Posted on 09/30/2003 12:19:22 PM PDT by sheltonmac
By the way, have you decided yet on the equally relevant question, who is buried in Grant's tomb?
You may divert, spew, and blather all you want. 11 DOES NOT EQUAL 13.
To the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled:
We are induced to hope that we shall not be altogether considered as foreigners having no particular affinity or connection with the United States; but that trade and commerce, upon which the properity of this State much depends, will be preservved as free and open between this State and the United States, as our different situations at present can possibly admit....
We feel ourselves attached by the strongest ties of friendship, kindred, and interest, to our sister States; and we can not, without the greatest reluctance, look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us.
I am, at the request and in behalf of the General Assembly, your most obedient, humble servant.
(Signed) John Collins, Governor.
His Excellency, the President of the United States.
[American State Papers, Vol I, Miscellaneous.]
SOURCE: The Rise and Fall of the Confederate Government, Jefferson Davis, Vol I, pp. 112-3.
[nolu chan] I know how to use a common dictionary. I know when not to use a common dictionary. When construing terms used in a formal legal document, I use a law dictionary.
[CapnR] "Videlicet" is not an exclusively legal term.
Many terms are not exclusively legal terms. However, when appearing in a formal written contract or agreement, they may be construed in a specific legal sense. Sometimes a common dictionary will work and sometimes it won't. If you prefer to construe legal documents with Webster's Collegiate Dictionary, knock yourself out.
[CapnR] On the contrary. You know as well as I do that treaties are full of "reservations" and "understandings."
VIENNA CONVENTION ON THE LAW OF TREATIES
BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS
OR BETWEEN INTERNATIONAL ORGANIZATIONS
(21 March 1986)
Use of terms
1. For the purposes of the present Convention:
(a) "treaty" means an international agreement governed by international law and concluded in written form:
* * *
(d) "reservation" means a unilateral statement, however phrased or named, made by a State or by an international organization when signing, ratifying, formally confirming, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State or to that organization;
Article 23
Procedure regarding reservations
1. A reservation, an express acceptance of a reservation and an objection to a reservation must be formulated in writing and communicated to the contracting States and contracting organizations and other States and international organizations entitled to become parties to the treaty.
2. If formulated when signing the treaty subject to ratification, act of formal confirmation, acceptance or approval, a reservation must be formally confirmed by the reserving State or international organization when expressing its consent to be bound by the treaty. In such a case the reservation shall be considered as having been made on the date of its confirmation.
3. An express acceptance of, or an objection to, a reservation made previously to confirmation of the reservation does not itself require confirmation.
The following is provided just for your reading pleasure.
Contracts - Parol Evidence Rule
When the terms of a contract have been embodied in a writing to which both parties have assented as the definite and complete statement thereof, parol evidence of antecedent agreements, negotiations, and understandings is not admissible for the purpose of varying or contradicting the contract so embodied. This is an attempted statement of the "parol evidence rule." the writing herein referred to has been described by Wigmore as an "integration", a term that has come into common use; but it is still unfamiliar enough to act as a "stop-light," diverting the attention to the phrase itself and away from the subject matter.Although always referred to as the Parol Evidence Rule, it is not a rule as to the admissibility of testimony; instead, it is a rule of substantive law determining the legal operation of the written "integration " above described.
Whether any specific written document has been assented to by the parties as the complete and accurate "integration" of the terms of their contract is an ordinary question of fact.
SOURCE: Arthur L. Corbin, Corbin on Contracts, One Volume Edition, pp. 534-5.
The parties to a contract often reduce to writing part or all of their agreement, following negotiations during which they have given assurances, made promises, and reached understandings. They do this in order to provide trustworthy evidence of the fact and terms of their agreement and to avoid reliance on uncertain memory. However, should litigation ensue, one party may seek to introduce evidence of the earlier negotiations in an effort to show that the terms of the agreement are other than as shown on the face of the writing. The party will be met with a rule known as the "parol evidence rule," which may bar the use of such extrinsic evidence to contradict and perhaps even to supplement the writing.Gianni v. R. Russel & Co. is a classic example of the rule in operation. Frank Gianni sold tobacco, fruit, candy, and soft drinks in a Pittsburgh office building. when the building was sold, Gianni had discussions with the new owner's rental agent and signed a three-year lease that provided that Gianni could "use the premises only for the sale of fruit, candy [and] soda water" but that he was "not allowed to sell tobacco." Later, when a drugstore leased space in the building and began to sell soft drinks, Gianni sued the owner for breach of an alleged promise that Gianni was to have the exclusive right to sell soft drinks in the building. Gianni sought to show that before he had signed the lease the rental agent had made this promise in return for gianni's promises not to sell tobacco and to pay an increased rent. The Supreme court of Pennsylvania held that it was error to admit testimony to this effect. "As the written lease is the complete contract of the parties and since it embraces the field of the alleged oral contract, evidence of the latter is inadmissible under the parol evidence rule. Even if the agent had in fact made the promise, the rule barred Gianni from using evidence of the negotiations to prove it.
The parol evidence rule is universally recognized and is embodied in the Uniform Commercial Code in UCC2-2002, a statutory formula applicable to contracts for the sale of goods.
SOURCE: E. Allan Farnsworth, Contracts, Second Edition, p. 465-6
Mitchill v. Lath
Court of appeals of New YorK, 1928.
247 N.Y. 377, 160 N.E. 646* * *
This requires a discussion of the parol evidence rule -- a rule of law which defines the limits of the contract to be cosntrued. (Glackin v. Bennett, 226 Mass. 316) It is more than a rule of evidence, and oral testimony, even if admitted, will not control the written contract (O'Malley v. Grady, 222 Mass. 202), unless admitted without objection. (Brady v. Nally, 151 N.Y. 258.)
SOURCE: Edward J. Murphy and Richard E. Speidel, Studies in Contract Law, Fourth Edition, p. 755.
(It’s amazing how people respond to what is simply one aspect of Thomas Jefferson’s political philosophy... ;>)
As you have known for over 20 years, I am a strict Constitutional constructionist...
Allow me to summarize your previous post:
”Your quote from Justice Scalia is quite correct. There in not one word in the Constitution about judicial review... The Supremes are the final word when it comes to interpretation of the law.”
To suggest in one breath that the Constitution nowhere grants the high court the power to ‘say what the Constitution means,’ and in the next that the court possesses that power, hardly suggests that you are a “strict Constitutional constructionist.” Your comments “about civilizations... working out solutions to problems...” might indicate that you are more of a ‘traditionalist.’
;>)
... and distrust judicial activism.
Fine. Perhaps you can answer two simple questions. The first was posed almost two centuries ago by John Taylor, a prominent Jeffersonian republican:
Is the Constitution supreme over the court, or is the court supreme over the Constitution?
You can’t have it both ways – but that is exactly the position advocated by Mr. Chief Justice Marshall, in Marbury v. Madison (IIRC). Secondly:
If “the Supremes are the final word,” what recourse is there when that “final word” is “palpably” unconstitutional? Mr. Jefferson addressed the question quite reasonably:
”... [T]he several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
You seem to have rejected Mr. Jefferson’s position. What would you suggest in its place? Obey orders ‘like a good German?’ Attempt to replace the offending jurists, and get another ‘divine interpretation’ from a new group of ‘judicial oracles?’ Revolution? Please be specific.
Salmon Chase's majority opinion in Texas vs White wasn't activism in the way that Roe vs Wade was. Chase, et al didn't create new rights or derive new rights the way the Roe court did. Chase reviewed that basis upon which the country was founded, the history of its governance, and the application of the Framer's intent, as best as they could determine it.
Poppycock. He ‘created’ a federal power to use armed force to maintain a “perpetual” union. The concept is nowhere mentioned in the Constitution, is completely contradicted by the ratification documents of several States, and would have prevented the adoption of the Constitution in the first place, if it had actually been a provision of the compact. He ignored documented, historical fact; and his attempt to ‘derive’ the power by ‘cherry picking’ language from the discarded Articles of Confederation is not far removed from the current court’s efforts to ‘derive’ authority from the laws and social attitudes of selected foreign nations.
If President A. Johnson or the Congress had been sufficiently offended by the decision, they could have taken action to neutralize it.
Would that be the same administration (which included Mr. Chase ;>) and ‘rump’ Congress that had just spent four years actually using armed force to maintain the union? By the way, I thought you said “[t]he Supremes are the final word when it comes to interpretation of the law.” Now you seem to suggest that “the final word” is not final – that it is subject to executive and congressional review...
;>)
In any judicial system, respecting precedent provides for equal justice and avoids anarchy.
I do indeed respect precedent. But I also recognize that judicial precedent is no substitute for a written Constitution – a distinction which seems to have been missed by many of the unionists here.
Just look at the 9th Circus. That court is a joke because it is full of liberal, activist judges who fail to respect precedent.
Picture those same judges on the high court – and tell us again that “[t]he Supremes are the final word when it comes to interpretation of the law.”
To do anything else would be to follow the primrose path to socialism and anarchy.
As Thomas Jefferson observed, to ignore a written Constitution, which established a federal government of limited powers, checked and balanced by the power of the State governments, in favor of a national government acting as the “exclusive or final judge of the extent of the powers delegated to itself,” is a far more certain path to tyranny or anarchy...
;>)
You assert the accurate quotation of a 1789 letter signed by the Governor of Rhode Island, is less credible if the quote is provided by Jefferson Davis. The letter is the same, regardless of who quotes it. Your desperation is showing.
|LINK|
Greg Durand
America's Caesar
Chapter Seven
State Sovereignty and the Right of Secession
State of Rhode Island and Providence Plantations,
In General Assembly, September Session, 1789.
To the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled:
The critical situation in which the people of this State are placed engages us to make these assurances, on their behalf, of their attachment and friendship to their sister States, and of their disposition to cultivate mutual harmony and friendly intercourse. They know themselves to be a handful, comparatively viewed, and, although they now stand as it were alone, they have not separated themselves or departed from the principles of that Confederation, which was formed by the sister States in their struggle for freedom and in the hour of danger....
Our not having acceded to or adopted the new system of government formed and adopted by most of our sister States, we doubt not, has given uneasiness to them. That we have not seen our way clear to it, consistently with our idea of the principles upon which we all embarked together, has also given pain to us. We have not doubted that we might thereby avoid present difficulties, but we have apprehended future mischief....
Can it be thought strange that, with these impressions, they should wait to see the proposed system organized and in operation? -- to see what further checks and securities would be agreed to and established by way of amendments, before they could adopt it as a constitution of government for themselves and their posterity?...
We are induced to hope that we shall not be altogether considered as foreigners having no particular affinity or connection with the United States; but that trade and commerce, upon which the prosperity of this State much depends, will be preserved as free and open between this State and the United States, as our different situations at present can possibly admit....
We feel ourselves attached by the strongest ties of friendship, kindred, and interest, to our sister States; and we can not, without the greatest reluctance, look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us.
I am, at the request and in behalf of the General Assembly, your most obedient, humble servant.
John Collins, Governor
The letter is FROM:
State of Rhode Island and Providence Plantations,
In General Assembly, September Session, 1789.
The letter is TO:
To the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled:
This letter is the product of political posturing and supplication. It only represents Collins perspective. What was the response by the new Congress: "We'll hold your seats open until you get your act together." Eventually, they did.
Since you posted the letter several times on this thread, you must have some point to make. What is it?
Not exactly a recapitulation of what I said, in context, however, I can work with it.
There are "expressed powers" in the Constitution, and there are "implied powers." The right of judicial review is an implied power. Marbury vs Madison (1803) established that implied principle as a proper "check and balance" upon the excesses of the Legislative and Executive branches of Government. It has been two hundred years since that ruling, and the principle of judicial review in thoroughly ingrained into American jurisprudence. There is no sense in arguing that the Court does not have the power to interpret; even Justice Scalia has participated in precedent-setting ruling.
But getting to possibly a more important point, you stated:
"I do indeed respect precedent. But I also recognize that judicial precedent is no substitute for a written Constitution – a distinction which seems to have been missed by many of the unionists here."
It was James Madison, in the Federalist Papers, who stated that it was imprudent to attempt to "confine a government to the exercise of express powers." As Prof Eugene Hickok writes in The Bill of Rights: Original Meaning and Current Understanding, "(I)t was necessary to allow for "powers of implication," otherwise the Constitution would have to descend into minutiae."
Indeed, Madison's original draft of the "Ninth Proposition" (which became the Tenth Amendment) read, "The powers not delegated by the constitution, nor prohibited by it to the States, are reserved to the States respectively." Thomas Tucker of South Carolina proposed a change in language, to read, "All powers being derived from the people, the powers not expressly delegated by the constitution, nor prohibited by it to the States, are reserved to the States respectively." This change was rejected, as did a similar proposal by Elbridge Gerry a week later. Clearly, the 1st Congress recognized the difference between "a (federal) government of delegated powers and a government of expressly delegated powers" (the latter being more restrictive).
Which all gets back to the original point. We really don't need Texas v White to recognize the illegality of secession. Secession was not contemplated by the Tenth Amendment, it was not allowed by the Tenth Amendment, nor was it implied by the Tenth Amendment. According to the provisions of Article VII, each State entered in to the Constitutional Union by ratification. (Rhode Island, for instance, because it has been for some unknown reason the point of contention on this thread, ratified the Constitution May 29, 1790, but did not ratify the Bill of Rights until June 7, 1790, a full six months after New Jersey ratiied the BOR, the first state to do so.) In doing so, they entered into a sacred compact. Notwithstanding any reservations or understandings the individual States may have expressed at the time of ratification, the contract of the Constitution is permanent until one or more of the parties breach it (and suffer the consequences), or until the parties to the contract agree to end it. Unless there is specific language dealing with the termination of a contract, in the contract, it is assumed that the contract is permanent.
When Chase wrote in Texas v White that there is is "no place for reconsideration, or revocation, except through revolution, or through the consent of the States," he harkens back to Article I, Section 10, paragraph 3. The Articles of Confederation provided for a weak central government, or perhaps more correctly, a "confederal" government, in the form of Congress. The AoC also provided for a "perpetual union." After eight years of government under the Articles, despite Americans' innate distrust of authority, the Framers realized that the form of government must be changed, and the great compromise from the Constitutional Convention was the creation of a stronger federal government, of limited power, but one that also denied the States powers granted to the national givernment. In changing the form of government, the Framers in no way anticipated a temporary, non-permanent, non-perpetual, or part-time Union.
Then it would be time to overthrow the government. I think Thomas Jefferson would approve.
You are lost in minutiae. Did the 11 states which had ratified by the time the United States assembled in Congress, under the Articles of Confederation, had fixed for Constitutional governance, toss the other two out of the Union? Of course not - they provided for them by reserving seats in the Congress until those errant states could get their acts together. They were not divorced. No state had seceded. Okay, the Governor of Rhode Island was feeling sorry for himself; big deal. Everything worked up.
Try and keep the ad hominem attacks to a minimum. You are publically embarassing yourself.
Is that right?
"(T)he proper function of the U.S. Constitution, as the Framers understood it, is to constitute a government that is controlled by the people but also controls them. In fact, it controls them through the very proscess of being controlled by them. It establishes popular sovereignty in that it is supposed 'to elicit reason from the people rather than impose it on them.' However, the eliciting is done by the creation of constitutional distance between the people and those who are chosen by the people - chosen to make decisions in the people's name and in their behalf."
"But notice this. The first word of the First Amendment is 'Congress.' Congress is the repository of popular sovereignty. And what comes after that word in the First Amendment? A stern denial of the people's right to make, through Congress, certain choices: 'Congress shall make no law ...'"
"The point of representative government is that the people do not decide the issues, they decise who shall decide."
George Will, Restoration: Congress, Term Limits, and the Recovery of Deliberative Democracy
[CapnR #1423] Rhode Island and North Carolina continued to participate in the national government with the full knowledge that 11 other states had ratified a new Constitution and were reorganizing the national government on that basis. I would be interested to find out what their representatives had to say about this in the timeframe of 1788-1789.
I do not believe it is possible to simplify it further. Apparently you lack sufficient intellect to understand. The eleven United States. The ELEVEN United States. The ELEVEN United States. The ELEVEN United States. The ELEVEN United States.
To the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled:
Following the same logic, the opinion in Plessey v. Ferguson must have had the force of law. Why did it NOT trump the argument of Thurgood Marshall in Brown v. Board of Education?
[CapnR to Gianni #1426] Chief Justice Chase did not alter one word of the Constitution. He ruled that the original intent of the framers was that the Union was paramount and that unilateral secession was, is, and will remain illegal.
According to CapnR, Salmon P. Chase not only rendered an opinion, he said it cannot be challenged and will remain the law for all time to come.
Let's apply that logic elsewhere. Pursuant to Roe v. Wade, restriction of abortion will remain illegal.
If the court in Plessey had only said its opinion was, is, and will remain the law, separate but [un]equal would remain the unchallenged, and unchallengeable law of the land.
I can understand why you identify with 5 year olds. I will answer a simple question you are unable to answer. Nobody is buried in Grant's tomb.
The Supreme Court on the status of the states before the Constitution:
As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States, anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true.
SOURCE: U.S. Supreme Court, GIBBONS v. OGDEN, 22 U.S. 1 (1824)
Opinion by Chief Justice John Marshall
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