Thursday, July 23, 2009

Forget the Whole Text, Read the First Three Words

In letters so big you could practically read them from across the room.

We the People...

Hopefully we all know what that is from, and understand why it was there to begin with, so emphasized. 

Jay commented on my previous post to express his concern that the strength of the Individual States to fight federal overrule is greatly impaired by the Supremacy Clause, and the 14th Amendment to the Constitution, and that the Individual States may find themselves without a leg to stand on as they begin to assert their rights to self rule.

I understand his concern there, and thought I would reply with my own thoughts, though I don't know if I have too many ideas on the subject that are not already known to most of you.

These are the two snips in question, which some people think have lent credence to the idea that the Federal Government may overrule the will, and law, of the individual states of its union, and in some cases, have allowed it to do so. 
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." -- The Supremacy Clause.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." -- Privileges and Immunities Clause, 14th Amendment.
Personally, I don't think that they do in fact, override, legally, the rights of the states to make their own governments, as such is clearly protected by the 10th Amendment, and I'll try to explain my reasoning, though  wont get into individual case citations, and leave it as just a broad overview.

The 14th amendment is clearly of less concern, out of the two of them, as it is written to protect the privileges and rights of the Citizens and not of the Federal Government, and I don't think it offers any real resistance to a state blocking federal law enforcement activities. Being raided and arrested by UncleBATFEcker is hardly a privilege, now is it? This clause was really only intended to limit state governments and extend the first 8 Constitutional amendments, constituting the bill of rights, which limited congress, to limiting state legislatures. (though this was actually done, instead, through the Due Process Clause, to all but the second and third amendments and as such, the Privileges and Immunities clause, though very strongly worded, had little legal effect)

The Supremacy Clause, on the other hand, is indeed a bag of worms, and one which both theory and the Supreme Court's actions based upon it have been swinging back and forth for years. John Marshall, named chief justice of the Supreme Court in 1801, was the first person to take the viewpoint that no state law could conflict with federal law, and stated "the government of the Union, though limited in its power, is supreme within its sphere of action." This would be very much of concern if this was still the viewpoint the courts would take, as it leaves little room for questioning any Federal Authority, in an age where much of the limited power Marshal spoke of has long been expanded.

However, by the time the War Between the States was over, the court changed its position thoroughly, and consistently upheld state laws in contradiction to federal, by invoking the 10th amendment. Powers not delegated to the federal government are reserved to the states or to the people. 

Then came the Great Depression, and back to broad national overreaching powers we went, some say by necessity, and some say by design.

Where we are today, in the court's oppinion, is hard to say, but if the number of states who have passed resolutions affirming their 10th amendment rights is any indication, our own state of Arizona included, and most recently, Alaska, (I should have a link here to the full list, but i couldn't find one) I would say at least popular support is heading the direction of States Rights. No matter which side you would choose to support, there is plenty of case law to support either viewpoint, and case law offers some guidance in setting conditions to decide if the Supremacy Clause is sufficient for the courts to decide to override the laws of an individual state, on a case by case basis.

Two issues arise when state action is in apparent conflict with federal law. The first is whether the congressional action falls within the powers granted to Congress by the constitution. If Congress exceeded its authority, the congressional act is invalid and, despite the Supremacy Clause, has no priority over state action. This, for once, is a very consistent viewpoint of the courts, even if they vary on their opinion of what exact powers the constitution does grant to Congress. The second issue we have to consider is whether Congress intended its policy to supersede state policy. Congress often acts without intent to preempt state policy making or with an intent to preempt state policy on a limited set of issues. Congress may intend state and federal policies to coexist, and if no intention of preemtion was present, there no reason that they cannot be made to coexist.

What we have here is a law potentially supported by one constitutional phrase, and forbidden by another. If given the choice between the two conflicting laws, and indeed, two conflicting clauses of the constitution, I would assume any reasonable man would support the more qualified of the two, irregardless of the supremacy clause, who's effect, doubtlessly, is nullified by a violation of the 10th amendment, the support of which both states have already stated was their sole motivation in drafting these particular laws. The states do in fact have a right to regulate intra-state commerce, without any question, and the federal government has no power to do so, over the states, at least not granted through the Constitution.

Sounds open and shut to me.

As I said, I am uncertain, today, if the current Supreme Court would see it that way, but the fundamental point of my last post was that it shouldn't matter what the Supreme Court thinks, in the end, as the states have just as much right to review and interpret the constitution, if not more, than the Supreme Court does, and they need to start doing so, not just on this matter, but several others. As I quoted in that last post, "[I]f the Constitution is over the [Supreme] Court, who or what finally is over the Constitution? It can only be the States, who under Article V alone have the power to amend or rewrite it. How, then, may it be urged that the States ‘unequivocally surrendered’ the control of their most fundamental rights, in the last resort, to a Court they themselves created?” There is no escaping this fundamental fact, the states are sovereign entities of and to themselves, with political power granted directly by their citizens, tasked with serving and protecting the interests of those citizens, and they must act accordingly. 

More important than these conversations about what legal avenues lie before us, or what constraints generations and generations of legislators and judges have placed upon us, is the fundamental question: what should government be allowed to do, to best ensure Justice and Liberty? That is, quite simply, what our government should be limited to.

Unfortunately, since 1788, "Is" and "Should Be" have often found themselves at odds, both in this country, and its individual states, partially because we have continually allowed the Federal Government to be the sole interpreter of the agreement imposed upon it by the states that formed it, leading to a dramatic imbalance of power nationally, and partially because of a lack of interest on the part of the people, to take action and involve themselves in these issues. It is important that we look to the constitution as a great document and example of what great minds once set down, as guidance, but, and I can not assert this more firmly, the Constitution of the United States is neither immutable, nor is it the final word, in any matter. Common Sense, (and not just this kind, though it is a start) in the present era, though often difficult to locate, should always be the final word and the supreme guidance set before our actions. Though I mean it with the utmost respect, the Constitution of the United States is just a piece of paper, and if it is used to justify tyranny or injustice over the people or the states, it should be torn asunder as quickly as the tyrants that use it as a shield. The Individual States have the sole power to revise or abandon it (and as a logical extension, to question and check its advances), and the people have the sole power over the states. Two Hundred and Twenty + Years of bickering and erosion and bill-drafting can never be expected to bind the people or their representatives and stop the righting of wrongs, when the obligations and force of Liberty, being more powerful than any words, can so easily can free them to continue in their just campaign 

As Jefferson stated in the HBO series John Adams, ”[the constitution] could prove a breach in the integrity of our revolutionary ideals through which would pour the forces of reaction” and, in the end, re-institute the very tyrannies they had fought to protect themselves from.

"I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to its laws and judgments than one independent nation has the right to command another"

Much more important than the words contained in the constitution, is the intent behind its creation, that men shall, for the first time in history, since the beginning of civilization, rule solely over themselves, as equals, in balanced and just form, protected by the rule of law. The constitution serves to protect those ideas, and it must never be allowed to be used to protect the will of those who do otherwise, and seek to rule over men as vassals.

Today we suffer not only by the mistakes of our legislatures and courts, but of all the legislatures and courts there have ever been in this country. This can be easily be interpreted as Generational Tyranny, no matter how great the original intentions were in the laying its foundation.

(for a more accurate and [imho] less quotable and theatrical version of Jefferson's opinions, and radical solutions, see the original words here)

I hope that the individual states will do the right thing, but it remains to be seen, what, exactly, their commitments on the subject may be, and in our delicate balance of power, if the states fail to act to correct an injustice, once identified by the people, the responsibility to do so falls solely upon the source of all legitimate political power, the people themselves, who operate neither with the balance, nor the legal delicacy of the State. If there is a federal injustice, that injustice, in all good reasoning, must be removed, and the Courts, The Legislatures, and the States are by far the best, but by no means the last, force with which to do so.

After all, as John Kennedy pointed out in 1962: 
"those who make peaceful revolution impossible will make violent revolution inevitable"

Godspeed, Citizens.


Jay21 said...

Excellent post on the theory, of which I wholeheartly agree with. The surrendering of our liberties over the past 150+ years, to the leviathon I fear cannot be reclaimed in our lifetime. Your closing quote by Kennedy fits perfectly. My fear is that the states (et al)are destined to falter if not fail in this due to the complacency of their respective citizens. It reminds me of one of my favorite movie line: "The world will know that few stood against many, that free men stood againt a tyrant." (Leonidas, 300)It was meant to symbolize the momentum that grew from the sacrifice of a Spartan King that fueld a country to find their fire again. They fought and won. In your original post you alluded to the 77 that died in Texas, no rally was made amongst the general population. I fear our numbers needed today would be in the tens of thousands to rally that fire. But in order to make the stand we would be trated as the isolationist, terrorists zealots the press would kill to create. By making the stand required to lead a nation, we are being forced to move to the fringe of that nation. It is good to know that men like you share a common goal, may Lliberty one day reign again in America.

Vistonie said...

Nicely said Rev!

Although I'd rather not put myself, the Constitution, and a shredder in the same room, "... the Constitution of the United States is just a piece of paper" is perfectly penned. We often assume instruments such as the Constitution, the congress, or even the presidential seat to be more then just the mechanics of democracy. The power that institutments have is the power that We The People have given to them. Here are some corrosponding thoughts and sources intended for an article more than likely never to be written.

Bad for Democracy, by Dana D. Nelson, works with the same phenomenon, while she targets the presidential seat, her arguments could easily be re-aimed towards any congressional power. She points out that america seems to believe that if given enough power 'get the job done' that the president (any president) could fill the ridiculous expectations that america has of a president... that in time of crisis we easily hand over presidential powers expecting that this one man the the backbone for all of democracy that america believes that if we just put the right man into power that democracy will reign she asks "why do people feel better and safer when the president says that he is at the helm manning the ship, rather than when we are so evidently doing the work ourselves?"

Radical Democracy, by C. Douglas Lummis. In the first chapter of this book Lummis points out the we repeatedly personify the machines and mechanisms of democracy as democracy it'self he notes that "... it is an error to refer to institutions as if there were synonymous with the condition they are intended to promote"

Democracy is a not just a form of large scale government (quite the opposite if we've learned anything) but rather the mindset of a population; in order to maintain a democratic government, we must not only want to govern ourselves but be willing to do so. It is truly difficult to empower people who do not want the responsiblity or assume that they have already claimed it. If We The People continue to believe that the founders have completed the work for us, we will never be free to govern ourselves. Democracy is power of the people and We The People must remain vigilant and organized in order to maintain that power.

"You can never have a revolution in order to establish a democracy. You must have a democracy in order to have a revolution." G.K. Chesterton