The terms “Left” and “Right” came out of the French Revolution, and it’s dangerous to pigeonhole the Framers using those terms in their modern sense. In the politics of the era immediately following the Revolution, Hamilton, Washington and Adams would have been considered conservatives. Hamilton didn’t want Big Government because that would have required a tax burden that would have been bad for business. He wanted vigorous and effective government at the federal level, but he wanted it small. If you want to declare Hamilton a “crony capitalist”, that would be closer to the mark.
It says that to be the Law of the Land, treaties and the laws of Congress must be “IN PURSUANCE” of the Constitution.
Ah, but who arbitrates that issue and decides what is or is not constitutional? John Marshall, in Marbury v Madison, gave the Supreme Court the right to make that call. About a decade ago, there was an article in National Review that went into detail on Marshall’s opinion. It said that all branches of government have the right to determine constitutionality, not just the Court, and Marshall even opened the door a crack to the states having the authority to make that decision. But it was the Warren Court in 1958 that arrogated to the Supreme Court the exclusive authority to determine constitutionality. We may believe, as our own opinion, that something is or is not constitutional, but the Supreme Court’s opinion has the force of law, and the federal government will enforce that opinion even if it means bloodshed. Take a look at what Eisenhower did in 1957 at Little Rock to see what I mean.
Enumerated Power + the Necessary and Proper Clause from Article I, Section 8 = Laws Necessary to carry out Enumerated Power
That’s a good strict constructionist reading of the equation, but the loose constructionists have carried the day since 1790. We have centuries of case law and precedent upholding loose construction. This is unfortunate.
Suggests personal political welfare over America’s welfare.
I would suggest reading States’ Rights and the Union by Forrest McDonald and The Life of Andrew Jackson by Robert Remini. With Jackson, all politics was personal, and if he perceived you as an enemy, you were fit for the hangman. The only way to get back in his good graces was to fight a duel with him, take a bullet and survive. After that, he would say, “He’s a fine fellow!” He didn’t understand the difference between business and personal.
Forrest McDonald goes into detail on the Peggy Eaton affair, the role of Mrs. Calhoun in ostracizing Peggy, Jackson’s identification of Peggy with his late wife Rachel, and Van Buren’s backroom deceit to convince Jackson that Calhoun was his enemy. Under ordinary circumstances, Jackson would have sided with South Carolina, but Van Buren convinced him that Calhoun, who was his ally, was actually his enemy. That meant that anything connected with Calhoun was bad, and that’s how Jackson reacted – personally.
Increasing the size of the federal government via patronage was simply the new populist politics of the era. It was a matter of harnessing petty corruption to the cause of the President and his party. Ironically, even Hamilton saw that as essentially harmless back in his era.
ONLY IF states find congressional law unconstitutional. Otherwise, nullification violates the Supremacy Clause. If a federal law is in “Pursuance” of the Constitution, then it is the Law of Land.
Go back to my paragraph about the Supreme Court and who gets to make that call. As of today, the states have no legal authority to declare something unconstitutional. They can protest and sue, but the final call is up to the Supreme Court.
Should it be that way? No. Earl Warren was wrong, in my opinion. This is why we need an Amendments Convention. The states should have a mechanism to nullify a federal law they believe is unconstitutional.
Nullification does not = Treason if federal law is unconstitutional.
Again, who makes that call? Our opinions as to constitutionality don’t have the force of law.
Secession does not = Treason if federal acts continue to unconstitutionally abridge and interfere with states’ rights.
According to the Civil War Precedent, unilateral secession is treason no matter what the circumstances. Madison made it clear that the Constitution was a compact, not a treaty, and thus was covered by contract law. You need the consent of the other parties to secede. Unfortunately, the Civil War Precedent has been written in stone and hallowed due to the deaths of 700,000 men on both sides.
If the federal government behaves in a tyrannous manner, the people have the right of revolution, something that goes back to Locke and Blackstone. Even Lincoln was willing to go along with that.
Unconstitutional Federal Law/Acts = Treason.
Not according to current jurisprudence. Accord to that, unconstitutional acts are simply unconstitutional acts, and the Supreme Court alone can make that call. Treason under the Constitution is carefully defined. Until the Court decides, the act is assumed to be constitutional. Should it be this way? No. But you’d need a constitutional amendment to change that.
Although the reason for the tariff was alleged to be mischievous, South Carolina’s nullification lacked constitutional grounds. The nullification was, therefore, invalid.
True.
The Jackson Precedent completely misses the point which is whether nullification or secession is based on an unconstitutional act by the federal government. Since the Jackson Precedent is also without constructional grounds, it is flawed and invalid.
Every administration from every party after Jackson upheld the Precedent and considered it valid. Lincoln fought a war based on its validity. The problem is that this has been written in stone over the centuries. Once that happens, you’d need to amend the Constitution to change it. Our opinions don’t have the force of law.
At the time, the Constitution did not delegate the issue of slavery to the federal government. Slavery, like abortion and marriage, was a states issue, not a federal issue.
True.
Not sure about Lincoln’s understanding here. Constitutional authorization is required for valid federal action. Not so with state action as confirmed by the Ninth and Tenth Amendments.
Lincoln accepted the idea that the Constitution was a contract, not a treaty. He did not see either the Ninth or Tenth Amendments as relevant to the situation. Madison had said that for even one state to secede, the Union would have to be dissolved, and this was and is still the accepted legal thinking. Thus, unilateral secession, no matter the reason, was forbidden. As Nationalists saw it, this was not among the rights the states possessed once they entered into the compact of the Constitution.
State secession doesn’t “dissolve” the union. The union remains less the seceded state(s).
Not according to Madison, and that’s how it has been interpreted ever since. Lincoln was willing to fight a war based on this principle. He won.
All of his foregoing acts listed were unconstitutional.
They were unconstitutional in the sense that only Congress had the authority to do them. Congress was not in session, so Lincoln acted on his own, citing the national emergency of a rebellion. Once Congress convened, it sprinkled holy water on Lincoln’s actions.
Yet if it could be shown that the federal government had acted to interfere with slavery, the southern states had a plausible constitutionally-based case for nullification/secession because the federal government had no constitutional authorization to interfere with slavery.
And everybody knew that except the abolitionists, who were not amenable to reason. But Lincoln and his party were only concerned with keeping slavery out of the territories. He said he had no interest in doing anything about slavery in the states where it was still in practice.
According to Lincoln, but is his reasoning is constitutionally based? If not, then it’s just one man’s opinion and back to the tyranny of the rule of man.
Again, the Constitution is assumed to be governed by contract law, not treaty law. Madison and every president after Jackson accepted that line of legal thinking.
Nothing is “settled" when the Supreme Court makes a decision not based on the best understanding of the original understanding and text of the Constitution.
That is not current jurisprudence. It is “settled” in the sense that you need to amend the Constitution to reverse it. Should it be this way? No, but that’s how it is.
...if it is considered the final word on the Federal Government's right to prohibit a state from seceding, then that right is far from established.
That is the opinion of the writer, but that is not the opinion of the federal government. Tyranny? Perhaps. Reversing legal precedent isn’t easy. Was the Chase Court’s decision in Texas illogical in parts? Certainly. But until it is reversed by the Court or the Constitution is amended, it stands.
Both judicial activism and positive law are tyranny.
Judicial activism is certainly tyranny, but it’s tyranny that is hard to reverse. The temptation for judicial tyranny is firmly seated on both sides. Many FReepers have no problem with judicial activism if it supports their pet issues. Power corrupts.
I would say the distinction and choice is between the Constitutional rule of law (which includes the decentralized power of federalism) or the Fascist rule of man.
This is one of the reasons I see an Amendments Convention as our last hope to restore what we had before the Civil War. The federal government needs to be returned to the constitutional prison that Madison built for it.
In Marbury v Madison, Justice Marshall and SCOTUS rightly claimed the constitutional power of judicial review of legislative acts. (What invalidated the ruling was that SCOTUS did not have original jurisdiction in the case and should have dismissed the case out of hand. Nevertheless, the ruling stands and is an accurate assessment of constitutional judicial power).
Marbury v. Madison, however, does not rule against the power of the states to declare a federal act unconstitutional. The ruling does not directly address this issue at all. However, the ruling, in correctly characterizing the Constitution, does give weight to the inherent power of the states to so rule against either unconstitutional federal legislation or rulings.
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. 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?...[T]he theory of every such government must be that an act of the Legislature repugnant to the Constitution is void…From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Marbury v Madison, 5 U.S. (1 Cranch) at 176, 177, 179-80.
http://www.law.cornell.edu/supremecourt/text/5/137#writing-USSC_CR_0005_0137_ZO
Courts, including the Supreme Court, and Congress, are both subject to censure from unconstitutional decisions or acts. The issue you point out is who decides what's unconstitutional. I address that further below.
I think you and I are pretty close about the problem with the unconstitutionality and threat of our $4,000,000,000,000 socialist government in our country. I believe it MUST be cut by at least 80% (that equals $800 billion, still too big, but it’s a start). And we both agree that a successful Convention of States could go far in remedying the problem. The only thing we may disagree on is how we will get to a free ship of state once again.
I find it difficult to see what kind of force would be necessary to make the government commit suicide (or at least the equivalent of self-inflicted great bodily harm). Government officials and bureaucrats have their own self interests, just like you and I. They have goals and dreams and families to feed. We who have our heads screwed on straight (relatively speaking), know that on a day-to-day basis, they’re not thinking about the wonderful, magnanimous stated goals of some socialist government program. All the government heads and workers know is that it is their means of a livelihood, and greater and faster growth means bigger paychecks, better colleges for their kids, bigger cars, bigger houses.
If somehow We the People through something like the Convention of States, can actually accomplish this, praise the Lord, I am grateful. But I see another alternative that may very well be more realistic – state nullification, which may very well lead to secession. If the federal government will not commit this self-inflicted disablement, and I find it hard to believe it will, then it’s back to the states. I would rather live in a small free state than in a large socialist state.
I think you would agree except for Supreme Court “precedent” over the last 100 years or so. But Supreme Court rulings from opinions that are not reasoned based on the Constitution, especially those that inexplicably overturn precedent from earlier Constitutional-based decisions, must be called into question and, given the chance, overturned, or even nullified if necessary. Again, even Marbury v. Madison says that the Court as well as Congress, is subject to the Constitution. Who might that body be to question constitutionality of an act by federal legislation and ratified by the Court, if not the states?
This is where we disagree, I think. I believe states have just as much Constitutional right as the feds to find a federal act unconstitutional. Again, going to the Supremacy Clause, only laws in pursuance of the Constitution are the Law of the Land. There is nothing in the Constitution disallowing states from declaring a federal act unconstitutional. And there is no Supreme Court ruling based on Constitutional reasoning that has found such prohibition in the Constitution. And the Tenth Amendment confirms that power that has not been explicitly and exclusively given to the feds or denied to the states, belong to the states and the people.
There is no constitutional prohibition or Court ruling based on constitutional reasoning that prohibits a state from nullifying an unconstitutional federal act. And to the degree the feds unconstitutionally interfere with the state, that state has a constitutional right to sever from the feds. IMO, the only thing required would be to base such action on a good-faith effort by the state legislature to find original constitutional intent and understanding from the text and relevant history as confirmed or ratified, if necessary, by the State Supreme Court.
I’m not sure I agree with the “contract versus treaty” distinction between the states and the feds via the Constitution. Somebody said the distinction is that in a contract both parties must agree to rescind the contract, whereas in a treaty, only one party is needed to void the treaty. But in a contract, if one party breaches, the other party may be discharged from performance. So, if the Constitutional agreement is a contract, if the feds fail to keep their part of the bargain – abiding by the Constitution – the states are not bound but are discharged from their part of the agreement.