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This article asserts: "In fact, between 1937 and 1995, the U.S. Supreme Court never once ruled a congressional statute unconstitutional."
That is not accurate. The following summary lists 159 acts of Congress that the Supreme Court declared unconstitutional through 2002. (That number is now up to about 166 or so). Over 60 of those Supreme Court declarations of unconstitutionality were issued between 1937 and 1995. http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-10.pdf The Supreme Court regularly exercises meaningful review of Acts of Congress, in accordance with its constitutional role.
2 years, 6 months ago on The Supremes: Looking out for their own
@WarrenNorred In the debates in Congress on the 14th Amendment, advocates of the 14th Amendment stated repeatedly that they believed the states were already required to obey the terms of the Bill of Rights, but that the federal government had no enforcement power to compel the states to comply. The 14th Amendment was designed to remedy that problem. For example, John Bingham said "'The question is simply whether you will give by this amendment to the people of the United States the power, by legislative enactment, to punish officials of States for violation of oaths enjoined upon them by their Constitution? ... Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced." He also said "Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. . . . And, sir, it is equally clear by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial, that these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States...." There are quite a few similar statements.
2 years, 6 months ago on A False Premise Makes for a False Court Ruling
@MikeMaharrey-TenthAmendment Bingham objected to the Civil Rights Act of 1866 because he believed it gave the federal government powers that would go well beyond enforcing the Bill of Rights and would allow the federal government to enforce a broad range of civil rights and common law rights. This went beyond the bounds of Bingham's view of federalism. In his view, the 14th Amendment was needed to allow the federal government to enforce the Bill of Rights. He did not believe the federal government should go well beyond that and get into the business of enforcing all civil rights. Therefore he objected to the Civil Rights Act. He believed the 14th Amendment went far enough by allowing Congress to enforce the Bill of Rights against the states.
Your defense of the Slaughter-House Cases reminds me of the old saying "Fools rush in where angels fear to tread." Certainly an angel wouldn't dare to defend the Slaughter-House Cases. . . .
@BJohnson Bingham argued that the 14th Amendment was not taking any rights from the states because he believed the Privileges and Immunities Clause of Article IV of the Constitution already guaranteed that the states could not infringe the Bill of Rights. Bingham therefore believed that the states were already subject to the Bill of Rights.
The problem, in Bingham's view, was that the Constitution lacked an enforcement mechanism allowing the Bill of Rights to be enforced against the states. The 14th Amendment was intended to supply that enforcement mechanism. The enactment of the 14th Amendment, in Bingham's view, allowed the Bill of Rights to be enforced against the states, vindicating the rights that had always existed, in his view. Bingham therefore believed that the 14th Amendment did not take away any rights from the states. Rather, it provided for the enforcement of rights that already existed. That's why Bingham said the 14th Amendment did not take away any right of the states.
@WarrenNorred That simply is not true. In fact, the truth is quite the opposite. Rep. Bingham's original draft of the 14th Amendment did not explicitly restrict the states; rather, it affirmatively granted power to Congress to protect the rights of citizens. Bingham later revised the language of the proposed Amendment to explicitly restrict the states. He added a phrase that had not been in the earlier draft: "No state shall . . ." He did this because he wanted to use the language that the Barron case had said should be used to make the Bill of Rights applicable as a restriction on the states. Thus, the second draft strengthened the applicability of the Bill of Rights to the States. This second draft was the one that was passed by the House. The Senate approved Bingham's language. The Senate amended the proposal to add a clause defining citizenship, but that had no bearing on Bingham's language restricting the states. Rep. Bingham, Sen. Howard, Rep. Stevens, and others made speeches contemporaneously with the passage of the Amendment explaining that one purpose of the Amendment was to make the Bill of Rights applicable against the states. The historical record shows that the 14th Amendment was intended to make the Bill of Rights applicable against the states.
The founders anticipated that there could be disagreements about the meaning of the Constitution and the question of whether federal laws were constitutional. The founders dealt with this issue in the text of the Constitution. The founders understood that determining the meaning of the Constitution and its applicability is a matter of interpretation of law, which is inherently a judicial function. The founders in Article III gave the federal courts the power to determine all cases arising under the Constitution or under the laws of the United States, with the Supreme Court having final appellate jurisdiction. Thus, the founders made the Supreme Court the final authority in determining the meaning of the Constitution. Contemporaneous comments by a number of the founders made clear that the founders intended the federal courts to have the final power to declare federal laws unconstitutional.
The founders also contemplated that there could be legal disputes between the states and the federal government. The founders contemplated that the Supreme Court would be the "umpire" between the states and the federal government, with the final power to determine disputes between the federal government and the states. By giving the Supreme Court the final word in constitutional matters, the founders made clear that the Supreme Court has the power to apply the Supremacy Clause and to determine when it is applicable.
Nullification of federal law by the states was never part of the constitutional model. It wasn't discussed at the Constitutional Convention. Rather, the founders repeatedly stated that the federal judiciary, and ultimately the Supreme Court, would have the final authority in constitutional matters.
The Kentucky Resolutions' suggestion of a right to nullification was not accepted by any other state -- not even by Virginia, where Madison's Virginia Resolutions stopped well short of asserting such a right. All of the other states that responded to the Kentucky Resolutions rejected them. Nullification has never been accepted as a valid doctrine.
We have a constitutional process for determining the constitutionality of federal laws. Ultimately, the Constitution gives the final word in constitutional disputes to the Supreme Court. The Supreme Court has now spoken. The process has run its constitutional course, and it's over. The states cannot nullifythe Supreme Court's recent decision. They do not have the power to do so. When the southern states tried to nullify Brown v. Board of Education so that they could uphold segregation, those states were smacked down -- legally, politically, and in the judgment of history. The states most certainly should not try to go down that road again.
2 years, 6 months ago on What next? Nullify!
The history of the 14th Amendment shows that one of the purposes of the Amendment was to make the Bill of Rights applicable against the states. The Supreme Court in Barron v. Baltimore had previously declined to apply the Bill of Rights to the states. The main drafters and sponsors of the 14th Amendment (John Bingham, Jacob Howard, Thaddeus Stevens) stated that they wanted to reverse the result of Barron v. Baltimore and to make the states subject to the 14th Amendment.
Accordingly, Bingham specifically drafted the language of the 14th Amendment based on what the Barron case had said would be necessary in order to enforce the Bill of Rights against the states. Howard explained that as things then stood, the guarantees of the bill of rights "simply stand . . . in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them . . . The great object of the first section of [the 14th] amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." So, it is clear from the history that the 14th Amendment was intended to make the Bill of Rights applicable to the states.
The Supreme Court's recent decision applying the First Amendment to the states is exactly in line with the intent of the drafters of the 14th Amendment. The Constitution was applied in harmony with its intended meaning.
@onetenther Civil disobedience and nullification are different and unrelated. Civil disobedience is not a constitutional doctrine; rather, it's a moral doctrine. Civil disobedience is not something a state government does as a matter of constitutional interpretation; rather, it's something an individual does as a matter of conscience. Civil disobedience is not a legal remedy; rather, it's a moral action with no legal basis. Civil disobedience does not purport to nullify the law; rather, a person engaging in civil disobedience submits to the law and takes the full consequences.
Nullification is a constitutional doctrine in which a state purports to nullify a federal law that it views as unconstitutional. It is an act of defiance, as the state contends that the law does not apply to it or its citizens. Nullification is based on legal and constitutional considerations and it is undertaken by a state government. Civil disobedience is a moral doctrine in which an individual disobeys a morally unjust law. It is an act of protest, not defiance. One who engages in civil disobedience does not challenge the validity of the law, but the morality of the law. He or she does not purport to nullify that law, but submits to the law. It is a completely different concept.
Dr. King condemned nullification. It does injustice to his memory to attempt to claim Dr. King's support for nullification.
2 years, 8 months ago on Free at Last! Martin Luther King and Nullification
Dr. King was not writing about nullification of supposedly unconstitutional federal laws by state governments. His letter had nothing whatsoever to do with the Constitution or constitutional law issues. Rather, Dr. King was writing about the moral duty of the individual to engage in civil disobedience to unjust laws. Dr. King did not appeal to the Constitution, but to God's law and to moral law. He said that an individual has a duty to disobey morally unjust laws, and that the individual must have a "willingness to accept the penalty." He advocated submission to authority, not defiance of authority. He was talking about classic civil disobedience. Dr. King did not so much as hint that he believed a state legislature has the power to nullify a federal law based on the state legislature's belief that the federal law is unconstitutional. In fact, he made it quite clear later in this letter that he opposed nullification and interposition. This column is seriously mistaken in suggesting the Dr. King provides any support for nullification. Quite the contrary.
Daniel Webster was no supporter of nullification. Quite the contrary. Webster absolutely rejected the idea that the states may unilaterally nullify federal laws. He explained this at length in the Senate in 1830. Webster explained eloquently and accurately that under the Constitution, the power to review the constitutionality of federal laws lies in the federal courts, not in the states. Thus, he said, there is no constitutional basis for the states to nullify federal law.
2 years, 8 months ago on NDAA Resistance: Only the Beginning
I agree that parts of the NDAA are unconstitutional. The proper remedy is to sue in federal court, which somebody eventually will do. Nullification has no legal basis and will not work. The Virginia measure is not a nullification measure -- it does not purport to invalidate or prevent enforcement of federal law. It is more symbolic than effectual.
2 years, 10 months ago on NDAA Nullification Passes Virginia Senate by a Veto-Proof 39-1 Vote