Posted on 08/02/2009 7:05:19 AM PDT by Rurudyne
Please consider joining with us and signing our Constitutional Restoration Petition that focuses on just this issue and spread it around. We are going to deliver it and the signatures to Washingotn DC, direct to Congress.
A PETITION ON FACEBOOK FOR CONSTITUTIONAL RESTORATION
Also, make sure you read the quotes on the following link from Ezekiel Emanuel, the architect of Obama Care and his Chief Health Care advisor.
They are sick, they are twisted, and they are dangerous.
EZEKIEL EMANUEL (MENGLE) AND THE OBAMA-CARE FINAL SOLUTION (Must Read)
Ah, even my “long distance” friends are shorter distance than many here. (I’m no sniper... I blame the horrible eyes.)
“…I'm looking for feedback and criticism (as well a comments in general) in order to better express these ideas.”
Ok, you asked for it. I did some editing of your piece, striking out some things and making additions/changes in blue, if that works out.
To paraphrase the author Harlan Ellison on editors: “They take your baby, rip an arm off, re-attach it in the middle of the chest, and hand it back to you while telling you it’s a better baby.”
I hope I have not done that. My intent was to help you with your piece, not to take your work and turn it into mine.
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Do We the People really establish our government or is the government 'self-establishing'? Do We the People really extend the Federal Government beyond its original limits as established by We the People or is it self-extending?
Let me explain the basis for the question.
The 10th Amendment is an interesting article because of more than just the fact that it advances the idea of delegated powers. Certainly it reserves any powers not so delegated to the several States — excepting those few expressly forbidden to the States in the federal Constitution. Most of the time when people talk about the 10th Amendment this is as far as it goes where their presented logics are concerned and they essentially fail to address the full aspect of the article: that powers are reserved to the people too.
I have neglected this aspect of the article in the past; however, there comes a time when you get tired of presenting the same old 'States Rights' arguments ad infinitum. At such a time I finally looked to this often neglected aspect of the text and found something ... important.
Something that raises the question of how governments are established among men. (I’d strike that sentence because I don’t really see that it is raised.)
Consider for a moment what it means to say that powers are reserved to the people in a document that delegates powers to a Government.
Clearly, in light of Article 5, these powers would be those that the people have not yet incorporated — or delegated — to the federal government. The idea of unincorporated powers strikes at goes to the very heart of the origin of governing authority in the United States.
I should point out that the Framers were very comfortable with the idea of unalienable rights established in natural law by a Creator God — no matter if they were among those infamously hostile to Scriptural Christianity or else equally partisans of the Gospels. As such, and in keeping with the idea advanced inherent in the Declaration of Independence that the legislative power may at times even revert to the people when it is sorely neglected or abused, we can see how the insistence that powers are indeed reserved to the people was hardly a new idea.
Simply, an unincorporated power is that which the people have not lawfully delegated to a government according to proper procedures as set forth in Law. Simply, an unincorporated power is a power of We the People which we have not delegated to the Federal Government.
This is why the 10th Amendment, though generally the logical grammar in accordance with the style of composition for the whole of the Constitution to which it was amended, would have likely appeared in Article 5 had it been there at the beginning (i.e. it speaks to the source of any powers that future amendments may delegate to the federal).
Yet the 10th and its reservation of powers to the people also has relevance to the several States for it also speaks to the Framer's expectations concerning how the States too came by their powers. So the formula should be seen as a general principals in underlying American governance:
Tthat the people retain all powers they do not lawfully delegate to some government.
Also, that the act of delegating a power to one government, say the federal for national defense or else to a State for local law enforcement, says nothing about if whether such grants of power are general to all applicable governments (under the 10th Amendment they expressly are not. Powers not delegated to the federal are retained by others besides it).
So when it is said that We the Ppeople established their Federal Ggovernment it means exactly this: they We the People delegated Powers to the Government it through some set procedure that is deemed lawful and otherwise retained all unincorporated powers to themselves and the any future delegation of any retained unincorporated power must also be through set procedure to be deemed lawful.
Here I will turn to the words of Chief Justice John Marshall from Marbury v Madison for further clarification of this principal:
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.
The clarification I sought was this: the anticipation that the establishment of a Government was in and of itself a permanent gesture that affects not merely the current generation but also all future generations.
Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.
This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the Ffederal Government (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.
So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves — unincorporated.
This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.
Now comes the rub, and please bear with me as I again turn to Marbury:
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
Consider the highlighted text in light of this essay.
What is happening when the legislature enacts some law for which it has no delegated authority?
It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.
Can the Congress lawfully do this anyway? Is it not an elected body representing the people?
If a legislature, or an administrator or a jurist for that matter, can claim by right of representation as a representative of the people, the ability to further delegate powers on account of statutes but so delegate not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.
Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the Ffederal Government at the time.
Or even possessed by a State when dealing with electing a State representative.
So when a the Federal Ggovernment takes upon itself to alter its powers it is in fact a self-establishing extending entity though it was not established as such.
Thus we see the truth behind what Chief Justice Marshall wrote: "if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable."
The illimitable power is precisely the power of any government that is self-establishing extending and which has no need of some extraordinary procedure such as an amendment process.
Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.
So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.
Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many.
Sorry, the “blue” part didn’t work out. I don’t know why.
“(States, however, would not be so constrained.)”
Do you mean they would not be so constrained by the suggested amendment or that they would not be so constrained at all?
If the federal government was forbidden to use EFT, Check, and Credit Card would not everyone it deals with be so constrained when dealing with them? The military could not be paid with EFT, Check or Credit Card. The builders of planes, tanks, aircraft carriers etc could not be paid with EFT, Check or Credit Card. Revenue for the purpose of paying the military could not be rendered with EFT, Check or Credit Card.
“Each State would send two delegates, chosen by the State, not by a popular vote, unless the State agreed to that.”
I don’t see a reason to trust the majority of the States to chose delegates who would work for a conclusion to such a convention that would be acceptable to most of the folks on this form.
I like “self-extending” lots.
Thanks for the critique!
>>“(States, however, would not be so constrained.)”
>
>Do you mean they would not be so constrained by the suggested amendment or that they would not be so constrained at all?
By the amendment, obviously.
>If the federal government was forbidden to use EFT, Check, and Credit Card would not everyone it deals with be so constrained when dealing with them?
Indeed so. All federal employees would have to be paid in cash and in person. There would be, of course, control-sheets and people would have to sign for the monies at every step of the chain.
>The military could not be paid with EFT, Check or Credit Card.
I don’t see a problem with that; the Constitution is pretty anti-standing-army. And, again, states could pick up the slack w/ national guard & militia.
>The builders of planes, tanks, aircraft carriers etc could not be paid with EFT, Check or Credit Card.
Right. I would be a major inconvenience for the federal government AND anyone dealing with them; IOW, it would help constrain the federal government’s size by making it inconvenient to deal with them.
>Revenue for the purpose of paying the military could not be rendered with EFT, Check or Credit Card.
Indeed, and that is part of the reason for suggesting it. The other part is that if it is physical money, and remember that it’s supposed to be silver or gold coinage which is intrinsically valuable, then it cannot spend non-existent monies [increasing the debt].
Two delegates from each State is the proximate form for a constitutional convention. The Philadelphia convention had an average of 4-5 delegates from each State except Rhode Island, which sent none. A handful of these delegates refused to sign the final draft of the convention.
But today, with 50 States, the US Senate model, but without the sitting senators, would be the easiest to accomplish. The federal government would have no hand in the convention, as an accepted principle.
The most contentious issue would be how the States determined who their delegates would be. In some, they would be appointed by the governor. In some, by appointment of the State legislature. Other State legislatures would call a popular vote for delegates.
However, while theoretically these delegates are free agents, practically speaking, they would have to be instructed before they convened as to what their State demanded, and what their State would refuse to accept.
In convention, the delegates would almost have to be sequestered, because every villain on the planet, both foreign and domestic, would do anything to become involved in the process.
After a final draft of the constitutional changes had been made, it would then be returned to the individual States for an up or down vote, and this would require a 3/4ths majority of States to agree, or else the convention could not retire, unless it gave up and quit.
This would almost guarantee a conservative outcome. The sitting US government would be a caretaker after the new constitution was agreed to, and there would have to be a process for the changes made, which could last up to six years, the regular rotation of the US Senate.
Right now, the primary emphasis of a CC would be twofold. First to reduce federal power and increase State power, and second, to reset the national economy, likely by renouncing the national debt and eliminating direct federal intervention with the people. This is, to put the States back in between the federal government and the people.
All federal taxes would be limited to payments from the States, and import duties. All federal monies for individuals would go to the States, not to individuals, even federal pensions.
And those parts of the federal government not authorized by the constitution would be dissolved.
It would! Thank you for the idea; I'm actually writing a book right now which deals with that idea, philosophically speaking.
Pop me your name on the e-mail so I can give you credit for the title should I use it and get the book published.
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