"That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government and in that character, they have no other. America has chosen to be, in many respects, and in many purposes, a nation; and for all these purposes, her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void. These states are constituent parts of the United States; they are members of one great empiure--for some purposes sovereign, for some purposes subordinate."
--Chief Justice John Marshall, writing the majority opinion, Cohens v. Virginia 1821
You've quoted Justice Story on occasion.
From a newsgroup:
"Although the preamble is not a source of power for any department of the Federal Government, 1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.
2 ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?'' 3
Footnotes
1 Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).
2 E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States,
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819) Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 471 (1793); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891).
Yes, cherry picking.
Will you condemn Jefferson Davis for saying the same things as Justice Story?
The Confederate Constitution, he [Davis] pointed out to [Governor] Brown, gave Congress the power "to raise and support armies" and to "provide for the common defense." It also contained another clause (likewise copied from the U.S. Constitution) empowering Congress to make all laws "necessary and proper for carrying into execution the foregoing powers." Brown had denied the constitutionality of conscription because the Constitution did not specifically authorize it. This was good Jeffersonian doctrine, sanctified by generations of southern strict constructionists. But in Hamiltonian language, Davis insisted that the "necessary and proper" clause legitimized conscription. No one could doubt the necessity "when our very existence is threatened by armies vastly superior in numbers." Therefore "the true and only test is to enquire whether the law is intended and calculated to carry out the object...if the answer be in the affirmative, the law is constitutional."
--Battle Cry of Freedom, James McPherson P.433
You've seen this before; I don't recall a single word of condemnation of Davis by you. I don't expect one now. After all, Davis was a slave holder. That gives him a free pass among confederate apologists.
Walt
1. Davis may get a pass depite the fact that he was a slaveholder, not because he was a slaveholder. I have heard no one defend Davis' slaveholding. I have heard people agree with his ideas on the limitations of Federal power, but this is a separate issue from slaveholding. If we are going to denigrate all historical figures that did something wrong, we will be free of all historical figures and we run the risk of throwing the baby out with the bath water. To the day he died, I believe Davis believed in the inherent inferiority of black people (and I condemn him for that), but I still admire his efforts to oppose the Federal usurpation.
2. The issue of the centralization of power in the Confederacy was not an issue for any northerner. This was a debate within the Confederacy. Since Lincoln was claiming to be the government of all who lived in the area of the US as of 1860, the degree of centralization of the Federal government was an issue between all whom Lincoln claimed to rule. More to the point, the "common defense" argument is one thing, but both the US and CS Constitutions task Congress "to raise and support Armies," so Governor Brown was on shaky ground here. Most Federal usurpations before and since The Late Unpleasantness have come from the "necessary and proper" clause of Article I, Section 8, maybe the most abused portion of our Coinstitution. Does Congress really have a legitimate role in dictating how much water goes down the toilet with each flush? Is this really necessary and proper?
Hope this helps.
Respectfully,
D J White
“Many?” “Most?” Pointless generalities, of which you whole-heartedly approve simply because they issue from Mr. Justice Marshall. How touching...
“The constitution and laws of a state, so far as they are repugnant to the constitution and laws of of the United States are absolutely void.”
As I observed previously, the Tenth Amendment is part of the United States Constitution, not any State constitution. All you have done is push forward another ‘straw man’ argument.
“These states are constituent parts of the United States; they are members of one great empiure...”
Ah, yes –Mr. Justice Marshall, the unabashed advocate of ‘empire.’ For your further edification (since you repeatedly quote Mr. Justice Marshall), allow me to quote Mr. Justice Holmes (with my own clarifications in brackets ;>), who stated that he could not “separate John Marshall from the fortunate [for the advocates of empire] circumstance that the appointment of Chief Justice fell to [Mr. Unconstitutional ‘Alien & Sedition Acts’] John Adams, instead of to [Mr. ‘Declaration of Independence’ Thomas] Jefferson a month later, and so gave it to a Federalist [i.e., imperial elitist] and loose constructionist [i.e., someone who equates the written Constitution with toilet paper] to start the working [i.e., revision by select committee of government lawyers] of the Constitution...”
;>)
From a newsgroup...
(So, you quote ‘newsgroups’ but refuse to discuss factual, documented history. How impressive. Perhaps you should quote mentally unstable ‘street people’ as well: I’m sure they would support your argument whole-heartedly... ;>)
Although the preamble is not a source of power for any department of the Federal Government, 1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.
Only those who refuse to discuss history, including Mr. Madison’s comments in Federalist No. 39, the original version of the Preamble (which listed the people of each State separately), the ratification documents of the States, and the final version of Article VII, would refer to the Preamble as important “evidence of the origin, scope, and purpose of the Constitution.” That obviously includes you...
“No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence.”
“No one can doubt?” What a load of malarkey! It would appear that neither Mr. Justice Story nor you ever read Mr. Madison’s Report of 1800: Mr. Madison completely, inarguably, and in great detail refuted the ‘common-defense-clause-as-a-source-of-expanded-federal-power’ argument. You can find a link at my FR home page: read it. Better luck next time.
Yes, cherry picking.
Oh, very well – I admit to being more selective in my posts than you appear to be: I refuse to post anonymous nonsensical rubbish.
;>)
Will you condemn Jefferson Davis for saying the same things as Justice Story?
You are the one who quotes Mr. Davis, not I. By the way, are you quoting Davis the “traitor” (as you call him), or Davis the ‘statesman?’ The world wonders...
;>)
You've seen this before; I don't recall a single word of condemnation of Davis by you. I don't expect one now. After all, Davis was a slave holder. That gives him a free pass among confederate apologists.
Mr. Davis is relevant only to those who find no foundation for their arguments in the ratification debates, the secession of the ratifying States from so-called ‘perpetual union’ under the Articles, the ratification documents of the States, the written words of the Constitution, the preeminent legal references of the Republic’s early years, and the written words of the Founders. No wonder you depend on him...