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To: Gianni; WhiskeyPapa
Judging by Walt's reply, I'm sure he feels that Lincoln's refusal to follow the Scott decision, and that of Ex parte Merryman to be illegal.

In the debates, the framers refused TWICE to allow troops to be sent in to coerce a state.

1,069 posted on 10/13/2003 9:00:16 AM PDT by 4CJ (Come along chihuahua, I want to hear you say yo quiero taco bell. - Nolu Chan, 28 Jul 2003)
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To: 4ConservativeJustices
Judging by Walt's reply, I'm sure he feels that Lincoln's refusal to follow the Scott decision, and that of Ex parte Merryman to be illegal.

No no, it's only the little people who are not allowed to disagree with the court.

1,072 posted on 10/13/2003 12:08:19 PM PDT by Gianni
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To: 4ConservativeJustices
In the debates, the framers refused TWICE to allow troops to be sent in to coerce a state.

"The men at the convention, it is clear enough, assumed that the national government must have the power to throw down state laws that contradicted federal ones: it was obvious to them that the states could not be permitted to pass laws contravening federal ones...

It did not take long for the supremacy of the Supreme Court to become clear. Shortly after the new government was installed under the new Constitution, people realized that the final say had to be given to somebody, and the Connecticut Jurist and delegate to the Convention Oliver Ellsworth wrote the judicary act of 1789, which gave the Supreme Court the clear power of declaring state laws unconstitutional, and by implication allowing it to interpret the Constitution. The power to overturn laws passed by Congress was assumed by the Supreme Court in 1803 and became accepted practice duing the second half of the nineteenth century."

"The convention was slow to tackle the problem of an army, defense, and internal police. The Virginia Plan said nothing about a standing army, but it did say that the national government could 'call forth the force of the union against any member of the Union failing to fulfill its duty under the articles thereof.' The delegates had expected to discuss something like this clause, for one of the great problems had been the inability of the old Congress to enforce its laws. Surely it should be able to march troops into states when necessary to get state governments to obey.

But in the days before the convention opened Madison had been thinking it over, and he had concluded that the idea was a mistake. You might well march your troops into Georgia or Connecticut, but then what? Could you really force a legislature to disgorge money at bayonet point? 'The use of force against a state,' Madison said, as the debate started on May 31, 'would be more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.' Although he did not say so at the moment, he had another way of enforcing national law, which not only would be more effective, but also philosophically sounder. As the government was to derive its power from the people, it ought to act on the people directly. Instead of trying to punish a state, which was, after all, an abstraction, for failure to obey the law, the U.S. government could punish individuals directly. Some person -- a governor, a tax collector, a state treasurer -- would be held responsible for failure to deliver the taxes. Similarly, the national government would not punish a state government for allowing say, illegal deals with Indians over western lands, but would directly punish the people making the deals. All of this seemed eminently sensible to the convention and early in the debate on the Virginia Plan the power of the national government to 'call forth the power of the Union' was dropped. And so was the idea that the government should be able to compell the states disappeared from the convention. It is rather surprising, in view of the fact that the convention had been called mainly to curb the independence of the states, that the concept went out so easily. The explanation is, in part, that the states' righters were glad to see it go; and in part that Madison's logic was persuasive: it is hard to arrest an abstraction."

--"Decision in Philadelphia" by Collier and Collier

Walt

1,078 posted on 10/13/2003 3:51:49 PM PDT by WhiskeyPapa (Virtue is the uncontested prize.)
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