Congress, the Court, and the Constitution (LOUIS FISHER)

PREPARED STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS, CONGRESSIONAL RESEARCH SERVICE

Mr. Chairman, I appreciate the opportunity to testify on the role of Congress in interpreting the Constitution. To my knowledge, this is the first time that congressional hearings have been used for the purpose of understanding the contributions made by legislators in shaping and protecting constitutional values. Too often, especially in recent years, it is assumed that the judiciary has a monopoly on constitutional interpretation and that Congress must defer to the courts.

The framers expected Congress to play a pivotal role in debating and legislating on constitutional issues. Most of the important constitutional issues in the early decades were decided almost exclusively by Congress and the President. There were few decisions by federal courts to guide the elected branches. The record of this early period has been ably covered by David Currie in a number of law review articles, brought together in his book The Constitution in Congress (1997). As he explains in the concluding chapter, it was ''in the legislative and executive branches, not in the courts, that the original understanding of the Constitution was forged.''

Particularly in the twentieth century, scholars, judges, and sometimes Members of Congress claim that the U.S. Supreme Court has the ''last word'' on the meaning of the Constitution. Under this theory, if Congress disagrees with a Court ruling the only alternative is to pass a constitutional amendment to overturn the Court. This belief in judicial supremacy overlooks much of the flexibility and political considerations that characterize the relationship between the judiciary and other elements of the political system: Congress, the President, the states, and the general public.

In recent decades, much has been made of the statement by Chief Justice John Marshall, in Marbury v. Madison (1803), that it is ''emphatically the province and duty of the judicial department to say what the law is.'' Does that mean that the Court alone delivers the ''final word'' on the meaning of the Constitution? According to a unanimous ruling by the Court in the Little Rock crisis, Marbury ''declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution.'' Cooper v. Aaron, 358 U.S. 1 (1958). That principle was reasserted by the Court in the reapportionment case of Baker v. Carr (1962): ''Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and a responsibility of this Court as ultimate interpreter of the Constitution.'' Seven years later, in the exclusion case of Adam Clayton Powell, the Court again referred to itself as the ''ultimate interpreter'' of the Constitution. Powell v. McCormack, 395 U.S. 486, 549 (1969).

These statements distort what Chief Justice Marshall decided in Marbury. While it is ''emphatically the province and duty of the judicial department to say what the law is,'' certainly the same can be said of Congress and the President. All three branches say what the law is. The Court states what the law is on the day a decision comes down; the law may change later by actions taken by the elected branches. I will give a number of prominent examples of this institutional interplay.

In 1803, Marshall did not think he was powerful enough to give orders to Congress and the President. After the elections of 1800, with the Jeffersonians in control of Congress and the Presidency, the Federalist Court was in no position to dictate to the other branches. Marshall realized that he could not uphold the constitutionality of Section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshall believed that the Court was supreme on matters of constitutional interpretation.

This conclusion is borne out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it turned its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase:

The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he played a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judiciary functioned as a yea-saying, not a negative, branch.

The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it ''a nuisance.'' Congress responded with legislation that declared the bridges at issue to be ''lawful structures,'' and the Court then ruled that the bridges were no longer unlawful obstructions.(see footnote 12) In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: ''whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval.''(see footnote 13)

In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability.

Neal Devins and I talked about this article. We tried to recall a time when the Court ever ''settled'' a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompanied by revised procedures, was constitutional.

Even for more popular decisions, such as the desegregation case of 1954, little was settled by the Court's ruling. More than a decade later, a federal appellate court noted: ''A national effort, bringing together Congress, the executive, and the judiciary may be able to make meaningful the right of Negro children to equal educational opportunities. The courts acting alone have failed.''(see footnote 14) To deal with racism and segregation, it was necessary for Congress and the President, with bipartisan majorities, to pass such statutes as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Devins and I concluded that judicial exclusivity in constitutional lawmaking would be contrary to American history, the framers' intent, and legal development. We also believe that it would lead to political instability, not stability. Our response to the Alexander-Schauer article will appear in the February 1998 issue of Virginia Law Review.

To explain the breadth of congressional activity in interpreting the Constitution, the following three sections discuss (1) how Congress resolves these issues before the Court decides, (2) what it may do when the Court upholds the constitutionality of a measure, and (3) what it may do when the Court decides that a measure is unconstitutional. The meaning of the Constitution is not fixed by any one branch, but is rather that product of all three branches acting in concert with the states and the public at large.

Congress frequently must act on constitutional matters before there are useful precedents from the courts. Many of the difficult issues related to the veto power, the pocket veto, recess appointments, the incompatibility and ineligibility clauses, war powers, covert operations, and other disputes are generally resolved by Congress with little input from the courts.(see footnote 15)

Occasionally these issues move toward the Supreme Court, but just as quickly they are turned back by various threshold tests. In the 1970s, covert funding of the intelligence community was challenged as a violation of the Statement and Account Clause. In 1974, the Court held that the litigant lacked standing to bring the suit. United States v. Richardson, 418 U.S. 166. That issue was left to Congress and the President to decide. In 1987, when it appeared that the Court would decide the constitutionality of a pocket veto by President Reagan, the case was dismissed on grounds of mootness. Burke v. Barnes, 479 U.S. 361. That issue, too, was pushed back to elected officials to resolve. A variety of other doctrines-political questions, ripeness, prudential considerations, nonjusticiability, and equitable discretion-are used by the court to sidestep constitutional issues. The result is that a number of constitutional issues are returned to the elected branches.

When the Court decides that a congressional statute is constitutional, the controversy may remain open for different treatment by the legislative and executive branches. For example, President Andrew Jackson received a bill in 1832 to recharter the United States Bank. Although the Court in McCulloch v. Maryland (1819) had ruled that the bank was constitutional, Jackson vetoed the bill on the ground that it was unconstitutional. His veto message said that he had taken an oath of office to support the Constitution ''as he understands it, and not as it is understood by others.'' His position on the veto power has been followed by all subsequent Presidents. Regardless of the constitutional decisions reached by Congress and the courts, Presidents may independently analyze the constitutionality of bills presented to them.

To take a contemporary example, Presidents Reagan and Clinton signed bills reauthorizing the office of independent counsel. The Court in Morrison v. Olson (1988) upheld the constitutionality of the independent counsel statute. Nevertheless, President Clinton or any future President has the independence to veto a reauthorization bill on the ground that the office of independent counsel encroaches upon the executive power granted to the President by the Constitution. For that matter, Members of Congress could decide at the next reauthorization stage that the office of independent counsel violates the Constitution. Morrison simply means that Congress and the President may create the office if they want to. They may rethink and revisit the statute at any time.

My attached CRS Report, ''Congressional Checks on the Judiciary,'' contains a number of other examples of Congress acting by statute to neutralize a constitutional decision by the Court. In 1986, the Court upheld the constitutionality of an Air Force regulation that prohibited Captain Simcha Goldman from wearing his yarmulke indoors while on duty. The Court decided that the needs of the Air Force outweighed Goldman's constitutional right to freely exercise his religion. Goldman v. Weinberger, 475 U.S. 503. Within a year, Congress attached to a military authorization bill language permitting military personnel to wear conservative, unobtrusive religious apparel indoors, provided that it does not interfere with their military duties. 101 Stat. 1086-87, sec. 508 (1987). The Court decided the conflict between Air Force needs and religious freedom one way; Congress decided it the other way.

If the Court decides that a governmental action is unconstitutional, it is usually more difficult for Congress and the President to challenge and override the judiciary. But even in this category there are examples of effective legislative and executive actions in responding to court rulings.

In his inaugural address in 1857, President James Buchanan announced that the dispute over slavery in the territories ''is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled.'' Two days later Chief Justice Taney handed down the Court's decision in Dred Scott, holding that Congress could not prohibit slavery in the territories and that blacks were not citizens. That decision was eventually overturned by the Civil War Amendments-the Thirteenth, Fourteenth, and Fifteenth Amendments-but before those amendments were ratified Congress and the President had already reversed Dred Scott. In 1862, Congress passed legislation to prohibit slavery in the territories, 12 Stat. 432, and in that same year Attorney General Bates released a long opinion which held that neither color nor race could deny American blacks the right of citizenship. 10 Op. Att'y Gen. 382 (1862).

In 1916, Congress relied on the commerce power to enact a child labor law. In Hammer v. Dagenhart (1918), the Court held that the statute was unconstitutional. A year later Congress passed new child labor legislation, this time relying on the taxing power. Again the Court, in Bailey v. Drexel Furniture Co., struck it down. Congress passed a constitutional amendment in 1924 to give it the power to regulate child labor but ratification proved impossible. In 1938, Congress returned to the commerce power to regulate child labor and this time the Court, unanimously, upheld the statute. United States v. Darby, 312 U.S. 100 (1941).

This record-from 1916 to 1941-was an exceptionally lengthy dialogue between Congress and the Court, with the legislative branch eventually prevailing. The Court later admitted that ''the history of judicial limitation of congressional power over commerce, when exercised affirmatively, has been more largely one of retreat than of ultimate victory.'' Prudential Ins. Co. v. Benjamin, 328 U.S. 408, 415 (1946).

The Court's decision last year in Boerne v. Flores, striking down the Religious Freedom Restoration Act (RFRA), raises a number of issues about judicial finality. In deciding that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment, and hinting that the Court has the last and final word in deciding the meaning of the Constitution, the Court nevertheless left the door wide open for future congressional action. The reasoning and premises in the decision are often unpersuasive and internally inconsistent. The Court invites future congressional action by noting that there ''must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' 117 U.S. at 2164. Does that mean that adjustments to a redrafted bill would pass muster? In comparing RFRA to the Voting Rights Act, the Court says that RFRA's ''legislative record lacks examples of modern instances of generally applicable laws passed because of religious bigotry.'' Id. at 2169. Is that the problem? If Congress, with findings, could identify recent examples of religious persecution, would RFRA be constitutional?

My CRS report includes other examples, but I will end with a dispute in 1970. The House Committee on Internal Security prepared a report on the honoraria given to guest speakers at colleges and universities. The study included the names of leftist or antiwar speakers and the amounts they received. The ACLU obtained a copy of the galleys and asked a federal district court to enjoin their publication. The court ruled that the report served no legislative purpose and was issued solely for the sake of exposure or intimidation. It ordered the Public Printer and the Superintendent of Documents not to print the report ''or any portion, restatement or facsimile thereof,'' with the possible exception of placing the report in the Congressional Record. Hentoff v. Ichord, 318 F.Supp. 1175, 1183 (D.D.C. 1970).

The House of Representatives passed a resolution that told the courts, in essence, to step back. During the course of the debate, Members of Congress explained that it was not the practice of the House to print committee reports in the Record. Moreover, the judge's order ''runs afoul not only of the speech and debate clause-article I, section 6-of the Constitution, but obstructs the execution of other constitutional commitments of the House as well, including article I, section 5, which authorizes each House to determine the rules of its proceedings, and requires each House to publish its proceedings.'' After the resolution was passed by a large bipartisan margin (302 to 54), the report was printed without any further interference from the judiciary.

This collision between Congress and the judiciary was unusually abrupt. For the most part, the legislative-judicial dialogue is more nuanced and subtle. In INS v. Chadha (1983), the Supreme Court struck down the ''legislative veto'' as unconstitutional. Congress no longer attempts to use one-House or two-House legislative vetoes to control the executive branch. On the other hand, it continues to use committee and subcommittee vetoes to monitor agency actions.(see footnote 16)

At certain points in our constitutional history, there has been a compelling need for an authoritative and binding decision by the Supreme Court. The unanimous ruling in Cooper v. Aaron (1958), signed by each Justice, was essential in dealing with the Little Rock desegregation crisis. Another unanimous decision in United States v. Nixon (1974) disposed of the confrontation between President Nixon and the judiciary regarding the Watergate tapes. For the most part, however, court decisions are tentative and reversible like other political events.

There is no reason for Congress to defer automatically to the judiciary because of its supposed technical skills and political independence. Much of constitutional law depends on factfinding and the balancing of competing values, areas in which Congress justifiably can claim substantial expertise. Each decision by a court is subject to scrutiny by private citizens and public officials. What is ''final'' at one stage of our political development may be reopened at some later date, leading to revisions, fresh interpretations, and reversals of Supreme Court doctrines. Members of Congress have both the authority and the capability to participate constructively in constitutional interpretation.

Through this process of interaction among the branches, all three institutions are able to expose weaknesses, hold excesses in check, and gradually forge a consensus on constitutional values. Also through this process, the public has an opportunity to add a legitimacy and a meaning to what might otherwise be an alien and short-lived document.(see footnote 17)

Louis Fisher is a senior specialist in separation of powers with the Congressional Research Service of the Library of Congress. He began work with CRS in 1970 and served as research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.

His books include President and Congress (1972), Presidential Spending Power (1975), The Constitution Between Friends (1978), The Politics of Shared Power (4th ed. 1998), Constitutional Conflicts Between Congress and the President (4th ed. 1997), Constitutional Dialogues (1988), American Constitutional Law (2d ed. 1995), Presidential War Power (1995), and Political Dynamics of Constitutional Law (with Neal Devins, 2d ed. 1996). His textbook in constitutional law is available in two paperbacks: Constitutional Structures: Separation of Powers and Federalism and Constitutional Rights: Civil Rights and Civil Liberties. With Leonard W. Levy he edited the four-volume Encyclopedia of the American Presidency (1994). He has twice won the Louis Brownlow Book Award, the encyclopedia he co-edited was awarded the Dartmouth Medal, and in 1995 he received the Aaron B. Wildavsky Award ''For Lifetime Scholarly Achievement in Public Budgeting'' from the Association for Budgeting and Financial Management.

He received his doctorate in political science from the New School for Social Research (1967) and has taught at Queens College, Georgetown University, American University, Catholic University, Indiana University, Johns Hopkins University, the College of William and Mary law school, and the Catholic University law school.

Dr. Fisher has been invited to testify before Congress on such issues as executive spending discretion, presidential reorganization authority, the legislative veto, the line-item veto, the Gramm-Rudman-Hollings Act, executive privilege, executive lobbying, covert spending, the pocket veto, recess appointments, the budget process, the balanced budget amendment, biennial budgeting, and presidential impoundment powers.

He has been active with CEELI (Central and East European Law Initiative) of the American Bar Association, traveling to Bulgaria, Albania, and Hungary to assist constitution-writers, participating in CEELI conferences in Washington, D.C. with delegations from Bosnia-Herzegovina, Lithuania, Romania, and Russia, and serving on CEELI ''working groups'' on Armenia and Belarus. As part of CRS delegations he traveled to Russia and Ukraine to assist on constitutional questions.

Dr. Fisher's specialties include constitutional law, war powers, budget policy, executive-legislative relations, and judicial-congressional relations. He is the author of more than 200 articles in law reviews, political science journals, encyclopedias, books, magazines, and newspapers. He has been invited to speak in Albania, Australia, Bulgaria, Canada, the Czech Republic, England, Germany, Greece, Holland, Israel, Macedonia, Malaysia, Mexico, the Philippines, Romania, Russia, Slovenia, Taiwan, and Ukraine.

The Barron decision wasn't 'passed'

I know. My sentence referred to when the Bill of Rights was passed, not when the Barron ruling was handed down.

IMO, barron was a cynical attempt to appease the south, and avert war. -- Do you have any citations from that time period to suggest that it wasn't?

If it was a political decision, then it would have generated controversy. Particularly, if it was designed to placate the South, then there would have been significant opposition up North. If you go to a seach engine with terms such as Barron, Baltimore, controversy, it'll come up with nothing to speak of. Compare this to the reaction to Taney's ruling in Dred Scott vs. Sanford. Like night and day.

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The Founders intended for the political branches of government to be subject to the law - i.e., the Constitution - and as well intended for the judiciary to declare the meaning of that law. If the political branches contemn the courts on such matters, they are in effect announcing that they are behaving outside the law, and that they recognize no restraints upon their discretion. This defeats the whole purpose of having a written Constitution.
7 -inquest-

I agreed with your comment above , as did Marshalls decision of 1803.
- His Barron decision does not, as it, in effect, says that state governments are not subject to the laws/principles of our BOR's. This defeats the whole purpose of having a written Constitution.

Now, you claim:

"We were talking about whether whether the Barron decision was consistent with the received understanding of the BOR at the time it was passed." -inquest-

Obviously, I repeat, it was not consistent. States were bound to honor the constitution by Art VI. There was no exception for the BOR's.

States were bound to honor the constitution by Art VI.

The supremacy clause is only relevant to the states in cases where it can be determined that a particular provision in the Constitution restricts state action. Once it is determined that said provision restricts the states, then the supremacy clause will automatically nullify state law to the contrary. But in order for it to do that, it must first be shown that the provision in question truly does apply to the states.

The evidence so far is that the founders (of whom Marshall was one, btw) did not consider that the Bill of Rights was among the provisions that restricted the actions of the states.

One other thing I noticed from your post:

His Barron decision does not, as it, in effect, says that state governments are not subject to the laws/principles of our BOR's. This defeats the whole purpose of having a written Constitution.

It actually doesn't defeat the purpose of the Constitution. The Constitution was written to create a federal government, and to define its powers. Marshall's ruling was consistent with that purpose. He wasn't saying that states have the power to interpret the Constitution as they see fit, nor did he say they weren't subject to the law. He was saying that the law didn't say what the plaintiff in error claimed it said. That's all.

States were bound to honor the constitution by Art VI.

The supremacy clause is only relevant to the states in cases where it can be determined that a particular provision in the Constitution restricts state action.

Do you have any citations from that time period to suggest that this is a fact?

Once it is determined that said provision restricts the states, then the supremacy clause will automatically nullify state law to the contrary. But in order for it to do that, it must first be shown that the provision in question truly does apply to the states.

Do you have any citations from that time period to suggest that is a fact? -- I've never heard these particular opinions presented before. -- Anywhere.

The evidence so far is that the founders (of whom Marshall was one, btw) did not consider that the Bill of Rights was among the provisions that restricted the actions of the states.

You have failed to show ~any~ such 'evidence'.
Do you have any citations from that time period to suggest that these suppositions are true?

Do you have any citations from that time period to suggest that is a fact? -- I've never heard these particular opinions presented before. -- Anywhere.

I thought I was just stating obvious facts about the supremacy clause. You first need to establish that a provision restricts state action before it can nullify state law. I can't put such a self-evident notion in any plainer terms than that.

You have failed to show ~any~ such 'evidence'. Do you have any citations from that time period to suggest that these suppositions are true?

Well, I presented you with the Preamble to the Bill of Rights; and on previous threads I showed you how Section 9 of Article I compares with Section 10 (illustrating the difference between a general prohibition and one that's specific to the states), which you've consistently rejected without saying why.

I've also told you that the reason why people insisted upon a Bill of Rights was that they were afraid of the powers of the new federal government, and wanted those powers curtailed. There's no indication that they were acting out of fear of their own state governments, since (among other things) there was no comparable provision in the Articles of Confederation.

Also, you might want to consider this draft proposal by James Madison for what ultimately became the first amendment: "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases." Source

If the first part already restricted the states, then there would have been no need to repeat it in the second part. Madison seemed to be a fairly literate fellow, so I think we can conclude that he knew how to express himself coherently. If it was his view that general prohibitions only applied to the federal government, then I think it's safe to say that that was the general view of those around him.

Marshalls point in 1803 differed from the one he made in Barron, 30 years later. The latter one was not consistent with the obvious original intent of the founders.

But I showed you at #30 how it was consistent with the original intent.

Not at all. At 30 you just elaborated on your circular argument that the States have powers to write law not directly restricted by particular provisions of the constitution, ignoring the BOR's as part of the constitution, on the basis that it was decreed so by the Barron opinion of the USSC.

At this point I'm going to have to ask you once again the question you've been reflecting back at me for the last few posts. Do you have any citations from the time period, or any other evidence beyond your own reading of the Bill of Rights, to suggest that the Founders intended for it to curtail state powers?

The entire Constitution [which includes the BOR's] curtails states powers in various different provisons.
-- The most important of which, and the one that proves my point best, is the 14th.
By 1868, it was obvious that the Barron 'ruling' was being abused by states to curtail individual rights, [noteaby the 2nd], thus its passage was an effort to restore original intent.

Some states are still ignoring the 2nd, as per CA, and it constantly amazes me that some 'conservatives' agree that states have such powers. -- What possible political advantage is gained by agreeing that states can ignore our individual rights?

Are you reading the same post I am? I did indeed argue "the States have powers to write law not directly restricted by particular provisions of the constitution" but it was most certainly not "on the basis that it was decreed so by the Barron opinion of the USSC." It was on the basis of the language contained in Sections 9 and 10 of Article I, on the basis of the preamble to the Bill of Rights, and on the basis of Madison's language when he was proposing an early draft of the Bill of Rights.

What possible political advantage is gained by agreeing that states can ignore our individual rights?

I wouldn't agree to that. I always insist that states should respect our rights. What I'm arguing against is the notion that the federal government has such legitimate powers over the states. Consider what happens, for example, when the high court makes rulings such as those which prohibit graduation speakers from issuing prayers, but allow them to give sermons about the need for more school funding, or about promoting "diversity" or other such drivel. Does this contribute to a greater appreciation for liberty? Does it cultivate an affection for small government or individual freedom? Most certainly not. What it does do is weaken people's resistance to federal authority. It does absolutely nothing else.

And if you want RKBA respected in California, it's not going to happen by petitioning the federal courts. They're not interested in gun rights. Your best bet is to put your efforts into fighting for it locally. Ultimately, the only way rights are going to be respected is if a certain critical mass of the population is educated about them.

Are you reading the same post I am? I did indeed argue "the States have powers to write law not directly restricted by particular provisions of the constitution" but it was most certainly not "on the basis that it was decreed so by the Barron opinion of the USSC."
It was on the basis of the language contained in Sections 9 and 10 of Article I, on the basis of the preamble to the Bill of Rights, and on the basis of Madison's language when he was proposing an early draft of the Bill of Rights.

Merely making a statement that those items are the basis of your argument, -- is not an argument. I have no idea what your percise point may be. You never specified.

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What possible political advantage is gained by agreeing that states can ignore our individual rights?

I wouldn't agree to that. I always insist that states should respect our rights. What I'm arguing against is the notion that the federal government has such legitimate powers over the states.

I don't have that notion, while you seem to have one that equates the feds with our constitution. [The 'feds' have no power over states except that delegated. -- AND. -- The 'states' have no power over feds except that delegated.] --- They are supposed to check and balance. -- Get it?

Consider what happens, for example, when the high court makes rulings such as those which prohibit graduation speakers from issuing prayers, but allow them to give sermons about the need for more school funding, or about promoting "diversity" or other such drivel. Does this contribute to a greater appreciation for liberty? Does it cultivate an affection for small government or individual freedom? Most certainly not. What it does do is weaken people's resistance to federal authority. It does absolutely nothing else.

By not fighting the USSC on these 'rulings', the States are failing in their constitutional obligations to the people. -- You are blaming our Constitution for the 'peoples' political failures.

Gee, I never thought of that. --- Yet you've spent a good amount of time, trying to 'educate' me in the supposed fact that CA is not obligated to honor the 2nd amendment.
-- Go figure, - Because I can't.

I have no idea what your percise point may be. You never specified.

Of course I specified. The point is that general prohibitions in the Constitution, that don't mention states, apply against the federal government only. Those items I mentioned are evidence in support of that point. Ignore them if you like, but there they stand.

The 'feds' have no power over states except that delegated.

They have the power to enforce the Constitution. If your position is true, that the Bill of Rights is binding upon the states, then the "feds" have the power to enforce it. My position is that the Founders didn't intend for it to be binding on the states, so therefore the federal government would be without power to enforce something that was intended to only apply to themselves. So yes, this dispute is about the proper extent of federal power.

By not fighting the USSC on these 'rulings', the States are failing in their constitutional obligations to the people. -- You are blaming our Constitution for the 'peoples' political failures.

That's no different from you blaming Barron vs. Baltimore for the people's failure, in your state, to respect gun rights. Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me.

Yet you've spent a good amount of time, trying to 'educate' me in the supposed fact that CA is not obligated to honor the 2nd amendment.

The only thing I've tried to convince you of is that the federal courts aren't constitutionally empowered to protect gun rights from your state government. That's up to the people of your state.

I have no idea what your percise point may be. You never specified.

Very well then, your entire point is made mute by the 14th amendment, which 'mentions' that States must observe individual rights to life, liberty or property.

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The 'feds' have no power over states except that delegated.

They have the power to enforce the Constitution.

Yep, sure do. Although below, you again insist they can't enforce individual rights to property. Weird dichotomy:
"the federal courts aren't constitutionally empowered to protect gun rights from your state government"
Which way would you have it?

If your position is true, that the Bill of Rights is binding upon the states, then the "feds" have the power to enforce it. My position is that the Founders didn't intend for it to be binding on the states, so therefore the federal government would be without power to enforce something that was intended to only apply to themselves.

Circular reasoning again? The protection of individual rights were VERY important to the founders, and they certainly were not naive enough to believe that state governments couldn't abuse them. The BOR's applies to states, just as it says in the 10th.

So yes, this dispute is about the proper extent of federal power.

It shouldn't be, because I agree the feds abuse our constitution, more so than the states.

By not fighting the USSC on these 'rulings', the States are failing in their constitutional obligations to the people. -- You are blaming our Constitution for the 'peoples' political failures.

That's no different from you blaming Barron vs. Baltimore for the people's failure, in your state, to respect gun rights.

Odd comment. -- I don't 'blame' B v B. - I blame the communitarians in power, and some of their 'states rights' so-called-conservative allies, who passed these insane bills.

Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me.

Yet you've spent a good amount of time, trying to 'educate' me in the supposed fact that CA is not obligated to honor the 2nd amendment.

The only thing I've tried to convince you of is that the federal courts aren't constitutionally empowered to protect gun rights from your state government. That's up to the people of your state.

You said just above:

"They have the power to enforce the Constitution."

I suggest you rethink your position.

Yep, sure do [have the power to enforce the Constitution]. Although below, you again insist they can't enforce individual rights to property. Weird dichotomy: "the federal courts aren't constitutionally empowered to protect gun rights from your state government" Which way would you have it?

You're making the assumption that because I say they have the power to enforce the Constitution, I must be saying they have the power to enforce your interpretation of it. Why would you make such an assumption?

The protection of individual rights were VERY important to the founders, and they certainly were not naive enough to believe that state governments couldn't abuse them.

Hmm. I guess that explains why they never bothered to include a bill of rights in the Articles of Confederation, or in the original draft of the Constitution. The Bill of Rights was passed at the insistence of the anti-federalists - you know, the "states' rights" crowd.

The BOR's applies to states, just as it says in the 10th.

The 10th amendment says absolutely no such thing.

It shouldn't be, because I agree the feds abuse our constitution, more so than the states.

And if the Barron precedent had been followed, federal abuse of the Constitution would have been significantly curtailed.

I don't 'blame' B v B. - I blame the communitarians in power, and some of their 'states rights' so-called-conservative allies, who passed these insane bills.

But it was the Barron precedent which, in your view, enabled these people to get away with it, is that right? Similarly, I said, "Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me." You quoted me but didn't respond.

Yep, sure do [have the power to enforce the Constitution]. Although below, you again insist they can't enforce individual rights to property. Weird dichotomy:
"the federal courts aren't constitutionally empowered to protect gun rights from your state government"
> Which way would you have it?

Because nothing else is logical? Look, you have the odd interpretation of our constitution, not me. -- Why? I don't know.

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The protection of individual rights were VERY important to the founders, and they certainly were not naive enough to believe that state governments couldn't abuse them.

Hmm. I guess that explains why they never bothered to include a bill of rights in the Articles of Confederation, or in the original draft of the Constitution. The Bill of Rights was passed at the insistence of the anti-federalists - you know, the "states' rights" crowd.

How backwards. The 'states rights' crowd want to be able to ignore individual rights, and always have. -- Nope, -- The BOR's were passed to insure that all levels of government protected individual rights to life, liberty, and property, enumerated or not.

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The BOR's applies to states, just as it says in the 10th.

The 10th amendment says absolutely no such thing.

Powers not prohibited to the States [& those prohibited were enumerated in the BOR's/Constitution], - are reserved to the states, -- or to the people. - Plain to me.

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I agree the feds abuse our constitution, more so than the states.

And if the Barron precedent had been followed, federal abuse of the Constitution would have been significantly curtailed.

By who? States taking away gun rights from ex-slaves in 1868? -- Daft.

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I don't 'blame' B v B. - I blame the communitarians in power, and some of their 'states rights' so-called-conservative allies, who passed these insane bills.

But it was the Barron precedent which, in your view, enabled these people to get away with it, is that right?

B v B is a minor one of their ploys. The Milita clause seems to be the hot cite for prohibiting 'assault' weapons.

Similarly, I said, "Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me." You quoted me but didn't respond.

Of course I didn't respond. It's a rhetorical 'question', that in effect just restates your position. -- Whats to say?

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