(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...
;>)
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.