Who Decides: part two

In Part One, I discussed the importance of “who decides” what is constitutional, and what is not.  Conventional wisdom says that the Supreme Court has long been recognized to have that power.  If you haven’t read part one, follow this link to read it here.

Now I will give my reasons for why that power does NOT reside solely with the Court created by the Constitution.

Let us begin with the preamble to the Bill Of Rights which begins;

“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”[Emphasis added]

This suggests that there was concern about a central government abusing its powers from a number of states.  In fact many people have heard of the “Federalist Papers” which were a series of essays written to sell the public on the idea of ratifying the constitution.  Many of the Articles were written to answer specific criticisms of the Constitution, such as those raised by Robert Yates and others dubiously named “Anti Federalists”.  Gary Galles from the Mises Institute wrote an article on the Anti-Federalist Papers where he writes;

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Who Decides: part one

The Denver post reported this morning that US District Judge Roger Vinson ruled the Health Care Reform law was unconstitutional.  Read the complete article here, but here are some excerpts I want to cover.

The judge’s ruling produced an even split in federal court decisions so far on the health care law, mirroring enduring divisions among the public. Two judges had previously upheld the law, both Democratic appointees. A Republican appointee in Virginia had ruled against it.

We have, it seems, turned the United States Constitution into a political football.  Where elections determine the interpretation of the constitution, and we are ruled by the whims of the electorate instead of by law.  The difference can simply be illustrated as a lynch mob vs. a jury trial.  The constitution ‘should’ protect us from power grabs from either party, including the Patriot Act and Real ID passed by Republicans, but we have allowed ourselves to be docile while we await the decision of our betters.

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in Pursuance thereof

Several states have filled bills opposing the Patient Protection and Affordable Care Act, and a few like Wyoming and Maine have included penalties for Federal Agents who attempt to enforce a law the state claims is unconstitutional.  It should not be surprising that there are those who oppose these ideas.  The Tenth Amendment has become interesting, and the debate will be fierce.  It is incumbent on those of us who favor checks and balances as a safeguard to essential liberty as cumbersome as it may be over the expediency of a totalitarian system to be able to articulate the message, and calmly refute all the screams of the ‘status quo’ who are shocked and angry that this debate has been opened up again.

NPR posted on its website an editorial by Christopher Weaver against these proposed laws.  The opinion piece really had no substance and is not really even worth checking out which is why I am not providing a link, but Christopher introduces an argument that I feel will be a keynote argument against these types of legislation: The Supremacy Clause.   Mr. Weaver cites an e-mail he received from Timothy Jost, a Washington and Lee University law professor; “This is blatantly, flagrantly unconstitutional. Federal law is supreme to state law and states cannot punish its enforcement.”  as his proof that any such law is unfounded.

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10th Amendment Headlines

Jon Rappoport of News With Views has a story up about the proposed Texas bill that would Nullify Obamacare.  Jon is favorable to the idea summed up in this paragraph.

“If enough illegal federal laws are nullified by enough states, the emperor is going to look naked, because he is. He’s taxing people to pay for a whole host of laws that are unconstitutional. He keeps saying he needs more money, and it’s obvious this is a lie. What he really needs is less power. What he really needs is honest adherence to the Constitution. He gave all that up a long time ago.”

 

Chris Woodard of One News Now has a story about Tenth Amendment Legislation being introduced in the Senate by Senator Roger Wicker (R-Mississippi). 

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Colorado Uniform Enumerated Powers Act

I hear a lot of people in the tea Party movement talk about how the Federal Government has ignored the Constitution, and we need to get back to that Constitution as the Supreme Governing Document of our nation.  We at the Tenth Amendment Center have developed some model legislation, here is one example.

To require the federal government to specify the source of authority under the United States Constitution for the enactment of laws, and for other purposes.

SECTION 1. LEGISLATIVE FINDINGS

The legislature of the State of Colorado finds that,

1. The People of the Several States by virtue of their mutual compact created the federal government, as documented in the United States Constitution;

2. The People of the Several States set forth in the Constitution those powers which the several States delegated to the federal government;

3. The legislative powers which the the People of the Several States delegated to the federal government are set forth in the Constitution of the United States;

4. By virtue of the Tenth Amendment to the Constitution set forth in the Bill of Rights, the People of the Several States reserved to themselves, and to the People, all powers which were neither specifically delegated to the federal government in the Constitution nor expressly prohibited to the States therein;

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