The Paternal Power

I’m sure most people remember how free they felt the day the left home and lived on their own. At first it might have seemed a bit scary because you had to pay bills and survive independently of your parents but after a while you felt a new sense of freedom in your own life. You may not have realized this but what you did is that you have freed yourself from the paternal power of your parents.

The paternal power that your parents had was well established since you were born because they had to take care of you. While they were taking care of you you were dependent on them and this gave your parents a sense of power over your being. This is why your parents believe they have a right to control what you do with your life while they are taking care of you and the expression ‘under my house…blah…blah…blah’ exist.

The one thing that many political philosophers such as John Locke were dealing with at the time was the paternal power of the state. Monarchs were not magistrates who executed the law but seen as parents who assumed they had control over you in the same way a parent does over a child. The king was responsible for your welfare and survival which turned each citizen into a personal ward of the king. This established the same relationship you had with your parents when you lived with them between the king and society.

Details

Courts aren’t the final arbiter

Opponents of state sovereignty and the states’ power to nullify unconstitutional law argue that federal courts have held nullification unconstitutional.

Jillian Rayfield, in a brilliantly unbiased article *insert sarcastic tone* on TMPDC.com writes:

This “tenther” group touts state sovereignty and nullification — the idea that a state can override a federal law it deems unconstitutional (a notion that has been consistently rejected in federal courts). (Emphasis added)

But doesn’t it seem a little fox guarding the henhouseish to deem a branch of the federal government the final arbiter of what is or isn’t Constitutional? Can we really expect agents of the federal government to protect the states and the people from federal tyranny?

Details

Discussion: Original Jurisdiction

All of the information below is referenced by Publius-Huldah’s Blog, which uses it to conclude,

ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Arizona & Governor Brewer.

US Constitution, Article 3, Section 2

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (emphasis added)

Federalist 81 (Hamilton)

Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union.   The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.  ” Public ministers of every class are the immediate representatives of their sovereigns.   All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation.   Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them.   In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. (emphasis added)

US Code: TITLE 28 > PART IV > CHAPTER 81 > § 1251

§ 1251. Original jurisdiction

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens. (emphasis added)

Federalist 78 (Hamilton)

Details

Federal Judge Allows 10th Amendment Obamacare Suit to Proceed

Writes Ilya Somin at Volokh: Federal District Judge Henry Hudson’s opinion refusing to dismiss Virginia’s lawsuit challenging the constitutionality of the Obama health care plan has several interesting aspects. The suit focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a…

Details

Is Obama Care Illegal?

Well, of course it is…but Dom Armentano makes an interesting case that under status quo, it’s not – but yet – still horribly immoral and wrong. Here’s an excerpt: To find the mandates in Obama Care illegal and, indeed, to roll back the bulk of economic regulation on business, would require a radical rethinking of…

Details

Federal Court Makes Rare Ruling in Favor of the 10th Amendment

A Federal Judge today ruled in favor of the Tenth Amendment, which is an unusually rare result. What was the issue? DOMA and gay marriage. From the WSJ blog:

U.S. District Judge Joseph Tauro ruled that the federal Defense of Marriage Act, which prevents the federal government from giving pension and other benefits to same sex couples, is unconstitutional, reports the Associated Press.

Tauro wrote that the 1996 law ran afoul of the Constitution’s Tenth Amendment. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment,” Tauro wrote.

The problem, though, is that they don’t apply this same principle to everything. They should – and need to.

A few quick points.

Details

Standoff in Hawaii: Census Taker Arrested

From the Hawaii Tribune-Herald: A battle is brewing between the state and federal governments over a Census taker arrested in Puna for misdemeanor trespassing. The U.S. Attorney’s office filed papers Thursday in federal court in Honolulu to take the case of 57-year-old Russell Haas out of Hilo District Court. That will pit the feds against…

Details

Disposing the Doctrine of Judicial Supremacy

In addition to Robert Nagel’s column on rejecting judicial remedies for our political disagreements (posted earlier on the Tenther blog), National Review Online has also treated us to two columns by Prof. Robert Lowry Clinton. The first, “Judicial Supremacy and the Constitution,” disposes of the doctrine of judicial supremacy by looking at the Supreme Court’s…

Details

Against Judicial Supremacy

Much has been made of the coalition of state attorneys-general suing the federal government over the constitutionality of the recently enacted health care bill. But while many of us are happy to see the state governments taking some form of action to preserve their powers and to protect the liberties of their citizens from federal…

Details