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The answer to that is pretty straight-forward.


Suppose the people formed the federal government via the states as their respective agents for that limited purpose and for that limited duration in time.   Why not?  What circumstances existed that unequivocally rule this theory out?


The compact theory has some short-comings, as do all theories.   One is this:   If the states consent to an Unconstitutional act, where does this leave the people?   I do not see any situation that requires the people to be wholly dependent on their states to challenge the federal government.     I think the people are entitled to do so directly.   Thus, the states can be thought of as the agents of the people for the limited purpose of ratifying the constitution.   After ratification, we have 3 participants in the structure:   the fed, the state and the person.   I think each exists in its own right.   I think each has its own claim with respect to its sphere of authority and the right to resist overreaching from the other.   In fact, we know this to be true.  States challenge the feds, the feds challenge states, people challenge the states, people challenge the feds, etc.    Clearly, it doesn't end with the states, and rightly so.   To place the state as the sole arbiter for the people is reckless, and it abandons the notion of government as servant.


It so happens that sometimes the states might serve the interests of the people, and sometimes they might not.   It's really not much different than the feds operate.   So, the short answer to the "compact vs. nationalist" debate is....  These ought not to be the only choices, because each is flawed.   The focus on rights should always, in the end, rest in the people.



2 years, 9 months ago on Jefferson Was Right, Webster Was Wrong


I hope we, in Texas, can holdout with non-participation.   The problem is that non-participation only applies to state governments and not the people.   Thus, the feds tax the people of the states and then, refuse to give it to their state governments when the state government opts out.   A system like that simply cannot last.  After a while of paying in and getting nothing back, eventually the people pressure their state governments to opt in and get some of their money back.  

2 years, 9 months ago on Will Texas Nullify Obamacare?


I appreciate the attempts in the law to demarcate whether a statute "taxes" or not, but really these semantics are confusing and go nowhere, except in culturally-accepted legal arguments that preserve the muck-a-muck of the status quo.


What if Congress thought the penalty was a great way to raise revenue, and incidentally, to encourage people to buy insurance?   Would this make a difference?   Arguing about Congress' motives is something that really is not easy to do, and quite often, it leads to debates like these which solve nothing.


The article states:   "[A]n exaction imposed primarily to regulate behavior (such as the ACA’s penalty for not buying insurance) is a regulation of commerce, not a tax, even if it might raise a small amount of revenue. As such, it is valid only if within the scope of the Commerce Power.


First, what is a "tax?"  Consider the home mortgage interest deduction.  Mostly, people have an initial inclination to not see this provision as a tax at all.   However, from the standpoint of a renter, there is most certainly additional tax to be paid for not purchasing a home on credit.   Thus, the renter really IS being assessed a tax, but granted, in a roundabout way.


Clearly, there is some sort of long-held cultural bias going on in the way we choose to perceive schemes such as these.  We just say, "It's not a tax because it's a deduction."   But seriously, is this the case?


In short, virtually every tax policy has the propensity to regulate.   Thus, it would all come within the rubric of regulating commerce.   "I don't want to work if all I get to keep is 80%."  Does this make the income tax fall under the limitations of the Commerce Clause?   No.


This is not a criticism of the article.  I realize what the argument is, and these are the same arguments that are used in the case law, by attorneys and judges who were taught "this" is how you think.   And so, that's what they do.   It's a long-standing tradition in our legal system to adopt wrote methods of analysis without any purely sound logic.   That's why we are where we are.   What a mess! 




2 years, 9 months ago on "Taxes" are for Revenue. SCOTUS is Wrong.


Article says a noted scholar in the very early days wrote, "The powers delegated to the federal government, are, in all cases, to receive the most strict construction that the instrument will bear, where the rights of a state or of the people, either collectively or individually, may be drawn into question.”


In recall a prior argument being made that it didn't matter what Bingham said the 14th meant; rather, what mattered is what the people passed into law.   So, to this sort of reasoning, the standard is either "pick your favorite scholar," or "scholars don't matter."  I am not sure which it should be.


But really none of that matters.   Words are limited in their ability to express a concept.   They don't really matter all that much when you take them as far as they will go.   Example opinion:


"While we are duty-bound to apply the most strict construction that the Constitution will bear when considering the scope of federal powers, alas, we must acknowledge the legitimate authority of Congress.   To permit states to enforce laws of Congress necessarily interferes with Executive discretion, which is inherently a right of the Executive when charged by Congress to carry out its laws.  Therefore, we hold that federal law and state law may not co-exist over the same subject matter, and accordingly, even under the strictest scrutiny we have applied, the Constitution demands nothing less than complete preemption of state involvement over the subject matter."


Conclusion:   You will not find what you are looking for in any law books, opinions, pamphlets or arguments.   Words are far to malleable.  You can try to look at custom, but then again, the question arises, "What do you do after you learn you've been interpreting it all wrong for the last 50 years?"  Custom doesn't help much, either.


2 years, 9 months ago on The Supremes: Looking out for their own


 @BillWalker "The question the author ignores is whether the Constitution permits what he advocates and it does not. It clearly states in the Constitution that it is supreme law and that all state officials are bound to its terms."


Actually, the Constitution states that all laws "made in Pursuance" of the Constitution are supreme.   If the Constitution does not authorize the law in question, then, it is not supreme or binding on anyone.   And, yes, the Supreme Court has told us so from time to time.   Federal laws have been held to be Unconstitutional.  Thus, they are NOT supreme and bind nobody. 


What the Constitution does NOT say is that a federal law IS Constitutional until the Supreme Court says it is not.  Thus, since you propose that federal laws can only be nullified by the US Supreme Court, show us where it says that in the Constitution.   Is there any provision that says, "All federal laws, whether or not made in pursuance of the Constitution, are the supreme law and binding on all states until the Supreme Court gets around to deciding that the ones made not in pursuance are not binding?"


I don't see any provision like that, and my belief is that when a person claims power over others - i.e., "We, the feds, can make all these laws and bind you"  - it seems the burden ought to be on the one claiming such power to prove the source of his power.   It simply is not there.


You state further, "It clearly states in the Tenth Amendment that those authorities assigned the states are the states and those assigned the federal government are the federal government. Hence, "nullification" of federal laws is a FEDERAL matter, not state."


It does not say that in the 10th Amendment.   The Constitution does not "assign" any authority to the states.   Rather, it takes certain authorities away from the states and gives them to the feds.   The 10th Amendment says, everything that was not taken and given to the feds remains with the states.   That's quite a big difference from the way you described it.


Finally, regarding a convention, most definitely, this is a more onerous avenue to seek relief.   If a law is Unconstitutional, is it binding?   Certainly not.   Even fed apologists know that the US Supreme Court has stricken federal laws from time to time, and we know for a fact that Unconstitutional laws are not binding.   If they are not binding, why do we need to form any groups and hope a super majority of states will change the Constitution?   This is bass-ackward.   A convention would be needed to make the bad law Constitutional.  In fact, I don't think nullification is necessary.   When a law is Unconstitutional, it is void.   The US SCt says this.   I believe it.  

2 years, 10 months ago on Judges? We Don't Need No Stinking Judges


I agree.   To put the issue more squarely to your friend, you could ask, using the Sheriff Mack case which held part of the Brady Law Unconstitutional, "What happens when a state nullifies a federal statute that the feds later come to declare was Unconstitutional to begin with?"  


The SCt obviously said the statute is void and not law.   This obviously means the states were not required to comply with it.   Does this not at least implicitly equate to a recognition that nullification is valid - at least when it is done rightly?


2 years, 10 months ago on Judges? We Don't Need No Stinking Judges


Find me a country where redistribution schemes have eliminated the upper class.   There isn't one.


Constitutional theory (whether it be the US Constitution or that of any other nation) is not exactly loaded with pragmatism.   "Do this and nobody will want to work anymore" is a good example.  When our marginal tax rates were as high as 70%, we didn't see Howard Hughes, the Kennedys, the Rockefellers and their ilk saying they were going to stop working or were going to flee to other countries.   As long as there was a buck to be made, they bucked up and made it.


There is a bit of contradiction in the idea that our Constitution made us the greatest nation in the world.   Accepting that we are the greatest nation just for the sake of argument, it is easy to point out that our Constitution has not been followed almost ever since its inception.   On top of that, I don't think too many people would argue that the "New Deal" era legislation was basically the benchmark for when our Constitution essentially died (though some might argue it was the 14th Amendment).   This was about 80 years ago.   So, maybe what made us the greatest nation in the world would be our rulers' disregard for our Constitution.


In my opinion, our greatness is too often measured by our military might.   We exhaust so many resources building nukes and "policing" (to put it nicely) the world, that the world has to essentially obey us.   That's all well and good, but it comes at quite a cost.   Other countries can afford greater redistributive schemes simply because they don't aspire to be the biggest kid on the block.


I'd much rather have my tax money go to helping the sick and elderly than I would to drones and bombs.   Redistribution, like anything, has its virtues and vices, but it's not all bad per se.


There are reasons that disregarding our Constitution has led to us becoming so powerful.   When a people all live under the same rules, wear the same uniforms, and recite the same pledges, there is power to be had.   To compare, look at how our nation was prior to the Civil War.   We, as a nation, were severely weakened by our own internal differences.  


It's no different than Germany's rise to power under Hitler.   Once he assumed power, he did away with the concept of a federation of states and created an extremely centralized and powerful nation.  


If you want power and efficiency, you have to have singularity of rules and control at the expense of diversity.   This was actually predicted by de Tocqueville in his 1835 work, "Democracy in America."   In one of the earlier chapters, he noted that because (back then) power was widely dispersed, we would never be a "mighty" nation, though we were likely to be a very happy one.   Things have changed.   We are now less free and more mighty.




2 years, 10 months ago on Ruth Bader Ginsburg: Don’t Use U.S. Constitution?


Yes, but this criticism isn't going to keep us from paying our dues, either.


The Keynesians are right in some respect - which is that debt eases short term pain.


The Austrians are also right in some respect - which is that you have to pay the price at some point and that continued deferral of paying can make the pain that much worse.


While I tend to agree that we are at a point where the Austrian "cash" model ought to be more closely followed (since we are not even close to following it), this doesn't mean everything will get better.   It means everything will get worse.   You can only make the balance sheet and income statement look better by either raising taxes, cutting spending, or both.  


Raising taxes chokes private investment.


Cutting spending means higher unemployment and lower private sector profits.


There is no escape.   This is about "picking your poison."

2 years, 10 months ago on My ‘Fiscal Cliff’ Prediction


 @MikeMaharrey-TenthAmendment I just re-read Printz v. U.S., and the SCt did in fact address the N&P clause argument.   It held the clause cannot be construed in a manner that would defeat the design of dual sovereignty contemplated by the Constitution.  It held that federal acts that commandeer state and local governments to do federal work does not pass the "Proper" element of the N&P clause.


Here is the language used by the Court (link to follow):


The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. It reasons, post, at 3-5, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers," Art. I, §8, conclusively establishes the Brady Act's constitutional validity, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers "not delegated to the United States." What destroys the dissent's Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself. [n.13] When a "La[w] . . . for carrying into Execution" the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a "La[w] . . . proper for carrying into Execution the Commerce Clause," and is thus, in the words of The Federalist, "merely [an] ac[t] of usurpation" which "deserve[s] to be treated as such." The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: "[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce." 505 U. S., at 166.



Finally, here is the concluding paragraph in Printz:


We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


 @MikeMaharrey-TenthAmendment If the power is contained implicitly within the necessary and proper clause, then the Sheriff Mack case would not have turned out as it did.   Certainly, we have to presume the SCt was aware of the necessary and proper clause when it issued the Sheriff Mack opinion in favor of the Sheriff.  So, if the necessary and proper clause implicitly permits the feds to commandeer state and local governments to carry out federal initiatives, then, the SCt decided the Sheriff Mack case wrongly.  


Although the N & P clause does not expressly rule out the commandeering of state and local governments by the feds, I think it must implicitly rule it out.   Otherwise, the Constitutional framework, which expressly provides for a duality of governments, is for all practical purposes, defeated.

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


 @MikeMaharrey-TenthAmendment OT, but here's an interesting issue:


As I understand the Sheriff Mack case, the SCt held that while Congress had the authority to enact the Brady Bill, it did not have the authority to commandeer the state and local governments to require them to assist the feds in enforcing the federal law.


So.....  under that principle, why would state and local governments be required to withhold federal taxes from their employees' paychecks?   Wouldn't the same rationale dictate that the feds could be limited to going about the collection process themselves?

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


 @MikeMaharrey-TenthAmendment I would agree, if DOMA does anything to limit state authority.   I don't care much about the statute, to be honest.   Maybe it does.   But if it doesn't, then, there's no problem.


It doesn't matter whether DOMA affects "everything federal" as long as it is only affecting things that are federal.   I realize it's not just "benefits" as we understand that term.  However, when you get down to the details, what really is a "benefit?"   Is it just welfare, food stamps, medical, etc.?   What about government contracts?   Certainly, people benefit from contracting with the feds.   What about military service?   Same thing.   Basically, even under the most extreme Libertarian form of government, there will always be some benefit to be had by someone.   That's the nature of all governments.  They have to carry on business at some level (which I agree should be less than it is now).


As to DOMA binding Congress to a definition, as long as it is a definition which operates only in the federal sphere, so be it, although I am not sure how Congress cannot amend the definition anytime it wants.


I do agree the whole thing was a political move by members of Congress to make their "statement" on the ethical and moral "repugnancy" of gay marriage.   But still, it affects no state.   It might express an "opinion" or a "sentiment" of the feds as far as states are concerned, but there seems to be nothing improper so long as that's as far as it goes.


Just for the sake of making your point that the feds can do what they will, as far as people being 5' 5", etc., if they can do that, then, why not the same as regards what they want to consider a marriage?


If your goal, as a federal official, was to make sure that no federal benefits or any other form of federal transactions gave gay couples the same status as heterosexual couples, how would you write that statute in a way that would placate the gays?   I used the example of creating a new definition ("schmozzledegooks", above), but as you can see, no matter what you do, if the feds, acting solely within the federal arena, treat gay couples differently than heterosexual couples, it will never matter how you carve out the distinctions.... the gays will feel discriminated against.  


So consider that if you acknowledge that it is permissible to discriminate in this regard at the federal level, how you would write a statute that would satisfy your concerns, such that you felt the feds were not using a definition to "lean" on states that allow gays to marry?  I don't think it can be done.   My point is that if it ought to be permissible to do this at the federal level in some way, then, the states have no business coming in with their own definitions to try to alter the effects of federal laws.


It's the chicken and the egg problem.   Who was first with the definition?   The feds or the states?


If the feds define it first, then, can the states come along with their alternate definitions and use those to bind the feds?   If the states define it first, does that mean the feds are stuck with it?


I did not mean to try to put any words into your mouth.   I just figured the natural reaction by state's rights advocates is to find a state's rights issue with things they don't particularly like.   I do that, too and have found myself doing it.  


One thing we agree upon is this:   Even with disagreements among state's rights advocates as to details like this DOMA issue, I can accept the disagreement and be quite content with a little error in FAVOR of state's rights for a change.   The feds have gone nuts!  Even states are going nuts, but at least it would be more tolerable at the state level, where political and social views of state officials are more likely to express local sentiment.

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


 @MikeMaharrey-TenthAmendment The feds are not bound by a state's definition of anything.   What if Utah decided to define marriage as a lawful union between any man and a female of any species?   Do you think the feds would have to say, "Well, gee.   This is what Utah says, so I guess the sheep gets survivorship benefits?" 


Just because Utah, or any state, decides to define something, has no impact whatsoever on what, if anything the feds want to define.   If Georgia says, "By definition, grass includes only the species, "St. Augustine," what would compel the feds to refrain from a law that says, "There shall be imposed a tariff on all grass that crosses state lines during the course of commerce.   For purposes of this Act, 'grass' shall include palm trees and philodendrons."


The problem you are having with this concept is that you think that states, in all cases, ought to control the feds.   Both were actually supposed to be autonomous spheres. 

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


 @MikeMaharrey-TenthAmendment Quick additional point.   People just can't seem to get their hands around the use of 2 different definitions for the same thing when different purposes are served.   If one wants to know what an ellipse is, it includes circles.   So, yes, you can call a circle an ellipse, even though the people who immediately see a circle will look at you a little funny.


What if the feds say, "These benefits shall be payable to schmozzledegooks.   'Schmozzledegooks are defined as a combination of one man and one woman who are married?"


Do you think the gays will take that sort of shift easily and just say, "Well, okay, then.   As long as it's schmozzledegooks?"   No way.   Instead, they will say, "We have the right to be schmozzledegooks, too."   And then, states will get in the game and start giving their own definitions of what a schmozzledegook is.

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


 @MikeMaharrey-TenthAmendment There is really nothing crucial about it.   It defines marriage for an entirely different purpose.   It does not interfere with the states' authority simply by stating, "For purposes of our internal laws concerning federal benefits, this is the definition we give to marriage."  


The only "affront" people should have about this practice is that they know there is a discriminatory policy in play.   This is certainly true.   It's just like how I get a mortgage interest deduction, while renters do not.   Yet, we both live in houses.


Now, if the married gays say they want federal benefits and ought to be entitled to them the same as any other married couple, then, that involves a federal policy decision at the federal level and has absolutely nothing to do with state's rights.   Some things the feds do were meant to stay at that level by design.   This is one of them. 


Where, under any state law, is there any authority for a state to have any involvement at all in terms of the federal processes that are employed to arrive at who receives federal benefits and who does not?  It just doesn't exist as far as I am aware, and I have never seen a state law argument to support any such proposition.   I have only seen arguments based on federal law.

2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


Actually, onetenther is correct.   The rules under which the feds operate to provide certain benefits ought rightly be within the exclusive discretion of the feds, so long as those rules do not abridge or limit the exclusive authority of the states or the people over powers not delegated to the feds.  


Here, the denial of fed benefits does not interfere with the states' powers to permit same sex marriage.   People of the same sex can get married in the states that allow it, whether or not they receive certain federal benefits.  


It is not inconsistent to have 2 different definitions of marriage for 2 different purposes.



2 years, 10 months ago on DOMA ruling a small victory for state sovereignty


George Carlin on "What are Rights:"

2 years, 11 months ago on What exactly is a right?


If only the issue was all that easy to Jefferson, himself.   I can't imagine how it could have been.


Clearly, an absolute right to nullify at will can be used as a device to pervert any attempt at forming or maintaining any kind of union.


Taken in its simplest analogy, a contract was formed between multiple parties, and yet, there was no means of arbitration to settle disputes.   Does this mean the contract is entirely unilateral and "at will" and thus, there is no contract at all?   Was this what the ratifiers had in mind when they considered whether or not to ratify?   Why would anyone have debated so hard and so long if the terms were, "Hey, if we don't like it, we can quit any time?"   I have not yet seen any such claim by anyone of that era - not even Jefferson himself.  


I have seen no claim by anyone of that era that the states can pick and choose what they want to follow and what they do not want to follow.   In that case, why have a national legislature?   Or why not just take the position, "Anything I don't like is Unconstitutional?  We're our own judges."  


Jefferson clearly felt strongly in 1798 and 1799.   There is no doubt.   And for good reason, too.  But I do not think his expressions on nullification are bullet-proof, nor can I imagine he did, either.   He had to be too smart not to realize the imperfect nature of taking either position as it relates to what to do when there is a dispute as to the scope of federal power.


I like the concept of nullification.  It's basically civil disobedience.   I think civil disobedience has done wonders here and there.   But this is not because the disobedient needed approval to disobey.   In essence, that is what the nullification debate should be about.   No approval needed.   Not Jefferson's.   Not Madison's.   Nobody's.   Just do it because you feel strongly it is the right thing to do.  


Here are the words of Jefferson which depart from the commonly-held view concerning "natural law:"


"I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree is a politic measure, and a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise. Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation."


How do you square his thoughts above with the notion that he thought legislatures should have no place regulating the flow of wealth and property?   I personally can't square these and think Jefferson was simply conflicted at times.

3 years ago on Who Was the Real Thomas Jefferson?