states to the national government, and that supreme or sovereign power was retained by citizens themselves, not by the “artificial person” of the State of Georgia.
Therefore, federal courts had the power to hear disputes between private citizens and States, under the Court’s interpretation of the Constitution’s Article III, Section 2.
The Chisholm decision was seen by most lawmakers as a clear intrusion on state powers, and Congress moved quickly to amend the Constitution, with the permissions of the states.
The 11th Amendment as proposed and ratified on February 7, 1795, specifically overturned Chisholm, and it broadly prevented suits against states by citizens of other states or by citizens or subjects of foreign jurisdictions.
(Excerpt) Read more at news.yahoo.com ...
I’m not really sure I understand how “justice” was secured in this particular example. I doubt if Mr. Chrisholm felt it was.
It kept the 10th Amendment in place by stopping the court's opinion that
Perhaps not justice per se, but it also reinforced that the States are not bound (overridden) by the Feds.
It seems to me that securing justice isn’t the question so much as determining who gets to decide what justice should be.
Do you want the federal government to decide that the speed limit should be 55 mph, or should each state decide what speeds motorists should travel in their state?
Can Mr. Chisholm more-directly influence his own state legislature or the U.S. Congress?
Justice was not the issue in Crisholm. The authority of the state over its own matters vis a vis the Fed gov was the issue. The Court held in favor of the Fed. Congress denied this interpretation and lobbied the states to insist upon their authority. We are at the opposite point today with the Fed dominating state authority at every turn. We need a return to Crisholm.
This amendment was overturned more than a 100 years later by the Federal court, deciding that the legal agent of the State was not an agent of the state so that he could be sued, but was an agent of the state so that the State’s law could be subject to their nullifying.
Washington’s most corrupt Employees in black robes only require time to overturn any undesirable Prohibition on their or their employers power. Theses people as a group are practiced lairs and tyrants.
“I’m not really sure I understand how “justice” was secured in this particular example. I doubt if Mr. Chrisholm felt it was.”
The losing side always feels that way, the fact is, Mr. Chisholm should have sued in Georgia State court, not Federal court, and if he didn’t feel like he could get redress there he should never have lended the money to Georgia in the first place.
It is not Washington’s place to tell state government’s how to pay their debters. There are inherit risks to lending to a Government, you have to play by their rules which are not always fair. This is no different then when a Foreigner lends to the U.S. government(such as buying our debt).
“Justice was not the issue in Crisholm. The authority of the state over its own matters vis a vis the Fed gov was the issue. The Court held in favor of the Fed. Congress denied this interpretation and lobbied the states to insist upon their authority. We are at the opposite point today with the Fed dominating state authority at every turn. We need a return to Crisholm.”
That is actually not what happened at all. Georgia promised threatened to hang the Federal judge or magistrate should they try to come down and enforce thier edict against the state.
Congress reacted to that threat and the simpathiy of other states who were just as outraged by the Federal court’s edict. Congress did no ‘lobbying’ at all.
“Do you want the federal government to decide that the speed limit should be 55 mph, or should each state decide what speeds motorists should travel in their state?”
That is exactly what we have now. The Feds set the rules, and the states either comply or lose all highway funds.
Speed limits, seat belts, DUI laws, all set by the Feds.
Medicaid, welfare, food stamps, school lunches, the list is endless, all set by the feds.
We need to remember that back then the US Senate represented the states, not the people. The states had much more power. That’s why it was taken away by the progressives under the guise of “democracy.”
That is state’s rights with teeth. “Hang the judge” should again become a battle cry.
Erm, no… that's what Art III, Sec 2, Para 1 actually said:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;— between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
I agree that the judicial system needs reform; here's the Constitutional Amendments I propose:
| Judicial Reform Amendment | Grand Jury Amendment |
|---|---|
| Section I No court or tribunal shall deny inquiry into its jurisdiction or the authority under which it operates; any misrepresentation thereof shall result in the judge and all staff being vacated from their offices and charged with malfeasance. Section II The Constitution may always be used as a defense, the interpretation presented may or may not be correct but the court cannot prevent it from being cited. Section III The Fifth amendment’s prohibition against being tried for the same offence twice is hereby recognized as applying to the offense and not the jurisdiction; therefore no federal case shall be made against a person for actions already tried by the state or subdivision thereof. However, nothing is to prevent a State from trying persons for Treason against their own sovereignty. Section IV The Sixth amendment’s guarantee of a speedy trial is hereby recognized: for every week after the six months from the start of the trial the accused shall be paid the national average wage for one week’s pay, this payment shall be the responsibility and liability of the officers of the court. Section V The Eighth amendment is hereby recognized as preventing excessively long imprisonment: no term of imprisonment shall exceed ten years. The Eighth amendment shall not be held to prevent capital punishment. Section VI The Second amendment is hereby recognized: no court shall bar a juror from wearing his weapon, as he is a free man. Section VII The text of the Constitution should not be arbitrarily reinterpreted and, as the judiciary does such with its doctrine of incorporation, the Fourteenth amendment is hereby repealed. |
Section I The Grand Jury is hereby recognized as an independent, self-directing body of inquisitors comprised of citizens with power to pursue any unlawful conduct to its source, including the government itself. Section II All government agents, officers, judges, justices, employees, representatives, or congressmen may be held to account for obstructing a Grand Jury — upon conviction in a jury trial they shall be fined up to six month’s pay (but not less than one) and may be jailed for an equal term. Section III Any judge or prosecutor refusing to act upon a Presentment shall immediately be evicted from office. Section IV No member of a Grand Jury shall be involuntarily removed for any cause except felony or Treason. Section V The local Sheriff of each county shall appoint the members of the federal Grand Jury for that county within two months after his election and their term shall be of the same length of time as the Sherif but starting six month after the start of his tenure. |
“We need to remember that back then the US Senate represented the states, not the people. The states had much more power. That’s why it was taken away by the progressives under the guise of “democracy.””
It was about corruption supposedly, but of course the 17th amendment really made that problem a whole lot worse, in addition to rendering the Senate just a smaller less representative version of the house.
At the time however it is worth remembering that a number of state’s already elected their Senators by way of a system legally not unlike that of how D.C. miraculously rules itself dispute the Constitution giving Congress ‘exclusive’ jurasitction.
If you ask me getting rid of the 17th Amendment may not be political possible for many generations assuming we are able to take over the schools system and not only wipe out the leftist indoctrination courses and influences but introduce Constitutional studies on the theory of liberty and States rights orientated Constitutional law.
This is in itself the first and foremost priorities for Republican State legislators. For the past 50 years leftist progressives have taken over the Public school systems and used them to sew their lies into the minds of our children. This must be reversed, not merely stooped. State legislators have the ability to do this by way of cutting funding including many federal funding streams that go thou the State to programs and schools that allow leftist on campus.
We have to furthermore start channeling those funds exclusively to programs surrounding the old teachings of state’s rights view of Constitutional law. and the theories of decentralized small Government.
If republican legislators want to stay in power and have a lasting legacy this is what they must do, or the left will uses our indoctrinated kids to wipe us from history.
Starting with Judicial Reform Amendment:
“Section I
No court or tribunal shall deny inquiry into its jurisdiction or the authority under which it operates; any misrepresentation thereof shall result in the judge and all staff being vacated from their offices and charged with malfeasance. “
This would clearly give a judge authority to decide his own jurisdictional. What judge would bring this upon themselves and how many would carry it out against other judges? Adding in their staff and the judge would justify their amoral usurpation on the ground that they are ‘saving others’ in their own minds.
“Section II
The Constitution may always be used as a defense, the interpretation presented may or may not be correct but the court cannot prevent it from being cited. “
This is already the case, and as is already the case the Judge will simply decide he has properly decided the Constitution already. End result no effect to this article. Remember how even politicians uses to get ‘offended’ when you questioned their understanding of the Constitution? In their mind they are infallible.
“Section III
The Fifth amendment’s prohibition against being tried for the same offence twice is hereby recognized as applying to the offense and not the jurisdiction; therefore no federal case shall be made against a person for actions already tried by the state or subdivision thereof. However, nothing is to prevent a State from trying persons for Treason against their own sovereignty. “
I can’t disagree with the wording of this Clause, however I would point out, that the Federal case general tries the state trial rather than retrying the case itself. You should however clearly specify that they are not of authority to retry a case placing a man’s life or liberty at stake without their consent. In General however there is limited to no effect of this amendment due to the legal technicality of the court on the subject being tried which decides innocence or guilt. Most likely a cunning lawyer would claim the court trial biased in some difficult to define and/or impossible to test for way requiring a retrial of the court methods.
“Section IV
The Sixth amendment’s guarantee of a speedy trial is hereby recognized: for every week after the six months from the start of the trial the accused shall be paid the national average wage for one week’s pay, this payment shall be the responsibility and liability of the officers of the court. “
While im sure the officers of the court would not care, perhaps legislators might appoint more of them to avoid paying the accused. I can also see many people getting themselves accused a crime only to stonewall a trial in hopes for easy money. I don’t see how this will have the effect you desire. The court is paid to hold court, just as lawyers are paid to work cases. We the accused and the taxpayer foot their bills whatever it is. They have no vested interest in either brevity or justice otherwise. I would say this particular clause would only result in more courts, and court abuse.
“Section V
The Eighth amendment is hereby recognized as preventing excessively long imprisonment: no term of imprisonment shall exceed ten years. The Eighth amendment shall not be held to prevent capital punishment. “
Whatever happens to life in prison? Is the cost of a taking anther life or being a repeated psycho path a mere 10 years at most? This Section most defiantly should never be permitted.
Cruel and unusual should simply be defined in the way unusual is normally defined. namely nobody else has ever done it as punishment. Cruel is of course a poorly choose word that clearly is subject to a persons bendable discretion. To some people merely making a person drink water and eat food is cruel, while its very easy indeed for many others to see mere imprisonment itself as cruel.
“Section VI
The Second amendment is hereby recognized: no court shall bar a juror from wearing his weapon, as he is a free man.”
This like the other causes are not specific enough in their application only to Washington’s courts. That said it is reasonable to disarm people actively in-trial, just as it is not unreasonable to assume they may act unjustly upon conviction or innocent they strongly disagree with. This is a foolish clause.
“Section VII
The text of the Constitution should not be arbitrarily reinterpreted and, as the judiciary does such with its doctrine of incorporation, the Fourteenth amendment is hereby repealed.”
This section I agree with, althou i must point out the first clause will mean nonthing, as no court is going to say it’s ‘judgement’ are arbitrary even today.
The 2nd clause ending incorporation is thus the only meaningful part of this Section.. Althou it does nothing to prevent other impositions in time as to effectively render this prohibition as meaningless as the 11th amendment’s.
Unfourntatly we cannot plan for the creative usurpation of future generations, no matter what we say their corruption will drive them towards finding ways around it and achieving still more power.
How would this give the judge such authority? What is says is that one may ask by what authority?
or what is your jurisdiction?
to a court, any misrepresentation then "clears the court". (i.e. everybody's fired.)
>>“The Constitution may always be used as a defense, the interpretation presented may or may not be correct but the court cannot prevent it from being cited.“
>
> This is already the case, and as is already the case the Judge will simply decide he has properly decided the Constitution already. End result no effect to this article. Remember how even politicians uses to get ‘offended’ when you questioned their understanding of the Constitution? In their mind they are infallible.
This is reaffirming that the jury has the ability to hear the case on first principles merits -- namely to judge not only the facts, but the law as well. (Jury nullification.)
>> The Fifth amendment’s prohibition against being tried for the same offence twice is hereby recognized as applying to the offense and not the jurisdiction; therefore no federal case shall be made against a person for actions already tried by the state or subdivision thereof. However, nothing is to prevent a State from trying persons for Treason against their own sovereignty.“
>
> I can’t disagree with the wording of this Clause, however I would point out, that the Federal case general tries the state trial rather than retrying the case itself. You should however clearly specify that they are not of authority to retry a case placing a man’s life or liberty at stake without their consent. In General however there is limited to no effect of this amendment due to the legal technicality of the court on the subject being tried which decides innocence or guilt. Most likely a cunning lawyer would claim the court trial biased in some difficult to define and/or impossible to test for way requiring a retrial of the court methods.
Hm, good points; I'll have to mull over reformulation.
>> The Sixth amendment’s guarantee of a speedy trial is hereby recognized: for every week after the six months from the start of the trial the accused shall be paid the national average wage for one week’s pay, this payment shall be the responsibility and liability of the officers of the court. “
>
> While im sure the officers of the court would not care, perhaps legislators might appoint more of them to avoid paying the accused. I can also see many people getting themselves accused a crime only to stonewall a trial in hopes for easy money. I don’t see how this will have the effect you desire. The court is paid to hold court, just as lawyers are paid to work cases. We the accused and the taxpayer foot their bills whatever it is. They have no vested interest in either brevity or justice otherwise. I would say this particular clause would only result in more courts, and court abuse.
Hm, perhaps; though I cannot think of any better way to ensure a speedy trial than making the judge/lawyers responsible for some financial income to the accused, especially as it is common that the accused has his assets frozen/seized and has the burden of appearing before the court imposed on him. (Thus limiting his income if he works for another, a longstanding trial may also be injurious when looking for a job, and certainly is when the accused is a small business owner.) — Can you think of any way to force the sixth amendment's guarantee of a speedy trial?
>> The Eighth amendment is hereby recognized as preventing excessively long imprisonment: no term of imprisonment shall exceed ten years. The Eighth amendment shall not be held to prevent capital punishment. “
>
Whatever happens to life in prison? Is the cost of a taking anther life or being a repeated psycho path a mere 10 years at most? This Section most defiantly should never be permitted. Cruel and unusual should simply be defined in the way unusual is normally defined. namely nobody else has ever done it as punishment. Cruel is of course a poorly choose word that clearly is subject to a persons bendable discretion. To some people merely making a person drink water and eat food is cruel, while its very easy indeed for many others to see mere imprisonment itself as cruel.
Life in prison is excessively cruel; it robs a man of his dignity. Likewise, excessive sentence lengths, but they force others [taxpayers in this case] to see to his care (albeit indirectly). — What I'm saying is that long prison terms, including life, are cruel [though usual]. Death is simpler, quicker, does not pretend to be something its not.
>> The Second amendment is hereby recognized: no court shall bar a juror from wearing his weapon, as he is a free man.” >
> This like the other causes are not specific enough in their application only to Washington’s courts. That said it is reasonable to disarm people actively in-trial, just as it is not unreasonable to assume they may act unjustly upon conviction or innocent they strongly disagree with. This is a foolish clause.
Um, it's jurors here, not the accused.
I would argue that this should apply to State courts as well — to prohibit the juror who (a) must be present [under penalty of law], (b) has not been accused of any crime, and (c) literally holds the power of life and death in his hands [for capital cases] is absurd and plainly asserts the government's primacy over the citizen/juror's in the courtroom.
>> The text of the Constitution should not be arbitrarily reinterpreted and, as the judiciary does such with its doctrine of incorporation, the Fourteenth amendment is hereby repealed.
>
This section I agree with, althou i must point out the first clause will mean nonthing, as no court is going to say it’s ‘judgement’ are arbitrary even today.
The first clause is more of a reasoning for the last part's enaction, and setting up both precedent and justification to slap the courts down when they act up.
Unfourntatly we cannot plan for the creative usurpation of future generations, no matter what we say their corruption will drive them towards finding ways around it and achieving still more power.
We can make things harder for the creative usurpation
though, and we can end current usurpation.
I notice you said nothing about the grand jury amendment; what did you think of that?
“How would this give the judge such authority? What is says is that one may ask by what authority? or what is your jurisdiction? to a court, any misrepresentation then “clears the court”. (i.e. everybody’s fired.)”
Who beyond a judge is going to read the law and produce their jurisdiction? Furthermore what Judge is going to take a case they don’t believe they have jurisdictional on in the first place as broad as their own estimation of their jurisdiction may be?
Your essentially just asking them to tell you that they think this is their jurisdiction unless you seginsate a 3rd party of conflicting or impartial interest to decide such a matter.
In the case of a Federal judge Id probably pick a state judge. In the case of disputes between states I’d pick a federal judge to make the jurisdiction choice alone. Then let whatever state he chooses carry out the trial.
“This is reaffirming that the jury has the ability to hear the case on first principles merits — namely to judge not only the facts, but the law as well. (Jury nullification.)”
A man is innocent if the law in question is itself unauthorized under the constitution. I would more clearly state that juries shall not be hindered in their interpenetration of the law. It avoids the messy implication that Judges define the Constitution.
“Can you think of any way to force the sixth amendment’s guarantee of a speedy trial?”
You can always throw out a case that takes too long, but you would probably have to require the legislator to define a schedule of how long is too long for each kind of crime/case.
“Life in prison is excessively cruel; it robs a man of his dignity.”
A man who commits a crime has no dignity, nor do a great many other men. The point is Dignity is the last thing a legitimate judge should be concerned with. As for being excessively cruel I find that almost as laughable as the 2nd remark, we imprison people for life all the time.
Whether or not it is worse than Death however is a matter of opinion that state legislators are going to have to decide. Many people and cultures will of course find a life in prison to be far worse than death, just as others dread death more. I personalty think Life in prison and isolation is probably worse. The matter of just taxpayer burden for the accused is also something legislators are going to have to decide from time to time as the cost of food, housing, and imprisonment changes based upon availability of resources. Still other punishments will become available as technology changes, and legislators will have to deal with that as well.
“Um, it’s jurors here, not the accused.
I would argue that this should apply to State courts as well — to prohibit the juror who (a) must be present [under penalty of law], (b) has not been accused of any crime, and (c) literally holds the power of life and death in his hands [for capital cases] is absurd and plainly asserts the government’s primacy over the citizen/juror’s in the courtroom.”
Suppose a juror becomes outraged that one or more of his fellow jurors let off a visisus murder in his mind, and decide in the passion of the moment to take out the murder himself? I can’t even claim to have not been enraged by such injustices, particularly where I see clear corruption is involved. Even jurors can become overcome with passion in the long drawn out passion of issues that tend to go to trial. I would let them have their guns outside of the court house but not inside that way If a juror is going to take justice into his own hands let him at least wait until both parties have had time to cool off while leaving the court house. You are of course right in that this should be left as a policy issue, states must make their own rules, I even have half an inclination as to ask that Washington Observe the rules of the State court in which they are located.
Congressmen really need to focus on foreign policy questions, nether they nor their courts should be concerned with carrying out domestic trials. The people voice their will on theses matters of personal liberty and justice in State elections, and with their feet.
“I notice you said nothing about the grand jury amendment; what did you think of that?”
I have not had time to analyze it yet.
Federalist/Anti-Federalist ping. An interesting dissertation on the 11th Amendment.
That's some messed up logic. The supreme or sovereign power WAS retained by citizens themselves, but was exercised through their proxies...or “artificial persons” known as States.
Not to mention there is nothing in the Constitution or the first Judiciary Act that allows for a person to sue their State, so I don't see why it would allow them to sue another State either. Not in federal court, anyway.
Now I know why we have the 11th Amendment...thanks!
Unfortunately, there is evidence that you basically had to attend the Constitutional Convention and follow the discussions in order to interpret many parts of the Constitution as the Founding States had intended for it to be understood.
For example, the 14th Congress during the Madison presidency passed a bill to appropriate funds to build roads and canals, probably arguing the “Necessary and Proper” clause (1.8.18) to support the bill. But Madison vetoed the bill, noting that regardless that commerce and defense would benefit from roads and canals, that the only related thing that the Founding States had actually authorized Congress to establish was mail roads (1.8.7).
Veto of federal public works bill
Also, when the 14th Amendment (14A) was drafted and ratified, some federal representatives questioned the need for 14A since they had understood that the states were already required to respect the Constitution’s privileges and immunities, most of these rights enumerated in the Bill of Rights (BoR). But the truth of the matter is that that the Supreme Court had clarified decades earlier in Barron v. Baltimore that the Founding States had decided that the states were not obligated to respect the BoR. “
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. [emphasis added] They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States.”
…
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.” — Barron v. Baltimore, 1833 .
So I will argue that the Constitution was made before its time, the Constitution surviving mainly in the form of gossip and rumors, even among many patriot lawmakers. The Constitution essentially had to wait until after the post FDR electronics age before many citizens could take it and related historical materials out of their dusty boxes and get a first-time bird’s-eye view of how the Founding States had actually intended for the Constitution to be interpreted.
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