# Think Tank > U.S. Constitution >  Do federal laws trump State laws?

## robertwerden

It is my understanding that unless it is in the Constitution it is not enforceable at the State level if the State decides to flex it's 10th Amendment right. Is there a specific part of the Constitution, or Supreme court ruling that I can reference to make this argument?

I seem to go round and round with statists who think the government knows best.

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## FrankRep

No.

*9th Amendment:*

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

*10th Amendment:*

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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## MelissaWV

Technically, no.

In practice, the states are so beholden to the Government that they bow to Federal statutes more often than not.

The best example of this --- that many of us are old enough to remember, I think --- is the drinking age.

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## FrankRep

> I seem to go round and round with statists who think the government knows best.


If you're talking to a Republican Statist: Talk about ObamaCare Nullification. 

If you're talking to a Democratic Statist: Talk about Gay Marriage at a state level


You'll win the argument.

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## BAllen

No.

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## heavenlyboy34

No.

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## robertwerden

Why do we even worry about things like an assault weapons ban if a State can just ignore it? Is it just the mental conditioning the feds have brain washed us with?

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## Root

> Technically, no.
> 
> In practice, the states are so beholden to the Government that they bow to Federal statutes more often than not.
> 
> The best example of this --- that many of us are old enough to remember, I think --- is the drinking age.


I am under the impression (and I don't rule out that I could be wrong) that the States often buy (literally) into the federal tyranny because they don't want to risk getting cut out of federal "funding".

Edit:  that's exactly how they got away with the drinking age law. Wasn't a big part of the Obamacare SCOTUS decision that the fedCoats could not withhold funds for states who didnt set up exchanges?

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## Acala

Proper Federal laws, those authorized by the powers enumerated in the Constitution, trump state laws pursuant to the Supremacy clause.  However, states can leave the union and strike out on their own.

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## kcchiefs6465

> Proper Federal laws, those authorized by the powers enumerated in the Constitution, trump state laws pursuant to the Supremacy clause.  However, states can leave the union and strike out on their own.


Can they?

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## kcchiefs6465

//

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## Weston White

Under the doctrine of _federal supremacy_ federal law preempts the laws of each and every state so far as such public laws are established within the ‘necessary and proper’ breadth of our U.S. Constitution.

Recall our Preamble, it is the intent and purpose of our national government to: (I) form a more perfect union, (II) establish justice, (III) insure domestic tranquility, (IV) provide for America’s common defense, (V) promote America’s general welfare, and (VI) secure the blessings of liberty to ourselves and our posterity.

1.  Alexander Hamilton, within Federalist No. 84, Para. 12: “There remains but one other view of this matter to conclude the point.  The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS. …”

2.  The preamble to our national Bill of Rights (ratified 1791) states in-part the following: “…  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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.  …”  Hence, actions by the federal government must regard our Bill of Rights.

3.  The government of the United States of America and of the several states are legitimate and proper to function only under the fundamentals of a republic as stipulated by A.IV,S.4,C.1 of our U.S. Constitution and so conferred in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638 (1943): “One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”  Hence, through our covenanted due process, habeas corpus, redress, suffrage, et al, the inherent freedoms, defenses, and liberties of the individual person to life, estate, family, and personalty are as omnipresent and irrevocable, as the same are unalienable.  See also: Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

4.  In City of Boerne v. Flores, 521 U.S. 507, 518-519 (1997): “It is also true, however, that “[a]s broad as the congressional enforcement power is, it is not unlimited.”  Oregon v. Mitchell, supra, at 128 (opinion of Black, J.).  …

Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause.  Congress does not enforce a constitutional right by changing what the right is.  It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation.  …”

5.  United States v. Butler, 297 U.S. 1, 62-63 (1936): “There should be no misunderstanding as to the function of this court in such a case.  It is sometimes said that the court assumes a power to overrule or control the action of the people's representatives.  This is a misconception.  The Constitution is the supreme law of the land ordained and established by the people.  All legislation must conform to the principles it lays down.  When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the Government has only one duty -- to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.  All the court does, or can do, is to announce its considered judgment upon the question.”

6.  Legislative empowerment to craft and ratify public law has been served proper clarification in Eisner v. Macomber, 252 U.S. 189, 206 (1920): “…  Congress cannot by any definition it may adopt conclude the matter, since it cannot by legislation alter the Constitution, from which alone it derives its power to legislate, and within whose limitations alone that power can be lawfully exercised.”  See also: Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330, 346-347 (1935).

7.  As by Alexander Hamilton’s statements within Federalist Paper No. 83, Para. 7: “…  The plan of the convention declares that the power of Congress, or, in other words, of the NATIONAL LEGISLATURE, shall extend to certain enumerated cases.  This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.”

8.  As by Alexander Hamilton’s statements within Federalist Paper No. 78, Para. 15: “…and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.”

9.  As by James Madison’s statements within Federalist Paper No. 46, Para. 8: “…that the powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union…”

10.  Norton v. Shelby County, 118 U.S. 425, 442 (1886): “…  It is difficult to meet it by any argument beyond this statement: an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.”

11.  Marbury v. Madison, 5 U.S. 137, 176-177 (1803): “…  It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground.  The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. 

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. 

This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society.  It is not therefore to be lost sight of in the further consideration of this subject.”

12.  As further constituted by Hale v. Henkel, 201 U.S. 43, 88 (1906) in quoting Mr. Justice Bradley in Boyd v. United States, 116 U.S. 616, 635 (1886): “It may be that it… is the obnoxious thing in its mildest and least repulsive form, but illegitimate and unconstitutional practices get their first footing in that way -- namely, by silent approaches and slight deviations from legal modes of procedure.  This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed.  A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance.  It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon.  Their motto should be obsta principiis.”

13.  Although privacy rights case, however is the same, idem, having been acknowledged in Olmstead v. United States, 277 U.S. 438, 478-479 (1928): “The protection guaranteed by the Amendments is much broader in scope.  The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness.  They recognized the significance of man's spiritual nature, of his feelings, and of his intellect.  They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.  They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.  They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.  To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.  And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

…  Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

14.  The the instant matter had previously been eloquently addressed by Thomas Jefferson: “… if there be any among us who would wish to dissolve this Union, or to change it’s republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it. I know indeed that some honest men fear that a republican government cannot be strong; that this government is not strong enough. but would the honest patriot, in the full tide of succesful experiment, abandon a government which has so far kept us free and firm, on the theoretic & visionary fear, that this government, the world’s best hope, may, by possibility, want energy to preserve itself? I trust not. I believe this, on the contrary the strongest government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order, as his own personal concern.—sometimes it is said that man can not be trusted with the government of himself. can he then be trusted with the government of others? or have we found angels, in the forms of kings, to govern him? Let history answer this question.” (The Papers of Thomas Jefferson, Volume 33: 17 February to 30 April 1801, Princeton University Press (2006), 143-8, Para. 2.)

15.  Moreover, the sum of this point has been prudently elaborated by our jurist Forebearer Thomas Jefferson; The Papers of Thomas Jefferson, Volume 33: 17 February to 30 April 1801, Princeton University Press (2006), 143-8, Para. 3: “Let us then, with courage and confidence, pursue our own federal and republican principles; our attachment to union and representative government.  ...  Still one thing more, fellow citizens, a wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.  This is the sum of good government; and this is necessary to close the circle of our felicities.”

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## Acala

> Can they?


I don't see anything in the Constitution that says the Federal government can control the movement of a State out of the union so that power must be reserved in the States.

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## fisharmor

> I don't see anything in the Constitution that says the Federal government can control the movement of a State out of the union so that power must be reserved in the States.


Nailed it.... since 1861 at least, the answer to the OP is a resounding "yes".

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## osan

> It is my understanding that unless it is in the Constitution it is not enforceable at the State level if the State decides to flex it's 10th Amendment right. Is there a specific part of the Constitution, or Supreme court ruling that I can reference to make this argument?
> 
> I seem to go round and round with statists who think the government knows best.


The  Constitution is a mess.

The USA is a mess.

The human race is a mess.

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## erowe1

> I don't see anything in the Constitution that says the Federal government can control the movement of a State out of the union so that power must be reserved in the States.


Ok. Well then. If it's not in the Constitution, I guess that settles it.

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## Weston White

> Ok. Well then. If it's not in the Constitution, I guess that settles it.


But unless a majority of states agree to secede together, guess what the United States is going to claim as its brand new possession the following month after it embargos and then its military invades?

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## Sonny Tufts

> It is my understanding that unless it is in the Constitution it is not enforceable at the State level if the State decides to flex it's 10th Amendment right. Is there a specific part of the Constitution, or Supreme court ruling that I can reference to make this argument?


With regard to secession, there is a Supreme Court decision that says a State cannot legally secede -- Texas v. White, 74 U.S. 700 (1869).

http://www.law.cornell.edu/supct/htm...4_0700_ZO.html

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## Weston White

> With regard to secession, there is a Supreme Court decision that says a State cannot legally secede -- Texas v. White, 74 U.S. 700 (1869).
> 
> http://www.law.cornell.edu/supct/htm...4_0700_ZO.html


You cite to _Texas v. White_, which is called into question immediately as to President Grant's readmission of the seceded state, when it apparently had no right to--a paradox.  We can just as readily cite to _Marbury v. Madison_ as to the point of strict constitutionalism.  Furthermore, _Texas v. White_ only stated that states could not secede 'unilaterally', but otherwise could.

And surely King George III held the same notion with regard to British America.  However, if such were actually the case then there would have never been a necessity for a Civil War. In any case it is not really for the judicial system to make that determination, it is for the residents of each state individually; for once a state has officially seceded they are no longer under the authority of the federal government or the jurisdiction of its appendages. Get enough states to secede and America will surely witness a second civil war take place--in an instant. The right to secede is reserved to the several states within both our Declaration of Independence and Bill of Rights.

A personal and private letter from Thomas Jefferson addressed to William Branch Giles, Monticello (December 26, 1825):



> "I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.  . . .  And what is our resource for the preservation of the constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the combination, some from incorrect views of government, some from corrupt ones, sufficient voting together to out-number the sound parts; and with majorities only of one, two, or three, bold enough to go forward in defiance. Are we then to stand to our arms, with the hot-headed Georgian? No. That must be the last resource, not to be thought of until much longer and greater sufferings. If every infraction of a compact of so many parties is to be resisted at once, as a dissolution of it, none can ever be formed which would last one year. We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents; and separate from our companions only when the sole alternatives left, are the dissolution of our Union with them, or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation. But in the meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of our yeomanry. This will be to them a next best blessing to the monarchy of their first aim, and perhaps the surest stepping-stone to it."


Moreover the right to secede derives from the Social Contract and Compact Theory of Government.  Ergo, this right to do so has been preseved under the IX and X Amendments to the U.S. Constitution--while first and foremost within our Declaration of Independence: 




> "When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.  . . .   —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government."


Our Union is effectively a _compact_ between the several states and their representatives thereof and not the national government itself (a distinction worthy of realization)--compacts can be terminated by those party to it at their discretion and with just cause.  The Pledge of Allegiance (written by an avid socialist, Francis Bellamy) is not superior to any of the aforementioned.

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## pathtofreedom

Who care's if something is constitutional a 95% tax is constitutional.

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## Weston White

> Who care's if something is constitutional a 95% tax is constitutional.


_True, This! —
Beneath the rule of men entirely great
The pen is mightier than the sword. Behold
The arch-enchanters wand! — itself is nothing! —
But taking sorcery from the master-hand
To paralyse the Cæsars, and to strike
The loud earth breathless! — Take away the sword —

States can be saved without it!_ — Edward Bulwer-Lytton, 1839, _Richelieu_ (Conspiracy)

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## heavenlyboy34

> You cite to _Texas v. White_, which is called into question immediately as to President Grant's readmission of the seceded state, when it apparently had no right to--a paradox.  We can just as readily cite to _Marbury v. Madison_ as to the point of strict constitutionalism.  Furthermore, _Texas v. White_ only stated that states could not secede 'unilaterally', but otherwise could.
> 
> And surely King George III held the same notion with regard to British America.  However, if such were actually the case then there would have never been a necessity for a Civil War. In any case it is not really for the judicial system to make that determination, it is for the residents of each state individually; for once a state has officially seceded they are no longer under the authority of the federal government or the jurisdiction of its appendages. Get enough states to secede and America will surely witness a second civil war take place--in an instant. The right to secede is reserved to the several states within both our Declaration of Independence and Bill of Rights.
> 
> A personal and private letter from Thomas Jefferson addressed to William Branch Giles, Monticello (December 26, 1825):
> 
> 
> Moreover the right to secede derives from the Social Contract and Compact Theory of Government.  Ergo, this right to do so has been preseved under the IX and X Amendments to the U.S. Constitution--while first and foremost within our Declaration of Independence: 
> 
> ...


A great intellectual/philosophical exercise.  In practice, though, without sufficient guns and resources, actually exercising state/individual rights against the federal regime is naive at best and suicidal at worst.

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## heavenlyboy34

> Who care's if something is constitutional a 95% tax is constitutional.


Indeed!  The Constitutionalists always confuse "is" and "ought" in regards to this kind of thing.

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## mrsat_98

Louisiana Art 1 §26. State Sovereignty

    Section 26. The people of this state have the sole and exclusive right of governing themselves as a free and sovereign state; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right, pertaining thereto, *which is not, or may not hereafter be, by them expressly delegated to the United States of America in congress assembled.
*

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## Laughing Man

Yes, federal laws trump state laws and until the second half of the 20th century, some international laws trumped state laws.

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## WhistlinDave

In practice, there may be some fighting over what the answer is before it's really settled.  The 9th and 10th Amendments seem very clear, but the Federal government right now is trying to claim Federal law is ALWAYS supreme (even when unconsitutional), or at least it seems that's what AG Eric Holder is saying to Kansas regarding their Federal gun control nullification that they just passed.  

Kansas promptly fired back a couple letters to Holder basically saying "You're wrong, so go ahead and take us to court, chump."  There's discussion of that here in case anyone missed it: http://www.ronpaulforums.com/showthr...ms-Freedom-Act

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## Laughing Man

> In practice, there may be some fighting over what the answer is before it's really settled.  The 9th and 10th Amendments seem very clear, but the Federal government right now is trying to claim Federal law is ALWAYS supreme (even when unconsitutional), or at least it seems that's what AG Eric Holder is saying to Kansas regarding their Federal gun control nullification that they just passed.


It's not really an argument. The Constitution is supreme law of the land. Federal law is always supreme, it is only a question of a law being constitutional or unconstitutional. That was one of the points of the Constitution, to create a uniform national legal code along with answering fiscal questions surrounding debt and tariffs and the establishment of a standing army. It is meant to be a document that centralizes power on the national stage.

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## Weston White

> It's not really an argument. The Constitution is supreme law of the land. Federal law is always supreme, it is only a question of a law being constitutional or unconstitutional. That was one of the points of the Constitution, to create a uniform national legal code along with answering fiscal questions surrounding debt and tariffs and the establishment of a standing army. It is meant to be a document that centralizes power on the national stage.


I am compelled to disagree with those assertions.  For, if such were at all true, then both the IX and X Amendment to our Bill of Rights would serve zero purposeand moreover, neither would any of the other amendments included within our Bill of Rights nor would our Creator granted _unalienable rights_.

While our U.S. Constitution is the supreme law throughout our landas our national undergirding, it only is so far as it is intended to exercise federally enumerated powers, which are therein specifically defined.  Still, the individual states have retained their total sovereignty in all matters not specifically enumerated as being within the breadth of federal supremacy.

So far as to the impetus of those enumerated powers by the federal government is concerned, whether being constitutional or unconstitutional, such fully bears upon the necessity and properness of whatever public laws at the national level.

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## Laughing Man

> I am compelled to disagree with those assertions.  For, if such were at all true, then both the IX and X Amendment to our Bill of Rights would serve zero purpose—and moreover, neither would any of the other amendments included within our Bill of Rights nor would our Creator granted _unalienable rights_.
> 
> While our U.S. Constitution is the supreme law throughout our land—as our national undergirding, it only is so far as it is intended to exercise federally enumerated powers, which are therein specifically defined.  Still, the individual states have retained their total sovereignty in all matters not specifically enumerated as being within the breadth of federal supremacy.
> 
> So far as to the impetus of those enumerated powers by the federal government is concerned, whether being constitutional or unconstitutional, such fully bears upon the necessity and properness of whatever public laws at the national level.


Supremacy clause states that the Constitution, federal statutes and US treaties are supreme law of the land.

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## Weston White

> Supremacy clause states that the Constitution, federal statutes and US treaties are supreme law of the land.


Actually, that is per our U.S. Constitution, A.VI,C.2:

"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, anything in the Constitution or laws of any State to the contrary notwithstanding."

http://www.hdv.defendindependence.us...ery=article_VI

Hence, just because a public statute has been ratified or a treaty negotiated on behalf of the federal government does not self-validate the same as a supreme law beyond the authority of the several states.  Neither legislation nor treaty may be used to alter or circumvent the established breadth of our U.S. Constitution.

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## Laughing Man

> Actually, that is per our U.S. Constitution, A.VI,C.2:
> 
> "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, anything in the Constitution or laws of any State to the contrary notwithstanding."
> 
> http://www.hdv.defendindependence.us...ery=article_VI
> 
> Hence, just because a public statute has been ratified or a treaty negotiated on behalf of the federal government does not self-validate the same as a supreme law beyond the authority of the several states.  Neither legislation nor treaty may be used to alter or circumvent the established breadth of our U.S. Constitution.


If a law or treaty is created by the federal government and its constitutionally is not challenged in the supreme court then it is the supreme law of the land. It says that in the article. Are you trying to say there are instance in which federal law is not supreme? Which instances are these? Give examples.

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## Weston White

> If a law or treaty is created by the federal government and its constitutionally is not challenged in the supreme court then it is the supreme law of the land. It says that in the article. Are you trying to say there are instance in which federal law is not supreme? Which instances are these? Give examples.


Simply, it is on its face, _ultra vires_. It is known as _nullification_ and it's reserved to both the several states and the residents thereof, so very reinforced by our Amendments IX and X within our Bill of Rights.  A historical example includes South Carolina's 'Ordinance of Nullification' of 1832 (thereafter hastily repealed under the threat of President Jackson's 'Nullification Proclamation' of 1832).


“_We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,_”

*-- Declaration of Independence*


“_In the United States, sovereignty resides in the people, who act through the organs established by the Constitution. ... The Congress, as the instrumentality of sovereignty, is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains. The Congress cannot invoke the sovereign power of the people to override their will as thus declared. The powers conferred upon the Congress are harmonious. The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations._”

*-- Perry v. United States, 294 US 331, 353, (1934)*


“_… It is difficult to meet it by any argument beyond this statement: an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed._”

*-- Norton v. Shelby County, 118 U.S. 425, 442, (1886)*


“_The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it …

A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it._”

*-- 16 Am. Jur. 2d, Section 177; later 2d, Section 256*

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## Sonny Tufts

The idea that a State can unilaterally determine which federal laws are constitutional is an interesting question in political theory, but it has no legal basis whatsoever.  Or do you think that George Wallace was within his rights to stand in the doorway at the University of Alabama and attempt to deny the admission of a black student?

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## Weston White

> The idea that a State can unilaterally determine which federal laws are constitutional is an interesting question in political theory, but it has no legal basis whatsoever.  Or do you think that George Wallace was within his rights to stand in the doorway at the University of Alabama and attempt to deny the admission of a black student?


On the contrary, the aforementioned legal basis is vastly fundamental. George Wallace was well within his rights to peacefully protest his issues, sure. Other than that, an acting governor making a public pledge to commence an act of protest really has nothing to do with a state decreeing federal legislation to be invalid and striking it down. Many states are already making affirmations to not implement aspects of 'Obamacare' and pending gun legislation, for example.

----------


## heavenlyboy34

> Technically, no.
> 
> In practice, the states are so beholden to the Government that they bow to Federal statutes more often than not.
> 
> The best example of this --- that many of us are old enough to remember, I think --- is the drinking age.


This^^  At best, the Feds would take away funding.  At worst, military occupation.

----------


## Laughing Man

> Simply, it is on its face, _ultra vires_. It is known as _nullification_ and it's reserved to both the several states and the residents thereof, so very reinforced by our Amendments IX and X within our Bill of Rights.  A historical example includes South Carolina's 'Ordinance of Nullification' of 1832 (thereafter hastily repealed under the threat of President Jackson's 'Nullification Proclamation' of 1832).
> 
> 
> “_We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,_”
> 
> *-- Declaration of Independence*
> 
> 
> “_In the United States, sovereignty resides in the people, who act through the organs established by the Constitution. ... The Congress, as the instrumentality of sovereignty, is endowed with certain powers to be exerted on behalf of the people in the manner and with the effect the Constitution ordains. The Congress cannot invoke the sovereign power of the people to override their will as thus declared. The powers conferred upon the Congress are harmonious. The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations._”
> ...


All of what you just said, is simply the other side of what I just said. Unconstitutional federal laws are not laws. Remember me saying this, one post ago:

'If a law or treaty is created by the federal government and its constitutionally is not challenged in the supreme court then it is the supreme law of the land.'

Just wikipedia Supremacy Clause and you will see all the court cases which validate my argument that federal law is surpreme law of the land as long as it is deemed constitutional. 

Am I explaining myself clearly?

----------


## Weston White

> All of what you just said, is simply the other side of what I just said. Unconstitutional federal laws are not laws. Remember me saying this, one post ago:
> 
> 'If a law or treaty is created by the federal government and its constitutionally is not challenged in the supreme court then it is the supreme law of the land.'
> 
> Just wikipedia Supremacy Clause and you will see all the court cases which validate my argument that federal law is supreme law of the land as long as it is deemed constitutional. 
> 
> Am I explaining myself clearly?


But you’re attempting to justify that any federal legislation is and remains “the supreme law of the land” until it has been found unconstitutional by the U.S. Supreme Court.  I am simply clarifying that the states individually possess power within themselves to void federal legislation they deem improper or unjust or immoral (i.e., unconstitutional); that it is not only for the states themselves to file against the federal government in court for a finding on the matter of constitutionality—more properly it would be for the DOJ to make a case against the state and prove the state’s decree of nullification is without merit under law.

Albeit, it is very true that federal legislation is supreme above all other legislation when in conflict, but that does not preclude any state from nullifying federal legislation when their own people have moved to justly nullify such national laws within their own borders (e.g., in addition to the above examples, several states are beginning to rail-back against the contrived activities and invasive practices of the DHS’ TSA).

***  For instance, say that next year it becomes national law that possession of any class of firearm, ammunition, and magazines by any “civilian” is a federal felony.  Texas could put the federal government on notice that they are enforcing their X Amendment protection within the State of Texas to make any such enforcement within the state by any person or by any government agent or employee an illegal act punishable by imprisonment and fine, represented within a newly ratified public act passed by their state legislature.  The federal government could then either file suit against Texas, turn their head and focus only on whatever remaining cooperating states, or muster the U.S. Military to invade or embargo Texas and shut down its government until it complies.  As well, Texas could in turn, file an injunction to cease and desist, call to arms its own state Militia to counter the invading U.S. Military forces, or file a counterclaim against the federal government.

----------


## Laughing Man

> But you’re attempting to justify that any federal legislation is and remains “the supreme law of the land” until it has been found unconstitutional by the U.S. Supreme Court.  I am simply clarifying that the states individually possess power within themselves to void federal legislation they deem improper or unjust or immoral (i.e., unconstitutional); that it is not only for the states themselves to file against the federal government in court for a finding on the matter of constitutionality—more properly it would be for the DOJ to make a case against the state and prove the state’s decree of nullification is without merit under law.
> 
> Albeit, it is very true that federal legislation is supreme above all other legislation when in conflict, but that does not preclude any state from nullifying federal legislation when their own people have moved to justly nullify such national laws within their own borders (e.g., in addition to the above examples, several states are beginning to rail-back against the contrived activities and invasive practices of the DHS’ TSA).
> 
> ***  For instance, say that next year it becomes national law that possession of any class of firearm, ammunition, and magazines by any “civilian” is a federal felony.  Texas could put the federal government on notice that they are enforcing their X Amendment protection within the State of Texas to make any such enforcement within the state by any person or by any government agent or employee an illegal act punishable by imprisonment and fine, represented within a newly ratified public act passed by their state legislature.  The federal government could then either file suit against Texas, turn their head and focus only on whatever remaining cooperating states, or muster the U.S. Military to invade or embargo Texas and shut down its government until it complies.  As well, Texas could in turn, file an injunction to cease and desist, call to arms its own state Militia to counter the invading U.S. Military forces, or file a counterclaim against the federal government.


It's not voiding the law. It's refusing to prosecute it. Federal agents in that state still prosecute the law, it is a federal law. It is like a cop giving you a warning instead of a ticket, speeding laws aren't voided by giving warnings or failing to distribute a citation, they are simply not acted upon. It is the job of the state, or more specifically the individual, to prove to the Supreme Court that the legislation created by Congress is unconstitutional. That is why you see cases like gay marriage/obamacare etc. going to the Supreme Court to validate the claim that a specific legislation is unconstitutional. 

By the way, your example uses the wrong amendment. It is not the tenth amendment. It's the fourteenth amendment. That is the amendment that deals specifically with interactions between government and individuals.

----------


## mike6623

> No.
> 
> *9th Amendment:*
> 
> The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
> 
> *10th Amendment:*
> 
> The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


I hate to sond like an idiot, but can you put this in easier to understand terms? There is so much in the Constitution that is not easy for the average to to understand.

----------


## Weston White

> It's not voiding the law. It's refusing to prosecute it. Federal agents in that state still prosecute the law, it is a federal law. It is like a cop giving you a warning instead of a ticket, speeding laws aren't voided by giving warnings or failing to distribute a citation, they are simply not acted upon. It is the job of the state, or more specifically the individual, to prove to the Supreme Court that the legislation created by Congress is unconstitutional. That is why you see cases like gay marriage/obamacare etc. going to the Supreme Court to validate the claim that a specific legislation is unconstitutional. 
> 
> By the way, your example uses the wrong amendment. It is not the tenth amendment. It's the fourteenth amendment. That is the amendment that deals specifically with interactions between government and individuals.



Correctly, it is voiding (i.e., nullifying) whatever federal legislation at the state level.  Sure it is still valid law nationally, at the federal level.  However, within that state enforcing said law would have been made into a criminal activity by that state’s own vested powers of ratifying public laws—so granted by the sovereignty of each state legislature.

The federal government has very, limited and distinct powers when making enforcement actions within the several states; while, it is for each county’s own DA’ Office to prosecute crimes within its jurisdiction.

Police officers are not lawmakers they are law enforcers.  You are really comparing nullification of a public law (i.e., a IX Amendment consideration) to discretionary enforcement of a public law (i.e., a XIV Amendment consideration).  Certainly, filing in court against the federal government is one option (perhaps the must prudent), but it is most definitely not the only option.  Also to note, a case cannot be decided upon within any court of law until the matter has reached what is referred to as _ripeness_.

The larger distinction in the cases you refer to, Obamacare (PPACA) and gay “rights” is that those were filed by individuals or private corporations and not by the public servants (“officials”) of any state.

In yet another example, recall the repeal of Prohibition (on alcohol).  During that period of time juries began the practice of enforcing their rights to _jury nullification_ at trial, stating to the courts that yes the defendant had violated the intent of the law, but that they find that law to be a bad law or otherwise invalid and refused to return a  guilty verdict against the defendant.  Soon after this had become a regular practice, the XXI Amendment was ratified to repeal the XVIII Amendment (namely due to Prohibition cases flooding the courts becoming by and large non-prosecutable).

I am not certain what you mean by your XIV Amendment reference.  The IX Amendment is to ensure the protection of non-enumerated individual rights; the X Amendment is to ensure protection of statehood sovereignty; and the XIV Amendment is (primarily) intended to ensure social equality or equal protections of the laws throughout every level of government (i.e., at the federal, state, and local levels).

In summation:  An unjust law (federal or otherwise) is no law, to any degree, whatsoever, and voids itself outright for it exists without the necessary grant of underlying lawful authority to have been crafted into existence and thrust upon the populace, in the first place.

----------


## LibertyEagle

> If you're talking to a Republican Statist: Talk about ObamaCare Nullification. 
> 
> If you're talking to a Democratic Statist: Talk about Gay Marriage at a state level
> 
> 
> You'll win the argument.


Oh noes, that would be "pandering".  Freedom is freedom and all that.  There is no need to pay any attention to your audience.  Don't you know that, Frank?

/s

----------


## FrankRep

> Oh noes, that would be "pandering".  Freedom is freedom and all that.  There is no need to pay any attention to your audience.  Don't you know that, Frank?
> 
> /s


Current libertarian strategy: Talk to Republican and Democrat statists about Heroin legalization.


Both reject you, I wonder why. :-p

----------


## Pericles

> The idea that a State can unilaterally determine which federal laws are constitutional is an interesting question in political theory, but it has no legal basis whatsoever.  Or do you think that George Wallace was within his rights to stand in the doorway at the University of Alabama and attempt to deny the admission of a black student?


The more interesting point of view is what happens when a majority of the states find a federal statute unconstitutional? More than half of the states were part of the Obamacare case before the SCOTUS, and the SCOTUS ruled against a majority of the states - very dangerous territory there ......

The majority of anti-federalist writing was on the consequences of Article VI, and the objections were supposed to be answered by the BoR and specifically the 9A and 10A, which were supposed to give the states and people the means to nullify unconstitutional laws, when the federal courts failed to do so.

----------


## Sonny Tufts

> the objections were supposed to be answered by the BoR and specifically the 9A and 10A, which were supposed to give the states and people the means to nullify unconstitutional laws, when the federal courts failed to do so.


The problem is that neither the 9th or the 10th says anything about nullification.  Given that 3/4 of the States could overturn an unconstitutional law by amending the Constitution, what justification is there for allowing a lesser number to take a shortcut?

----------


## erowe1

> The problem is that neither the 9th or the 10th says anything about nullification.  Given that 3/4 of the States could overturn an unconstitutional law by amending the Constitution, what justification is there for allowing a lesser number to take a shortcut?


If a law is unconstitutional, then an amendment isn't required, it's already unconstitutional without an amendment. And the supremacy clause explicitly only applies to laws that are constitutional.

----------


## Sonny Tufts

> If a law is unconstitutional, then an amendment isn't required, it's already unconstitutional without an amendment. And the supremacy clause explicitly only applies to laws that are constitutional.


An amendment is required if the States believe that a Supreme Court decision upholding the constitutionality of a statute was wrongly decided and that the law really is unconstitutional.  That's what the nullification debate is all about -- who gets to decide what's constitutional?

----------


## Weston White

> The problem is that neither the 9th or the 10th says anything about nullification.  Given that 3/4 of the States could overturn an unconstitutional law by amending the Constitution, what justification is there for allowing a lesser number to take a shortcut?


My goodness, how in the world did you ever manage to pass your Bar Examination?

Ergo, that is the blatantly plain inference of both the IX and XAmendments (e.g., _jury nullification_).

_Nullification_ (Merriam-Webster): “to make legally null and void; the action of a state impeding or attempting to prevent the operation and enforcement within its territory of a law of the United States”

“[The purpose of a written constitution is] _to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights._”
*—Notes on Virginia Q.XIII, Thomas Jefferson, 1782*

“_I consider the foundation of the Constitution as laid on this ground: That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.’ To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition._”
*—National Bank Opinion, Thomas Jefferson, 1791*

“_Whenever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.  . . . where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction …_”
*—Kentucky Resolutions, Thomas Jefferson, 1798*

Federalist Paper 45, Para. 7 (“The Alleged Danger From the Powers of the Union to the State Governments Considered”, James Madison): “_The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State._”

Federalist Paper 46, Para. 2 (“The Influence of the State and Federal Governments Compared”, James Madison): “_I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents._”

_United States v. Darby_, 312 U.S. 100, 124 (1941): “_The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers._” 

_Fry v. United States_, 421 U.S. 542, 547 n.7 (1975): “_The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system._” 

_National League of Cities v. Usery_, 426 U.S. 833 (1976): “_This Court has never doubted that there are limits upon the power of Congress to override state sovereignty, even when exercising its otherwise plenary powers to tax or to regulate commerce which are conferred by Art. I of the Constitution. In Wirtz, for example, the Court took care to assure the appellants that it had "ample power to prevent . . . ‘the utter destruction of the State as a sovereign political entity,'" which they feared. . . . In Lane County v. Oregon, 7 Wall. 71 (1869), his opinion for the Court said: Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States. But, in many articles of the Constitution, the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized.  . . .  In Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926), the Court likewise observed that "neither government may destroy the other nor curtail in any substantial manner the exercise of its powers._” 

_Gregory v. Ashcroft (90-50)_, 501 U.S. 452, 464 (1991): “_These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials. It is an authority that lies at `the heart of representative government.’ Ibid. It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States ‘guarantee[s] to every State in this Union a Republican Form of Government.’ U.S. Const., Art. IV, 4. .  . .  The authority of the people of the States to determine the qualifications of their government officials is, of course, not without limit. ..._”





> If a law is unconstitutional, then an amendment isn't required, it's already unconstitutional without an amendment. And the supremacy clause explicitly only applies to laws that are constitutional.


This, exactly! Wise.





> An amendment is required if the States believe that a Supreme Court decision upholding the constitutionality of a statute was wrongly decided and that the law really is unconstitutional.  That's what the nullification debate is all about -- who gets to decide what's constitutional?


Yes, this is one—and certainly is the most reassuring or avouching—of several options available to the several states; however, it is not the only option.  Please, reference that above and the last several prior posts for further reference on this issue.  Thank you.

----------


## erowe1

> An amendment is required if the States believe that a Supreme Court decision upholding the constitutionality of a statute was wrongly decided and that the law really is unconstitutional.  That's what the nullification debate is all about -- who gets to decide what's constitutional?


If it were the case that the Supreme Court did get to decide what was constitutional, then it would be the case that an amendment would be needed to undo their ruling.

But I don't accept the premise that the Supreme Court can do that.

----------


## Christian Liberty

> Can they?


According to the constitution and the rule of law, yes. 

According to the guys with enough ICBMs to wreck the world five times over.... no not really.

----------


## Christian Liberty

> If it were the case that the Supreme Court did get to decide what was constitutional, then it would be the case that an amendment would be needed to undo their ruling.
> 
> But I don't accept the premise that the Supreme Court can do that.


If they could do that, then they could just reinterpret the amendment at all...

When I mentioned to one teacher that SCOTUS doesn't actually care what the constitution says, I was asked "Then who gets to decide.  You?"

I don't really have an answer for that kind of question... but words mean things.  

I almost feel like I'm talking to a brick wall.  If it wasn't for his foreign policy, this guy would almost lean towards libertarian beliefs, so he's not irredeemable, but I don't know how to answer majoritarian arguments like that.  Either you're a relativst progressive (He thinks of himself as "Conservative" but I told him today that he's really just a moderate progressive) or you actually believe in the constitution (Well, or you're a libertarian, which means you probably actually do understand the constitution, but may disagree with it.)

----------


## erowe1

> If they could do that, then they could just reinterpret the amendment at all...
> 
> When I mentioned to one teacher that SCOTUS doesn't actually care what the constitution says, I was asked "Then who gets to decide.  You?"
> 
> I don't really have an answer for that kind of question... but words mean things.


One answer is that everyone in every branch of government is obligated to uphold the Constitution itself. They take oaths promising that. This would mean nothing if they could just do whatever they wanted, and leave it up to the Supreme Court to say if its constitutional (which is what most of them do right now).

Does that teacher think that the Supreme Court simply can't ever be wrong? Or maybe that there's really no such thing as wrong?

----------


## Sonny Tufts

> Does that teacher think that the Supreme Court simply can't ever be wrong? Or maybe that there's really no such thing as wrong?


You are confusing morality and legality.  Have some Supreme Court decisions been morally wrong?  Of course.  But the legal issue is who gets to decide whether a law comports with the Constitution, and under our system of government the answer is the Supreme Court.  You may not accept this premise, but it's been the law for over 200 years.

It should be noted, however, that this doesn't mean the Court is all-powerful.  Its decisions can be overridden by constitutional amendments or, occasionally, by a later Supreme Court.  The Court has no power to enforce its decisions, but must rely on the Executive Branch to do so.  Congress can even limit its appellate jurisdiction.

----------


## Christian Liberty

> One answer is that everyone in every branch of government is obligated to uphold the Constitution itself. They take oaths promising that. This would mean nothing if they could just do whatever they wanted, and leave it up to the Supreme Court to say if its constitutional (which is what most of them do right now).
> 
> Does that teacher think that the Supreme Court simply can't ever be wrong? Or maybe that there's really no such thing as wrong?


I don't know.  Maybe I should ask  him those specific questions.  This conversation made me recall that one... he's the second most libertarian leaning teacher I've met so far, and the one that is the most so I've never actually had a class with, and that one's a chem teacher so political issues don't come up nearly as often.  Honestly, this public affairs teacher (The one I said was the second most libertarian that I've met, and also the one who made those comments about SCOTUS) is one of the probably 1% of the population that would actually probably respect an anarchist position more than a minarchist one.  He's one of the probably very few people that actually caught the seeming contradiction between taxes being theft and not advocating anarchism.  He is a smart person, even if he's regularly wrong.  He's backing Rand right now, so maybe he's worth leaving alone, even though his biggest problem with Ron, and even Rand to some extent, is foreign policy... something I want to change...

Regarding SCOTUS specifically, he'll usually use clauses like "Necessary and Proper" and the elastic clause (Or are those the same thing... I can't remember and I'm not an expert) to argue that constitutional interpretation is subbjective.  He leans in my direction, but not far enough, when it comes to Federal power issues but he feels like if I say, and claim objectivity, that SCOTUS is wrong, that's equivalent to claiming to be a dictator.  I have claimed that if I was dictator he'd be more free than he is now, but that was more a sarcastic answer than a serious one.

I've tried to argue that words mean things, and that you can't just make up the meaning of words, which led him to use necessary and proper.

He's a bit of a "Devil's Advocate" type person, so he can argue a position more extremely opposed to  mine than he really is, but I still don't really have a way to objectively prove this argument wrong, or at least not any more than he already has.

----------


## Weston White

Here are a few relevent quotations from a small book entitled: The Second Amendment, David Barton, 2000:

_The whole of that Bill [of Rights] is a declaration of the rights of the people at large or considered as individuals. . . . [It] establishes  rights of the individual as inalienable._
(Albert Gallatin, The Papers of Albert Gallatin (Philadelphia: Historic Publications, c. 1969), microform, to Alexander Addison on October 7, 1789 [fn. 132])

_if a Bill of rights is violated, there every injured citizen may expect, and will have more complete redress, than an army of insurgents could give him.  No act can have the force of law against the Bill of Rights.  Every farmer ought to read it and learn its nature and value.  He will prize it more than his acres; for without it, another might reap where he sows._
(Independent Chronicle (Boston), February 22, 1787, Fisher Ames writing as Camillus [fn. 133])

_I believe that the great mass of the people who opposed it [the Constitution] disliked it because it did not contain effectual provisions against encroachments on particular rights. . . . But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government by excepting out the grant of power those cases in which the government ought not to act. . . . [E]very government should be disarmed of powers which trench upon those particular rights._
(Annals of Congress; The Debates and Proceedings (1834), Vol. I, pp. 450, 454, 458, James Madison on June 8, 1789 [fn. 136])

----------


## erowe1

> You are confusing morality and legality.  Have some Supreme Court decisions been morally wrong?  Of course.  But the legal issue is who gets to decide whether a law comports with the Constitution, and under our system of government the answer is the Supreme Court.  You may not accept this premise, but it's been the law for over 200 years.
> 
> It should be noted, however, that this doesn't mean the Court is all-powerful.  Its decisions can be overridden by constitutional amendments or, occasionally, by a later Supreme Court.  The Court has no power to enforce its decisions, but must rely on the Executive Branch to do so.  Congress can even limit its appellate jurisdiction.


No I'm not confusing those things. Is the Supreme Court somehow incapable of being wrong about what the law says? Of course not.

This may be a convention that a lot of people have followed for 200 years. But they were wrong to do so. For the most part this is just spineless members of other branches of government and state governments being unwilling to honor their oaths of office.

----------


## Sonny Tufts

> This may be a convention that a lot of people have followed for 200 years. But they were wrong to do so. For the most part this is just spineless members of other branches of government and state governments being unwilling to honor their oaths of office.


So would you have the legislatures be the judges of the constitutionality of their own enactments?

----------


## erowe1

> So would you have the legislatures be the judges of the constitutionality of their own enactments?


Absolutely. They are obligated to do that. It's part of their oath of office.

----------


## Sonny Tufts

> Absolutely. They are obligated to do that. It's part of their oath of office.


That's equivalent to allowing the fox to guard the henhouse.

----------


## erowe1

> That's equivalent to allowing the fox to guard the henhouse.


I'm not saying it's good or bad. I'd say having a government court determine the constitutionality of what the government does is also having the fox guard the henhouse.

But legislators take oaths not to make laws the Constitution does not empower them to make, and just having the Supreme Court tell them that there's something in the Constitution that isn't there doesn't make it so. Legislators who make unconstitutional laws are violating their oaths whether the Court says they are or not.

----------


## Sonny Tufts

> I'm not saying it's good or bad. I'd say having a government court determine the constitutionality of what the government does is also having the fox guard the henhouse.


Unlike the legislatures, the Supreme Court is under no political pressure from consituents to enact potentially unconstitutional laws or to uphold them once they're passed.  If all legislators were saints (constitutionally speaking) perhaps we wouldn't need judicial review, but it's quite clear they aren't and we do.

There's something to be said for checks and balances.

----------


## Weston White

Rather sophomoric reasoning, no?  It is sort of like asserting that the privatized Federal Reserve System with its nonconvertible stacks of green dyed paper actually relieves the federal government from the “burden” of playing financial politics in its monetary policies; for it only does so when one had prior inserted their head plumb up their bum, while it actually serves to covertly game those very policies.

The entire judiciary is open to corruption just as is all others in government, be it through bribery, extortion, blackmail; or past friendships, favors, or obligations; or partisanship; or receipt of insider information; oaths and commitments to fraternal memberships or brotherhoods; or their own personal motivations, interests, heart of hearts, beliefs, or agendas; etc.  Judges and Justices also want tickets to the annual lobbyist’s ballroom and year-round access to Pebble Beach.

The fact that nearly one-half of the Legislature are multi-millionaires, get away with paying little to no taxes and insider trading, and openly practice nepotism and cronyism, is by no means merely coincidental.  And you’re a damn bloody fool if you truly believe otherwise.

Our House is the first check and the Senate our second check; our United States President the third; adjudication is our fourth, fifth, and sixth checks; the will of the public through their guaranteed redress is our seventh; and the II Amendment serves us as our eight and final check in ultimately deciding or rectifying the matter of constitutionality and ensuring the preservation of America’s most valued tenets.


“_But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed._”
(George Washington, Farewell Address, September 19, 1796)

“_[The] Constitution is the standard to which we are to cling.  Under its banners, bona fide, we must combat our political foes, rejecting all changes but through the channel itself provided for amendments._”
(Alexander Hamilton, Works, (1851), Vol. VI, p. 542, to James Bayard, April, 1802 [fn. 207])

“_There can be no freedom where there is no safety to property or personal rights.  Whenever legislation … breaks in upon personal liberty or compels a surrender of personal privileges, upon any pretext, plausible or otherwise, it matters little whether it be the act of the many or the few, of the solitary despot or the assembled multitude; it is still in its essence tyranny.  It matters still less what are the causes of the change; rather urged on by a spirit of innovation, or popular delusion, or State necessity (as it is falsely called), it is still power, irresponsible power, against right._”
(Justice Joseph Story, A Discourse Pronounced Upon the Inauguration of the Author, as Dane Professor of Law in Harvard University on the Twenty-Fifth Day of August, 1829 (Boston: Hilliard, Gray, Little, and Wilkins, 1829), p. 14 [fn. 208])

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