Title: Police Celebrate 4th Of July With Nationwide No Refusal Checkpoints and Forced Blood Draws Source:
Free Thought Project URL Source:http://thefreethoughtproject.com/po ... ationwide-refusal-checkpoints/ Published:Jul 4, 2015 Author:John Vibes Post Date:2015-07-04 10:46:33 by Deckard Keywords:None Views:62591 Comments:141
Happy 4th of July, the day where Americans celebrate imaginary freedom, and police departments nationwide make millions of dollars violating the rights of nonviolent individuals.
Under the pretense of catching drunk drivers, police will be patrolling the streets and setting up checkpoints all over the country this weekend. In some cases they will arrest drunk drivers, in others they will search and arrest nonviolent drug offenders, while other people may get citations for problems with their vehicle or registration.
Especially for people who haven’t even done anything wrong, these checkpoints are a gross violation of privacy and other natural born rights. Free people should not be stopped and searched or questioned in any way if they are attempting to travel freely. However, we sadly now live in a world where rights like traveling are seen as privileges, to be given and taken by government.
As it stands right now, the way that the state deals with drunk driving is tyrannical and infringes upon everyone’s rights, even people like myself, who hardly ever drink. Economist Jeffrey Tucker wrote an article on this subject and discussed the problems with the status quo while offering some solutions as well.
Laws against drunk driving have vastly expanded police power and done nothing to stop the practice. The best prevention against unsafe driving from drinking has been provided privately: friends, services offered by bars and restaurants, community interest groups, etc. This is the humane and rational way societies deal with social risks. The police have only messed up this process by adding a coercive element that targets liberty rather than crime.
And we can see where this is heading. Texting is now illegal in most places. So is talking on the phone. Maybe talking itself should be illegal. Some communities are talking about banning eating. All of this is a distraction from the real issue.
If our ultimate goals are to reduce driver impairment and maximize highway safety, we should be punishing reckless driving. It shouldn’t matter if it’s caused by alcohol, sleep deprivation, prescription medication, text messaging, or road rage. If lawmakers want to stick it to dangerous drivers who threaten everyone else on the road, they can dial up the civil and criminal liability for reckless driving, especially in cases that result in injury or property damage.
Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers. If the offense were reckless driving rather than drunk driving, for example, repeated swerving over the median line would be enough to justify the charge. There would be no need for a cop to jam a needle in your arm alongside a busy highway.
Scrapping the DWI offense in favor of better enforcement of reckless driving laws would also bring some logical consistency to our laws, which treat a driver with a BAC of 0.08 much more harshly than, say, a driver distracted by his kids or a cell phone call, despite similar levels of impairment. The punishable act should be violating road rules or causing an accident, not the factors that led to those offenses. Singling out alcohol impairment for extra punishment isn’t about making the roads safer. It’s about a lingering hostility toward demon rum.
There is no doubt that drunk driving should be discouraged and that solutions to prevent people from driving drunk should be explored. However, it is entirely possible to do this without violating anyone’s rights in the process.
Meanwhile, in police state USA, it is business as usual.
John Vibes is an author, researcher and investigative journalist who takes a special interest in the counter culture and the drug war. In addition to his writing and activist work he organizes a number of large events including the Free Your Mind Conference, which features top caliber speakers and whistle-blowers from all over the world. You can contact him and stay connected to his work at his Facebook page. You can find his 65 chapter Book entitled “Alchemy of the Timeless Renaissance” at bookpatch.com.
No. The assertion that a constitutional amendment, or any part of the Constitution, can be struck down by the judiciary, or that anyone is free to legally ignore any part of the Constitution, continues to be an unsupportable legal absurdity.
I'm sure Tpaine also thinks that there should be some check.
There is always a check. If the people think the court has erred in constitutional interpretation, they can amend the Constitution to overturn the holding of the Court. If the Congress thinks the Court has erred in statutory interpretation, Congress can just write another law, overturning what the Court has held.
Everyone ignoring all but his or her own notion of the Constitution is not a check, it is anarchy.
When SCOTUS interprets the Constitution, their opinion prevails as to what the Constitution says.
Not true. -And your opinion is not supported within the constitution itself.
You can not and never have cited any legal authority that the judiciary can strike down a constitutional amendment or any other part of the Constitution.
I've cited the constitution itself, and you cannot refute its words.
Your position continues to be absurd.
Your opinion is noted, and the fact that the best 'proof' you can cite is to call Stone and I absurd....
#81. To: A K A Stone, tpaine, nolu chan, *The Two Parties ARE the Same* (#76)
Congress can impeach and remove supreme justices, and also the president. Justices are appointed "for a term of good behavior" ONLY. If they misbehave... BOOT THEM OUT!
It's the Republican and Democrat party voters fault for electing POS congresscritters. Members of the D&R crime family LOVE violating the Constitution.
Congress has the power to remedy the situation, but Boehner and McConnell won't. They love graft, corruption, and selling We The People down the river.
Congress can impeach and remove supreme justices, and also the president.
Certainly. The can also limit the court's appellate jurisdiction, increase or decrease (but not eliminate) the justices on the court, and eliminate all the federal courts except the Supreme court. But Congress can not overturn a Supreme Court interpretation of the Constitution.
There is always a check. If the people think the court has erred in constitutional interpretation, they can amend the Constitution to overturn the holding of the Court.
That has only happenbed 17 times in 240 years.
9 judges exercising a power that is not identified in the constitution. Then millions and millions of just have to go through a long process to overturn their tyranny.
If it is as you say then the constitution has a fatal flaw in it and it sucks.
Chan -- When SCOTUS interprets the Constitution, their opinion prevails as to what the Constitution says.
Not true. -And your opinion is not supported within the constitution itself.
hondo68 posted at (#42): --- Supreme court OPINIONS are NOT final.
Chan responded at #52: ---
This seems to be an argument about terminology. --- Court opinions are considered final when there is no further possibility of judicial proceedings upon the case in the issuing court unless it is reversed or set aside by a higher court. SCOTUS opinions cannot be appealed to a higher court. They are considered final. ---- The holding can always be overturned by a ruling in a subsequent case or by a change in the law it relied upon. ----- That does not change the final opinion in a prior case, but changes the court's interpretation of a legal point, and sets a new precedent. The 13th Amendment did not change the final opinion in Dred Scott but changed the law, invalidating Scott as binding precedent based upon a law that no longer exists. ----- The SCOTUS opinion is final, but the legal issue may be revisited and a new opinion may set a new precedent. The opinion is final but the holding may be challenged in subsequent cases.
Seems to me that you addressed this issue honestly back at #52, Chan.. --- Can you explain why we are all 'absurd' now?
Chan -- When SCOTUS interprets the Constitution, their opinion prevails as to what the Constitution says.
Not true. -And your opinion is not supported within the constitution itself.
Your opinion is supported by nothing at all. Repeating an absurdity over and over makes it no less absurd.
Cite the case where a constitutional amendment has ever been struck down by SCOTUS. Cite the case where SCOTUS has ever claimed such authority.
Cite the case where a SCOTUS interpretation of the Constitution has been overturned by congressional legislation.
Cite any recognized legal authority to support your imaginary concept that SCOTUS has struck down a constitutional amendment or claimed the authority to strike down a constitutional amendment.
Is your source nonexistent or so embarrassing that you refuse to identify it?
Don't be bashful, cite any recognized legal authority, preferably one that is a lawyer and not a wingnut with a blog.
Seems to me that you addressed this issue honestly back at #52, Chan.. --- Can you explain why we are all 'absurd' now?
Your opinion is supported by nothing at all. Repeating an absurdity over and over makes it no less absurd.
Unable to answer a reasonable question, you repeat your "absurd" allegations, and resume your barracks type lawyer leading questions: --
Cite the case where a constitutional amendment has ever been struck down by SCOTUS. Cite the case where SCOTUS has ever claimed such authority.
I've never made such claims, as you know..
Cite the case where a SCOTUS interpretation of the Constitution has been overturned by congressional legislation.
Again, I've never claimed they have, - mr leading question wannabe lawyer..
Cite any recognized legal authority to support your imaginary concept that SCOTUS has struck down a constitutional amendment or claimed the authority to strike down a constitutional amendment. --- Is your source nonexistent or so embarrassing that you refuse to identify it? --- Don't be bashful, cite any recognized legal authority, preferably one that is a lawyer and not a wingnut with a blog.
You're repeating yourself, poor thing. -- I suggest you regain control, and consider telling us why you were honest about the issue at post #52, and are now claiming everyone else is absurd..
Then you should be able to quote from the constitution to make your point.
If that were true, the Constitution would not be a very short framework, it would be a very lengthy legal code.
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ... The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...."
The judicial power is given to the Courts, not the Executive or Legislature. As explicitly stated by the U.S. Supreme Court in 1792, “by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court.”
Unable to answer a reasonable question, you repeat your "absurd" allegations, and resume your barracks type lawyer leading questions: --
You assume this is absurd but run and hide from citing the source of your absurdities?
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. ... The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority...."
But the judicial power is not absolute. It too is tempered by the checks and balances that apply to the legislative and executive powers.. -- The only supreme power is the constitution itself: ---
"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."
You're repeating yourself, poor thing. -- I suggest you regain control, and consider telling us why you were honest about the issue at post #52, and are now claiming everyone else is absurd.
You assume this is absurd but run and hide from citing the source of your absurdities?
(From #52) --- When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Your quote above, from #52, is not absurd, and I certainly never said it was..
This discussion is getting bizarro, imho.. You seem to be taking personal affront at any criticism of your opinions about SCOTUS opinions. -- Why?
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Are you saying this is incorrect, or just blathering?
When SCOTUS rules on a matter of constitutional law, the legislature cannot lawfully legislate contrary to the SCOTUS interpretation of the Constitution.
Is this now not erroneous?
Your latest invention is:
(From #52) --- When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Your quote above, from #52, is not absurd, and I certainly never said it was..
This discussion is getting bizarro, imho..
It is especially bizarro when you claim it is a quote from my #52. Just how did you cut and paste that from #52? You are attempting to respond to #91. That particular phrasing made its initial appearance at #91.
Not only is it not absurd, it is not erroneous. It is 100% correct and you know it.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
When SCOTUS rules on a matter of constitutional law, the legislature cannot lawfully legislate contrary to the SCOTUS interpretation of the Constitution.
hondo68 posted at (#42): --- Supreme court OPINIONS are NOT final.
Chan responded at #52: ---
This seems to be an argument about terminology. --- Court opinions are considered final when there is no further possibility of judicial proceedings upon the case in the issuing court unless it is reversed or set aside by a higher court. SCOTUS opinions cannot be appealed to a higher court. They are considered final. ---- The holding can always be overturned by a ruling in a subsequent case or by a change in the law it relied upon. ----- That does not change the final opinion in a prior case, but changes the court's interpretation of a legal point, and sets a new precedent. The 13th Amendment did not change the final opinion in Dred Scott but changed the law, invalidating Scott as binding precedent based upon a law that no longer exists. ----- The SCOTUS opinion is final, but the legal issue may be revisited and a new opinion may set a new precedent. The opinion is final but the holding may be challenged in subsequent cases.
Seems to me that you addressed this issue honestly back at #52, Chan.. --- Can you explain why we are all 'absurd' now?
Here is your reply, at #91: ---
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Which I mistakenly thought was made at #52, seeing that it says 'virtually' the same thing.
Your qualifiers at both #52 and at #91 make your opinion constitutionally acceptable.
When SCOTUS rules on a matter of constitutional law, the legislature cannot lawfully legislate contrary to the SCOTUS interpretation of the Constitution.
“That the duties assigned to the circuit courts by this act are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War and then to the revision of the legislature, whereas by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court.”
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
University of Missouri, Kansas City School of Law website:
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions are only rarely altered by constitutional amendment or by a new ruling of the Court.
- - - - -
What is erroneous? The legislature cannot overrule SCOTUS when it rules on a constitutional issue.
"When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court."
What is erroneous? The legislature cannot overrule SCOTUS when it rules on a constitutional issue.
"When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court."
That rules out a legislative action.
Your opinion, and that of the court, is erroneous.. The key word that makes those opinions erroneous is 'VIRTUALLY'.. --- That opinion is NOT enumerated in the Constitution, thus the Court does not have that power.
Whereas the legislature may indeed have that power as Art III, Sec 2, Paragraph 2 notes.
[nc] Fro[m] the instant an Amendment is declared ratified, it is an integral part of the Constitution, equal with all other parts. The notion that Congress can legislate or SCOTUS can rule any part of the Constitution to be unconstitutional is absurd.
It's absurd to you, granted. But you can't refute the fact of the supremacy clause.
You should learn what the Supremacy Clause is about. You are obviously completely lost. Neither Congress nor the Court can invalidate a constitutional amendment.
“That the duties assigned to the circuit courts by this act are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War and then to the revision of the legislature, whereas by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court.”
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"[A]ll 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."
Ibid. at 210 Quoting from Marbury v. Madison, 5 U.S. at 177.
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.
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From the opinion of the Court in the National Prohibition Cases, 253 U.S. 350, 386-8 (1920)
5. That amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.
6. The first section of the amendment — the one embodying the prohibition — is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every legislative act, whether by Congress, by a state Legislature, or by a territorial assembly, which authorizes or sanctions what the section prohibits.
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Ableman v Booth, 62 US, 21 How. 506, 517-21 (1858)
The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that “this Constitution, and the laws of the United States which shall be passed 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.”
But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free [518] from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.
Accordingly, it was conferred on the General Government in clear, precise, and comprehensive terms. It is declared that its judicial power shall (among other subjects enumerated) extend to all cases in law and equity arising under the Constitution and laws of the United States, and that, in such cases, as well as the others there enumerated, this court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as Congress shall make. The appellate power, it will be observed, is conferred on this court in all cases or suits in which such a question shall arise. It is not confined to suits in the inferior courts of the United States, but extends to all cases where such a question arises, whether it be in a judicial tribunal of a State or of the United States. And it is manifest that this ultimate appellate power in a tribunal created by the Constitution itself was deemed essential to secure the independence and supremacy of the General Government in the sphere of action assigned to it, to make the Constitution and laws of the United States uniform, and the same in every State, and to guard against evils which would [519] inevitably arise from conflicting opinions between the courts of a State and of the United States, if there was no common arbiter authorized to decide between them.
The importance which the framers of the Constitution attached to such a tribunal, for the purpose of preserving internal tranquillity, is strikingly manifested by the clause which gives this court jurisdiction over the sovereign States which compose this Union when a controversy arises between them. Instead of reserving the right to seek redress for injustice from another State by their sovereign powers, they have bound themselves to submit to the decision of this court, and to abide by its judgment. And it is not out of place to say here that experience has demonstrated that this power was not unwisely surrendered by the States, for, in the time that has already elapsed since this Government came into existence, several irritating and angry controversies have taken place between adjoining States in relation to their respective boundaries, and which have sometimes threatened to end in force and violence but for the power vested in this court to hear them and decide between them.
The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.” The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some [520] tribunal was created to decide between them finally and with out appeal.
The Constitution has accordingly provided, as far as human foresight could provide, against this danger. And, in conferring judicial power upon the Federal Government, it declares that the jurisdiction of its courts shall extend to all cases arising under “this Constitution” and the laws of the United States—leaving out the words of restriction contained in the grant of legislative power which we have above noticed. The judicial power covers every legislative act of Congress, whether it be made within the limits of its delegated powers or be an assumption of power beyond the grants in the Constitution.
This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments [521] of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions.
In organizing such a tribunal, it is evident that every precaution was taken which human wisdom could devise to fit it for the high duty with which it was intrusted. It was not left to Congress to create it by law, for the States could hardly be expected to confide in the impartiality of a tribunal created exclusively by the General Government without any participation on their part. And as the performance of its duty would sometimes come in conflict with individual ambition or interests and powerful political combinations, an act of Congress establishing such a tribunal might be repealed in order to establish another more subservient to the predominant political influences or excited passions of the day. This tribunal, therefore, was erected, and the powers of which we have spoken conferred upon it, not by the Federal Government, but by the people of the States, who formed and adopted that Government and conferred upon it all the powers, legislative, executive, and judicial, which it now possesses. And in order to secure its independence and enable it faithfully and firmly to perform its duty, it engrafted it upon the Constitution itself, and declared that this court should have appellate power in all cases arising under the Constitution and laws of the United States. So long, therefore, as this Constitution shall endure, this tribunal must exist with it, deciding in the peaceful forms of judicial proceeding the angry and irritating controversies between sovereignties which, in other countries, have been determined by the arbitrament of force.
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ARTICLE 3
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
The use of the term "shall" connotes the absence of discretion. The Congress was mandated to create a Supreme Court. The "supreme law of the land" includes the Constitution, laws and treaties. The Supreme Court is given judicial power over all cases arising under the the Constitution, the laws of the United States, and treaties made.
ARTICLE 6
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.
Treaties and Federal laws are equal and each is subordinate to the Constitution.
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THE SUPREMACY CLAUSE U.S. Const. Art. 6, Sec. 2
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One other provision that expressly relates to federalism is the Supremacy Clause found in Article VI of the Constitution. It declares that the "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." This provision sets up a clearly hierarchical relationship between the federal government and the states. Practically, the effect is that state and local laws are deemed preempted if they conflict with federal law."
Constitutional Law, Principles and Policies, 2 Ed., Erwin Chemerinsky, 2002
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As the Supreme Court declared: "[U]nder the Supremacy Clause, from which our pre-emption doctrine is derived, 'any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield.'"
Ibid. 376
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The Constitution gives the president the authority, "by and with the Advice and Consent of the Senate, to make treaties provided two thirds of the Senators present concur." These treaties are the law of the land and prevail over all conflicting state laws. If there is a conflict between a treaty and a federal statute, the one adopted last in time controls. The Court has explained that when a statute and a treaty "relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other."
Ibid. at 275-6. [Underline added]
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A related issue is the extent to which Congress, by statute, may increase presidential powers beyond what are found in the Constitution. In Clinton v. City of New York, the Supreme Court considered the constitutionality of a federal statute which created authority for a presidential line-item veto. The statute empowered the president to veto (or more precisely to "cancel") particular parts of appropriation bills while allowing the rest to go into effect. Congress could overturn such a veto by a majority vote of both houses.
The Supreme Court, in an opinion by Justice Stevens, declared this statutory increase in presidential power unconstitutional. Justice Stevens explained that the president, by exercising the line-item veto, was changing a law adopted by Congress; the final version of the law is diffferent after the veto than what Congress passed. The Court concluded that the Constitution does not allow such presidential authority. Justice Stevens wrote: "In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. '[R]epeal of statutes, no less than enactment, must conform with Art. I.' There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes." The Court emphasized that the procedures for enacting and vetoing laws contained in the Constitution must be strictly adhered to and that any changes must come from a constitutional amendment, not legislative action.
Ibid. at 336-7
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Treaties, agreements between the United States and a foreign country that are negotiated by the president and ratified by the Senate, are permitted unless they violate the Constitution. It is firmly established that if there is a conflict between a treaty and a federal statute, the one adopted last in time controls.
* * *
Treaties, however, cannot violate the Constitution. In Reid v. Covert, the Court held that American civilian dependents of military personnel in a foreign country must be accorded a trial that meets the dictates of the Constitution. Justice Black explained that "no agreement with a foreign nation can confer power on the congress, or on any other branch of Government, which is free from the restraints of the Constitution."
Ibid. at 361
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In Marbury v. Madison (1803), the Supreme Court held § 13 of the Judiciary Act of 1789 unconstitutional. The Act was read by Justice Marshall, perhaps erroneously, to enlarge the Supreme Court's original jurisdiction beyond the limits defined in Art. III of the Constitution. Since the constitution prescribes the powers delegated by the people to the national govenrment, a congressional act contrary to the Constitution is invalid. The Constitution is supreme over ordinary federal or state law under the Supremacy Clause of Art. VI.
Constitutional Law, 6 Ed., Jerome A. Barron and C. Thomas Dienes, Black Letter Series, West Group, 2003, 68
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Art. VI provides that all treaties which are made "under the authority of the United States" are the supreme law of the land. They prevail, as do Executive Agreements, over inconsistent state law. Treaties and Executive Agreements are subject to constitutional limitations. Reid v. Covert (1957). Treaties and Acts of Congress are on a par, i.e., the last in time controls. The Chinese Exclusion Case (1889).
Ibid. at 156
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On February 24, 1803, Chief Justice Marshall delivered the opinion of the Supreme Court in Marbury v. Madison. In the opinion the court held that Marbury had a right to his judicial commission. In so doing the Court found that the executive was subject to certain legal and constitutional restraints that could be enforced by the judiciary.
Yet the Court found that it could not grant the remedy in an original action because it was not within the jurisdiction fixed for the Court by Article III. The opinion interpreted a section of the Judiciary Act of 1789 as placing this action within its jurisdiction but found that this law conflicted with the Constitution. Marshall concluded by holding that the Supreme Court had the power to declare such a law to be invalid as a violation of the Constitution.
Constitutional Law, 4 Ed., John E. Nowak and Ronald D. Rotunda, West Publishing Co., 1991, p. 2
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This clause [The Supremacy Clause] at one time had been interpreted by legal authorities to suggest that treaties were equal to the Constitution. As a consequence the theory developed that said that treaties were not subject to any constitutional limitations.....
That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations, is clear.... The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments.... It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the states, or a cession or any portion of the territory of the latter without its consent....
Ibid. at 210 Quoting Mr. Justice Field of the Supreme Court in De Geofroy v. Riggs.
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If there were any remaining doubt on the issue whether there is any outer limit to the treaty-making power, that question was closed resoundingly in Reid v. Covert, where a plurality of the Supreme Court, in holding American civilian dependents of overseas military personnel entitled to civilian trial, stated that neither a treaty nor an executive agreement "can confer power on the Congress, or on any other branch of government, which is free fom the restraints of the Constitution."
American Constitutional Law, 3 ed., Vol. I, West Publishing Co., Laurence H. Tribe, p. 647
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Footnote 18 See also The Cherokee tobacco, 78 U.S. (11 Wall.) 616, 620-21 (1871)(dictum) ("a treaty cannot change the constitution or be held valid if it be in violation of that instrument").
[nc] Fro[m] the instant an Amendment is declared ratified, it is an integral part of the Constitution, equal with all other parts. The notion that Congress can legislate or SCOTUS can rule any part of the Constitution to be unconstitutional is absurd.
The Supreme Court upholds national prohibition, 1920
A primary source by Wayne B. Wheeler
The Supreme Court Decision on National Prohibition, by Wayne B. Wheeler, advocate for the Anti-Saloon League, explaining the Supreme Court's decision in the National Prohibition Cases, 1920. (Library of Congress Printed Ephemera Collection)
After more than a century of activism, the temperance movement achieved its signal victory with the ratification of the Eighteenth Amendment to the US Constitution in 1919. The amendment abolished “the manufacture, sale, or transportation of intoxicating liquors,” and provided for “concurrent” federal and state authority to enforce the ban. It was controversial from its inception: it did not define “intoxicating liquors,” it did not specifically forbid the purchase of alcohol, it established “concurrent” state and federal enforcement but did not provide any means for enforcement, and its constitutionality was in question.
To provide for enforcement of the amendment, a powerful lobbying group called the Anti-Saloon League, led by its top lawyer, Wayne B. Wheeler, devised the National Prohibition Act, also known as the Volstead Act. Though the law’s wording was confusing, it defined intoxicating liquors as anything over 0.5% alcohol by volume. It also laid the groundwork for federal and state responsibility to prosecute violators. President Woodrow Wilson’s veto of the law was swiftly overridden by Congress in October 1919.
The constitutionality of the new law and the amendment itself were challenged in a series of legal cases that were brought before the US Supreme Court as the National Prohibition Cases (1920). In this document, Wheeler reviewed the meaning of the Court’s decision to uphold the law:
The decision will go down in history as one of the great judicial landmarks in the progress of our civilization. There will be an effort in Congress and in the State Legislatures to nullify the law, and we will meet the practical problem of law enforcement for years to come, but this decision will be the judicial foundation upon which prohibition will rest through the ages.
Thirteen years later, the Twenty-first Amendment was ratified, overturning the Eighteenth Amendment and ending national prohibition in 1933.
If that were true, the Constitution would not be a very short framework, it would be a very lengthy legal code.
No they would only need a line or two if that was the intention.
Something like this.
There shall be a Supreme Court.
It shall be the final arbitrator of the meaning of the constituon when disputes arise.
Cases shall be tried in lower courts first that are set up by the congress.
Then someone smarter then me a few more words. That's it. It isn't there.
But thanks for admitting that it isn't there (indirectly).
I think even if you don't agree you should understand why some people disagree with you on this. For that reason that that power isn't directly mentioned in the constitution.
The constitutionality of the new law and the amendment itself were challenged in a series of legal cases that were brought before the US Supreme Court as the National Prohibition Cases (1920).
The challenge was rejected. You might mention that part. Citing a failed desperate grope argument of counsel, thumpingly rejected by the court, is not quite like citing legal precedent, or an approving recognized legal text. In this case, a brewery owner was desperate to stop prohibition from going into effect.
In Feigenspan, the lead National Prohibition case, District Judge Rellstab whote in his opinion, which was upheld by SCOTUS:
Section 1 of the Eighteenth Amendment (which alone concerns us at present) it will be noted, is not a delegation of power to be exercised, but a mandate operative by its own terms. If valid, the incorporation of it into the United States Constitution, prohibits the manufacture of, and all dealings in, intoxicating liquors for beverage purposes throughout the United States and all the territory subject to its jurisdiction. For brevity, the transactions thereby prohibited will be hereinafter referred to as the "liquor traffic" or "trafficking in liquors." The prohibition covers both intrastate and interstate business in such beverages.
Plaintiff alleges it is invalid.
First, because of its subject-matter.
At the outset let us keep clearly in mind that the issue here relates solely to power—the power to amend the United States Constitution. In discussing the challenges of the plaintiffs articulated under this head, that fact must not be forgotten. The other attacks upon the amendment, to be considered under separate heads, relate to the use made of the power, if it be found to exist. If the plaintiff, is right in its contention of lack of power to insert the Eighteenth Amendment into the United States Constitution because of its subject-matter, it follows that there is no way to incorporate it and others of like character, into the National organic law, except through revolution. This, the plaintiff concedes, is the inevitable conclusion of its contention. This is so startling a proposition that the judicial mind may be pardoned for not readily cceding to it, and for insisting that only the most convincing reasons will justify its acceptance.
[...]
The Eighteenth Amendment but carries forward into the national Constitution what had already been inserted into the organic law of the greater number of States, and if the reasons herein expressed are sound there is no limitation in the United States Constitution, express or implied, that forbids its incorporation therein by action pursuant to Art. V thereof.
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Thirteen years later, the Twenty-first Amendment was ratified, overturning the Eighteenth Amendment and ending national prohibition in 1933.
Live and learn. Another amendment works. It is the only thing that repeals an amendment to the Constitution.
“That the duties assigned to the circuit courts by this act are not of that description, and that the act itself does not appear to contemplate them as such, inasmuch as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War and then to the revision of the legislature, whereas by the Constitution, neither the Secretary at War nor any other Executive officer, nor even the legislature, is authorized to sit as a court of errors on the judicial acts or opinions of this court.”
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
The Federalist No. 81
May 28, 1788 Publius [Alexander Hamilton]
[excerpt]
But perhaps the force of the objection may be thought to consist in the particular organization of the Supreme Court; in its being composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain and that of the State. To insist upon this point, the authors of the objection must renounce the meaning they have labored to annex to the celebrated maxim, requiring a separation of the departments of power. It shall, nevertheless, be conceded to them, agreeably to the interpretation given to that maxim in the course of these papers, that it is not violated by vesting the ultimate power of judging in a PART of the legislative body. But though this be not an absolute violation of that excellent rule, yet it verges so nearly upon it, as on this account alone to be less eligible than the mode preferred by the convention. From a body which had even a partial agency in passing bad laws, we could rarely expect a disposition to temper and moderate them in the application. The same spirit which had operated in making them, would be too apt in interpreting them; still less could it be expected that men who had infringed the Constitution in the character of legislators, would be disposed to repair the breach in the character of judges. Nor is this all. Every reason which recommends the tenure of good behavior for judicial offices, militates against placing the judiciary power, in the last resort, in a body composed of men chosen for a limited period. There is an absurdity in referring the determination of causes, in the first instance, to judges of permanent standing; in the last, to those of a temporary and mutable constitution. And there is a still greater absurdity in subjecting the decisions of men, selected for their knowledge of the laws, acquired by long and laborious study, to the revision and control of men who, for want of the same advantage, cannot but be deficient in that knowledge. The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity.
These considerations teach us to applaud the wisdom of those States who have committed the judicial power, in the last resort, not to a part of the legislature, but to distinct and independent bodies of men. Contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; and the preference which has been given to those models is highly to be commended.
It is not true, in the second place, that the Parliament of Great Britain, or the legislatures of the particular States, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory, neither of the British, nor the State constitutions, authorizes the revisal of a judicial sentence by a legislative act. Nor is there any thing in the proposed Constitution, more than in either of them, by which it is forbidden. In the former, as well as in the latter, the impropriety of the thing, on the general principles of law and reason, is the sole obstacle. A legislature, without exceeding its province, cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases. This is the principle, and it applies in all its consequences, exactly in the same manner and extent, to the State governments, as to the national government now under consideration. Not the least difference can be pointed out in any view of the subject.
[nc #78] The assertion that a constitutional amendment, or any part of the Constitution, can be struck down by the judiciary, or that anyone is free to legally ignore any part of the Constitution, continues to be an unsupportable legal absurdity.
To repeat, the above is the point of contention. It is a fact.
The Constitution need not address every absurd idea of the human imagination in order to be applicable. While it does not directly express the absurdity of a judiciary, by the express soveign will of the people created to serve the people, striking down the express sovereign will of the people — it is not necessary to do so.
The Court created by the sovereign, was granted limited power by the sovereign.
The expressed sovereign will of the people is not subservient to the government they created.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority....
It can never have a case, under the Constitution, to abolish a part of the Constitution.
So, you may claim all you want that the court can strike down part of the Constitution, but it has never been done, and the Court has never claimed the power to do so. It was argued almost a century ago against the 18th amendment, and failed resoundingly.
From the instant an amendment is declared ratified, it binds all courts and legislative bodies. It is the organic, paramount law, and prevails over all other laws. It is an expression of the sovereign will of the people and can be changed only by another expression of the sovereign will of the people. Only the people can do that, not the government.
As the Supreme Court held, the "Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.
Would you believe that SCOTUS could strike down the Bill of Rights?
The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. P. 253 U. S. 386.
The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present -- assuming the presence of a quorum -- and not a vote of two-thirds of the entire membership, present and absent. Id. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276.
The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Id. Hawke v. Smith, ante, 253 U. S. 221.
The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by Article V of the Constitution. Id.
That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. Id.
The first section of the Amendment -- the one embodying the prohibition -- is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers, and individuals within those limits, and, of its own force, invalidates every legislative act -- whether by Congress, by a state legislature, or by a territorial assembly -- which authorizes or sanctions what the section prohibits. Id.
The second section of the Amendment -- the one declaring "[t]he Congress and the several states shall have concurrent power to enforce this article by appropriate legislation" -- does not enable Congress or the several states to defeat or thwart the prohibition, but only to enforce it by appropriate means. P. 253 U. S. 387.
nc] Fro[m] the instant an Amendment is declared ratified, it is an integral part of the Constitution, equal with all other parts. The notion that Congress can legislate or SCOTUS can rule any part of the Constitution to be unconstitutional is absurd.
The quote below proves that the SCOTUS heard and considered the constitutionality of the new amendment.. -- Your opinion is wrong...
The constitutionality of the new law and the amendment itself were challenged in a series of legal cases that were brought before the US Supreme Court as the National Prohibition Cases (1920).
The challenge was rejected. You might mention that part.
I didn't need to, as I knew you would, in your attempt to gloss over the fact that the case was heard, proving you wrong.
Citing a failed desperate grope argument of counsel, thumpingly rejected by the court, is not quite like citing legal precedent, or an approving recognized legal text. In this case, a brewery owner was desperate to stop prohibition from going into effect.
Yada, yada. -- You're the one who's sounding desperate.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority....
It can never have a case, under the Constitution, to abolish a part of the Constitution. --- chan
Nevertheless, the case was heard, making the scotus of the day 'absurd', according to Chan...
The constitutionality of the new law and the amendment itself were challenged in a series of legal cases that were brought before the US Supreme Court as the National Prohibition Cases (1920).
Nevertheless, the case was heard, making the scotus of the day 'absurd', according to Chan...
I am not the one citing the losing argument of attorney in a futile legal case as authority. The argument that you forgot to read is, indeed, absurd. Charles Evans Hughes demonstrated that it was absurd. Root for plaintiff argued that the ratified amendment was a piece of ordinary legislation and did not fall under the authority granted by Article V. Root's absurdity was nicely covered in the Yale Law Journal in 1921 which I have shown you before but which beares repeating if you are to make believe that the massacred argument of Elihu Root makes your babble any less absurd.
As noted in W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, Vl XXX, No. 4, February 1921, p. 322.
The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes.
If a millionaire was willing to pay to get an argument presented, a lawyer was willing to take his money. Mr. Elihu Root for the plaintiff argued, with a straight face, the 18th amendment was an ordinary piece of legislation, and therefore not within the power granted by the 5th Amendment. While a noted lawyer, Root's problem was a meritless argument combined with facing the legal legend. Charles Evans Hughes on the other side.
Feigenspan v. Bodine, et al., (U. S. Dist. Court, Dist. of New Jersey, March 9, 1920).
By the Thirteenth Amendment the right of an individual to buy, sell, possess, transport and use another human being was absolutely prohibited. By substituting “slavery” of the Thirteenth Amendment, for “intoxicating liquors for beverage purposes” of the Eighteenth Amendment, we have in legal effect the same kind of mandatory prohibition. Every argument advanced here to deny the power to incorporate the Eighteenth Amendment into the Constitution could be applied equally against the power to ordain the Thirteenth Amendment.
W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, V1 XXX, No. 4, February 1921, pp. 332-334.
Another argument based upon the word "amendment" is that presented by the appellant's brief in the Feigenspan Case. Here counsel argued that the Eighteenth Amendment is in effect legislation, in that it lays down a rule operative upon the states and upon individuals without the necessity for congressional legislation, and that such an amendment, being legislation, is not within the express power conferred upon Congress by Article 5 of the Constitution. It will be well to quote the language of the brief, which bears Mr. Root's name:
“Our contention is not for a further exception to the power granted; it is that the grant itself does not include the power of ordinary legislation. This is no more affected by the fact that there are express exceptions to the power which was granted than would be the proposition that the grant of the Fifth Article does not include the judicial power or power to command the army and navy.”34
The point under contention is made perhaps even clearer by another statement in this brief:
“In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an
34 At p. 16.
[333]
attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.”
It is sought to bolster up this argument by the provision of the Constitution vesting all legislative power in Congress; and to sustain it further by the purely political argument that legislation thus embodied in the Constitution becomes permanent and beyond the control of the majority, because of the fact that change may be prevented by fourteen states containing only a very small minority of the population of the country.35 A similar argument will be found in an article which recently appeared in the Harvard Law Review.36
This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. The Solicitor General’s brief in the Feigenspan Case reviews a number of provisions of the original Constitution and of amendments thereto before the Eighteenth Amendment, and properly says:
“That the provisions referred to are acts of legislation in the sense that they establish rules of law can not be doubted. They and other provisions constitute a body of laws which the framers of the. Constitution deemed of such importance that they should be enacted and placed beyond the control of any branch of the government.”37
Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously:
“And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court....
“Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves.
“Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves.
“The attempt is made to explain in some way that the Thirteenth
35 pp. 11, 14 et seq., 48.
36 William L. Marbury, The Limitations upon the Amending Power (1919) 33 Harv. L. Rev. 223. See a reply to this article by William L. Frierson, Amending the Constitution of the United States: A Reply to Mr. Marbury (1920) 33 Harv. L. Rev. 659. Mr. Frierson’s name will also be found signed to the brief for the appellees in the case of Feigenspan v. Bodine.
37 At p. 37.
[334]
Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”38
[nc] Fro[m] the instant an Amendment is declared ratified, it is an integral part of the Constitution, equal with all other parts. The notion that Congress can legislate or SCOTUS can rule any part of the Constitution to be unconstitutional is absurd.
The quote below proves that the SCOTUS heard and considered the constitutionality of the new amendment.. -- Your opinion is wrong...
No. It is unfortunate that you do not read or understand the court decisions you spout about.
The Court did not hear an argument about whether the Amendment was constitutional. It heard an argument about whether the Amendment was a piece of ordinary legislation and not an Amendment under the amendment making power conferred by Amendment 5.
You are one of the few who argues the absurd losing argument make their own argument less absurd, and without bothering to read and absurd the losing argument.
See Coleman which I've shown you before. You can make believe as much as you want. You will just get to read it again. Or perhaps read it for the first time.
Citing Coleman v Miller, 307 U.S. 433 (1939), Laurence H. Tribe wrote in American Constitutional Law, Third Edition, Volume 1, at 105, that "Coleman can be regarded today as imposing an absolute bar on judicial review of the amendment process. The Court's instinct that most questions regarding the amendment process should be nonjusticiable is on target: constitutional amendment is a political, not legal, process, and judicial supervision of that process threatens to undermine the independence of Article V from normal legal processes—and poses particular problems when the amendment at issue is one proposed in response to judicial decisions."
holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court.
Coleman at 440.
Once the Secretary of State declares that the Amendment has been ratified and become part of the Constitution, his declaration is conclusive upon the courts.
As for the absurdity of the argument for plaintiff in your cited losing case, the Yale Law Journal covered it nicely in 1921. Read it as many times as needed.
W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, V1 XXX, No. 4, February 1921, pp. 332-334.
Another argument based upon the word "amendment" is that presented by the appellant's brief in the Feigenspan Case. Here counsel argued that the Eighteenth Amendment is in effect legislation, in that it lays down a rule operative upon the states and upon individuals without the necessity for congressional legislation, and that such an amendment, being legislation, is not within the express power conferred upon Congress by Article 5 of the Constitution. It will be well to quote the language of the brief, which bears Mr. Root's name:
“Our contention is not for a further exception to the power granted; it is that the grant itself does not include the power of ordinary legislation. This is no more affected by the fact that there are express exceptions to the power which was granted than would be the proposition that the grant of the Fifth Article does not include the judicial power or power to command the army and navy.”34
The point under contention is made perhaps even clearer by another statement in this brief:
“In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an
34 At p. 16.
[333]
attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.”
It is sought to bolster up this argument by the provision of the Constitution vesting all legislative power in Congress; and to sustain it further by the purely political argument that legislation thus embodied in the Constitution becomes permanent and beyond the control of the majority, because of the fact that change may be prevented by fourteen states containing only a very small minority of the population of the country.35 A similar argument will be found in an article which recently appeared in the Harvard Law Review.36
This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. The Solicitor General’s brief in the Feigenspan Case reviews a number of provisions of the original Constitution and of amendments thereto before the Eighteenth Amendment, and properly says:
“That the provisions referred to are acts of legislation in the sense that they establish rules of law can not be doubted. They and other provisions constitute a body of laws which the framers of the. Constitution deemed of such importance that they should be enacted and placed beyond the control of any branch of the government.”37
Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously:
“And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court....
“Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves.
“Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves.
“The attempt is made to explain in some way that the Thirteenth
35 pp. 11, 14 et seq., 48.
36 William L. Marbury, The Limitations upon the Amending Power (1919) 33 Harv. L. Rev. 223. See a reply to this article by William L. Frierson, Amending the Constitution of the United States: A Reply to Mr. Marbury (1920) 33 Harv. L. Rev. 659. Mr. Frierson’s name will also be found signed to the brief for the appellees in the case of Feigenspan v. Bodine.
37 At p. 37.
[334]
Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”38
It (SCOTUS) can never have a case, under the Constitution, to abolish a part of the Constitution. --- chan
Nevertheless, the case was heard, making the scotus of the day 'absurd', according to Chan...
The constitutionality of the new law and the amendment itself were challenged in a series of legal cases that were brought before the US Supreme Court as the National Prohibition Cases (1920).
The quote above proves that the SCOTUS heard and considered the constitutionality of the new amendment.. -- Your opinion is wrong...
No. It is unfortunate that you do not read or understand the court decisions you spout about. --- The Court did not hear an argument about whether the Amendment was constitutional. It heard an argument about whether the Amendment was a piece of ordinary legislation and not an Amendment under the amendment making power conferred by Amendment 5.
Root made an argument before the SCOTUS that, among others, the prohibition amendment was unconstitutional because, in effect, it is absurd to contend that people can amend away their, or others, inalienable rights to buy, make, or drink alcohol.
Why you are defending this insane concept is beyond comprehension. Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns?
You are one of the few who argues the absurd losing argument make their own argument less absurd, and without bothering to read and absurd the losing argument.
Thanks once again in giving us your opinion about 'absurdity'.
That's because of Chan's posting 'style'; --- he posts lengthy opinions that are vaguely on topic, hoping to impress everyone with his ability to access what, - nexus?
I would think that if an amendment is lawully passed. It can't be ruled unconstitutional.
If that's the case, our bill of rights could be infringed upon or repealed by a Article V convention, after ratification by a tyranny of the majority, making our constitutional principles a joke...
I would think that if an amendment is lawully passed. It can't be ruled unconstitutional.
Catch this part.
iting Coleman v Miller, 307 U.S. 433 (1939), Laurence H. Tribe wrote in American Constitutional Law, Third Edition, Volume 1, at 105, that "Coleman can be regarded today as imposing an absolute bar on judicial review of the amendment process. The Court's instinct that most questions regarding the amendment process should be nonjusticiable is on target: constitutional amendment is a political, not legal, process, and judicial supervision of that process threatens to undermine the independence of Article V from normal legal processes—and poses particular problems when the amendment at issue is one proposed in response to judicial decisions."
holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court.
Nevertheless, the case was heard, making the scotus of the day 'absurd', according to Chan...
I am not the one citing the losing argument of attorney in a futile legal case as authority. The argument that you forgot to read is, indeed, absurd. Charles Evans Hughes demonstrated that it was absurd. Root for plaintiff argued that the ratified amendment was a piece of ordinary legislation and did not fall under the authority granted by Article V. Root's absurdity was nicely covered in the Yale Law Journal in 1921 which I have shown you before but which beares repeating if you are to make believe that the massacred argument of Elihu Root makes your babble any less absurd.
As noted in W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, Vl XXX, No. 4, February 1921, p. 322.
The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes.
If a millionaire was willing to pay to get an argument presented, a lawyer was willing to take his money. Mr. Elihu Root for the plaintiff argued, with a straight face, the 18th amendment was an ordinary piece of legislation, and therefore not within the power granted by the 5th Amendment. While a noted lawyer, Root's problem was a meritless argument combined with facing the legal legend. Charles Evans Hughes on the other side.
Feigenspan v. Bodine, et al., (U. S. Dist. Court, Dist. of New Jersey, March 9, 1920).
By the Thirteenth Amendment the right of an individual to buy, sell, possess, transport and use another human being was absolutely prohibited. By substituting “slavery” of the Thirteenth Amendment, for “intoxicating liquors for beverage purposes” of the Eighteenth Amendment, we have in legal effect the same kind of mandatory prohibition. Every argument advanced here to deny the power to incorporate the Eighteenth Amendment into the Constitution could be applied equally against the power to ordain the Thirteenth Amendment.
W. F. Dodd, Amending the Federal Constitution, Yale Law Journal, V1 XXX, No. 4, February 1921, pp. 332-334.
Another argument based upon the word "amendment" is that presented by the appellant's brief in the Feigenspan Case. Here counsel argued that the Eighteenth Amendment is in effect legislation, in that it lays down a rule operative upon the states and upon individuals without the necessity for congressional legislation, and that such an amendment, being legislation, is not within the express power conferred upon Congress by Article 5 of the Constitution. It will be well to quote the language of the brief, which bears Mr. Root's name:
“Our contention is not for a further exception to the power granted; it is that the grant itself does not include the power of ordinary legislation. This is no more affected by the fact that there are express exceptions to the power which was granted than would be the proposition that the grant of the Fifth Article does not include the judicial power or power to command the army and navy.”34
The point under contention is made perhaps even clearer by another statement in this brief:
“In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an
34 At p. 16.
[333]
attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.”
It is sought to bolster up this argument by the provision of the Constitution vesting all legislative power in Congress; and to sustain it further by the purely political argument that legislation thus embodied in the Constitution becomes permanent and beyond the control of the majority, because of the fact that change may be prevented by fourteen states containing only a very small minority of the population of the country.35 A similar argument will be found in an article which recently appeared in the Harvard Law Review.36
This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root. The Solicitor General’s brief in the Feigenspan Case reviews a number of provisions of the original Constitution and of amendments thereto before the Eighteenth Amendment, and properly says:
“That the provisions referred to are acts of legislation in the sense that they establish rules of law can not be doubted. They and other provisions constitute a body of laws which the framers of the. Constitution deemed of such importance that they should be enacted and placed beyond the control of any branch of the government.”37
Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously:
“And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court....
“Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves.
“Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves.
“The attempt is made to explain in some way that the Thirteenth
35 pp. 11, 14 et seq., 48.
36 William L. Marbury, The Limitations upon the Amending Power (1919) 33 Harv. L. Rev. 223. See a reply to this article by William L. Frierson, Amending the Constitution of the United States: A Reply to Mr. Marbury (1920) 33 Harv. L. Rev. 659. Mr. Frierson’s name will also be found signed to the brief for the appellees in the case of Feigenspan v. Bodine.
37 At p. 37.
[334]
Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”38
Root made an argument before the SCOTUS that, among others, the prohibition amendment was unconstitutional because, in effect, it is absurd to contend that people can amend away their, or others, inalienable rights to buy, make, or drink alcohol..
I am not the one citing the losing argument of attorney in a futile legal case as authority. The argument that you forgot to read is, indeed, absurd. Charles Evans Hughes demonstrated that it was absurd. Root for plaintiff argued that the ratified amendment was a piece of ordinary legislation and did not fall under the authority granted by Article V. Root's absurdity was nicely covered in the Yale Law Journal in 1921 which I have shown you before but which beares repeating if you are to make believe that the massacred argument of Elihu Root makes your babble any less absurd.
Your tiresome repetitions of your opinions, and those of others, prove nothing.
Why you are defending this insane concept is beyond comprehension. Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns?
No power of the government can deem any part of the Constitution to be null and void. The matter of ratification is a political question and the courts have no jurisdiction over political questions.
holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court.
Coleman v Miller, 307 U.S. 433, 440 (1939)
The Supreme Court said it — "the official notice to the Secretary of State, duly authenticated … was conclusive upon the courts."
LaVergne’s claims also fail on other grounds, including lack of justiciability. LaVergne’s constitutional challenge to § 2a is primarily based on his argument that the apportionment method violates Article the First. He alleges that this proposed constitutional amendment was ratified by the states in November 1791 or June 1792. Putting aside the considerable factual and historical problems with his argument, “[t]he issue of whether a constitutional amendment has been properly ratified is a political question.”UnitedStatesv.McDonald, 919 F.2d 146, 1990 WL 186103 (table), at *3 (9th Cir. 1990) (per curiam) (citing Colemanv.Miller, 307 U.S. 433, 450 (1939)). In Coleman, the Supreme Court held that “the question of the efficacy of ratifications by state legislatures . . . should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.” 307 U.S. at 450. SeealsoLutherv.Borden, 48 U.S. (7 How.) 1, 39 (1849) (holding that “the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision”); UnitedStatesv.Foster, 789 F.2d 457, 463 n.6 (7th Cir. 1986) (holding that the issue of “the validity of an amendment’s ratification [is] a non-justiciable political question” and citing, among other cases, Leserv.Garnett, 258 U.S. 130, 137 (1922), and Coleman, 307 U.S. at 450).
LaVergne v Bryson, Secretary of Commerce, 3rd Cir 12-1171 (20 Sep 2012)
And in tpaine's court of the imagination, "amendments to the constitution can be deemed unconstitutional."
All you need to do is believe that when the court held Jane Roe has a constitutional right to an abortion, it only applied to Jane Roe. And when the court held that Obergefell had a constitutional right to marry a person of the same sex, it only applied to Obergefell. In wingnutworld, the legislature and the executive can give the holdings due consideration and choose whether to ignore them or not.
Asserting the Supremacy Clause somehow supports the absurd claim that constitutional amendments can be deemed unconstitutional:
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.
tpaine labors under the delusion that this clause sets the Constitution at equivalency with ordinary legislated laws and United States treaties. As legislation can be struck down by the court as unconstitutional, this brain fart entices him to imagine that the Constititution can be struck down by the court, or that amendments may be deemed unconstitutional, or that amendments pronounced ratified may be struck down by the courts — this only works if laws made by the legislature are equal to the Constitution, and that is so only in some imaginary world.
Ignoring the holding in Coleman, (1939), not to mention the recitation of precedents in LaVergne v. Bryson (2012).
What the Supremacy Clause actually states is that any form of Federal law takes precedence over any form of State law, whether the State law be statutory or constitutional. Note that the clause in the 6th Amendment only applied to "judges in every state."
Read narrowly, the Supremacy Clause binds only state judges. But other provisions of the Constitution, most notably the Fourteenth Amendment, directly constrain the action of all state officials, often without regard to whether state courts have ruled on the validity of those officials' acts; moreover, Article VI declares that "the Members of the several State Legislatures, and all executive and judicial Officers . . . of the several states, shall be bound by Oath or Affirmation, to support this Constitution. ... " Accordingly, the Court has not limited to state judges its demand for compliance with the federal Constitution. In Cooper v. Aaron, a school desegregation case decided against the background of Governor Faubus's resistance to the desegregation of public schools in Little Rock, Arkansas, the Supreme Court asserted what is probably its broadest definition of its own power: "Marbury v. Madison ... declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.... Every state legislator and executive and judicial officer is solemnly committed by oath ... 'to support this Constitution.'"
Laurence H. Tribe, American Constitutional Law, 3rd Ed., Vol. 1 (2000), pg. 255.
In tpaine's court of the imagination, the court and Laurence Tribe are erroneous, along with anyone that does not adopt the absurd notions that flow from his imagination.
Everyone in America knows that laws are struck down by the court when they are found to conflict with the Constitution. The Constitution is the paramount law and takes precedence over all other American law. Treaties and federal statutes are equal (but below the Constitution), with the most recently adopted controlling.
Treaties, agreements between the United States and a foreign country that are negotiated by the president and ratified by the Senate, are permitted unless they violate the Constitution. It is firmly established that if there is a conflict between a treaty and a federal statute, the one adopted last in time controls.
* * *
Treaties, however, cannot violate the Constitution.
Constitutional Law, Principles and Policies, 2 Ed., Erwin Chemerinsky, 2002 at 361
This particular idiocy relates to the National Prohibition Cases in 1920, which was several prohibition cases heard together at the SCOTUS level.
The question was not before the court to determine the constitutionality of the 18th Amendment. An amendment cannot be unconstitutional.
Counsel did not argue the the amendment was unconstitutional, he argued that, due to its content, it was ordinary legislation and not an amendment at all. And, as ordinary legislation, the court had the authority to strike it down, according to this creative argument. Trust tpaine to bloviate endlessly about crap he has not seen or read.
On brief:
In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.
The briefs were ridiculed in W. F. Dodd, Amending the Federal Constitution,Yale Law Journal, Vl XXX, No. 4, February 1921, p. 322. This is the Yale Law Journal, not tpaine's court of the imagination.
The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes.
The argument was characterized in W. F. Dodd, Amending the Federal Constitution,Yale Law Journal, V1 XXX, No. 4, February 1921, p. 333.
This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root.
[...]
Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously:
“And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court....
“Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves.
“Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves.
“The attempt is made to explain in some way that the Thirteenth Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”
The 18th Amendment was an amendment, not common legislation.
Root made an argument before the SCOTUS that, among others, the prohibition amendment was unconstitutional because, in effect, it is absurd to contend that people can amend away their, or others, inalienable rights to buy, make, or drink alcohol..
Root made an argument before the SCOTUS that, L-O-S-T.
The point is that the SCOTUS heard the argument. You claim they can't, and you're wrong.
It was found to have no merit. Like your nonsense.
Inevitably, when you can't address my arguments (as above, about our inalienable rights), -- you call them nonsense or absurd. -- You're making yourself look very unprofessional. -- I assume you've had legal training, and are at least a wannabe lawyer. -- How about acting like a pro, and controlling yourself?
I am not the one citing the losing argument of attorney in a futile legal case as authority. The argument that you forgot to read is, indeed, absurd. Charles Evans Hughes demonstrated that it was absurd. Root for plaintiff argued that the ratified amendment was a piece of ordinary legislation and did not fall under the authority granted by Article V. Root's absurdity was nicely covered in the Yale Law Journal in 1921 which I have shown you before but which beares repeating if you are to make believe that the massacred argument of Elihu Root makes your babble any less absurd.
Your tiresome repetitions of your opinions, and citing lengthy parts of others, prove nothing.
Why you are defending this insane concept is beyond comprehension. Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns?
Root made an argument before the SCOTUS that, among others, the prohibition amendment was unconstitutional because, in effect, it is absurd to contend that people can amend away their, or others, inalienable rights to buy, make, or drink alcohol..
No power of the government can deem any part of the Constitution to be null and void. The matter of ratification is a political question and the courts have no jurisdiction over political questions.
holding that the official notice to the Secretary of State, duly authenticated, of the action of the legislatures of the States, whose alleged ratifications were assailed, was conclusive upon the Secretary of State, and that his proclamation accordingly of ratification was conclusive upon the courts, we affirmed the judgment of the state court.
Coleman v Miller, 307 U.S. 433, 440 (1939)
The Supreme Court said it — "the official notice to the Secretary of State, duly authenticated … was conclusive upon the courts."
LaVergne’s claims also fail on other grounds, including lack of justiciability. LaVergne’s constitutional challenge to § 2a is primarily based on his argument that the apportionment method violates Article the First. He alleges that this proposed constitutional amendment was ratified by the states in November 1791 or June 1792. Putting aside the considerable factual and historical problems with his argument, “[t]he issue of whether a constitutional amendment has been properly ratified is a political question.”UnitedStatesv.McDonald, 919 F.2d 146, 1990 WL 186103 (table), at *3 (9th Cir. 1990) (per curiam) (citing Colemanv.Miller, 307 U.S. 433, 450 (1939)). In Coleman, the Supreme Court held that “the question of the efficacy of ratifications by state legislatures . . . should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the amendment.” 307 U.S. at 450. SeealsoLutherv.Borden, 48 U.S. (7 How.) 1, 39 (1849) (holding that “the political department has always determined whether the proposed constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decision”); UnitedStatesv.Foster, 789 F.2d 457, 463 n.6 (7th Cir. 1986) (holding that the issue of “the validity of an amendment’s ratification [is] a non-justiciable political question” and citing, among other cases, Leserv.Garnett, 258 U.S. 130, 137 (1922), and Coleman, 307 U.S. at 450).
LaVergne v Bryson, Secretary of Commerce, 3rd Cir 12-1171 (20 Sep 2012)
And in tpaine's court of the imagination, "amendments to the constitution can be deemed unconstitutional."
All you need to do is believe that when the court held Jane Roe has a constitutional right to an abortion, it only applied to Jane Roe. And when the court held that Obergefell had a constitutional right to marry a person of the same sex, it only applied to Obergefell. In wingnutworld, the legislature and the executive can give the holdings due consideration and choose whether to ignore them or not.
Asserting the Supremacy Clause somehow supports the absurd claim that constitutional amendments can be deemed unconstitutional:
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.
tpaine labors under the delusion that this clause sets the Constitution at equivalency with ordinary legislated laws and United States treaties. As legislation can be struck down by the court as unconstitutional, this brain fart entices him to imagine that the Constititution can be struck down by the court, or that amendments may be deemed unconstitutional, or that amendments pronounced ratified may be struck down by the courts — this only works if laws made by the legislature are equal to the Constitution, and that is so only in some imaginary world.
Ignoring the holding in Coleman, (1939), not to mention the recitation of precedents in LaVergne v. Bryson (2012).
What the Supremacy Clause actually states is that any form of Federal law takes precedence over any form of State law, whether the State law be statutory or constitutional. Note that the clause in the 6th Amendment only applied to "judges in every state."
Read narrowly, the Supremacy Clause binds only state judges. But other provisions of the Constitution, most notably the Fourteenth Amendment, directly constrain the action of all state officials, often without regard to whether state courts have ruled on the validity of those officials' acts; moreover, Article VI declares that "the Members of the several State Legislatures, and all executive and judicial Officers . . . of the several states, shall be bound by Oath or Affirmation, to support this Constitution. ... " Accordingly, the Court has not limited to state judges its demand for compliance with the federal Constitution. In Cooper v. Aaron, a school desegregation case decided against the background of Governor Faubus's resistance to the desegregation of public schools in Little Rock, Arkansas, the Supreme Court asserted what is probably its broadest definition of its own power: "Marbury v. Madison ... declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land.... Every state legislator and executive and judicial officer is solemnly committed by oath ... 'to support this Constitution.'"
Laurence H. Tribe, American Constitutional Law, 3rd Ed., Vol. 1 (2000), pg. 255.
In tpaine's court of the imagination, the court and Laurence Tribe are erroneous, along with anyone that does not adopt the absurd notions that flow from his imagination.
Everyone in America knows that laws are struck down by the court when they are found to conflict with the Constitution. The Constitution is the paramount law and takes precedence over all other American law. Treaties and federal statutes are equal (but below the Constitution), with the most recently adopted controlling.
Treaties, agreements between the United States and a foreign country that are negotiated by the president and ratified by the Senate, are permitted unless they violate the Constitution. It is firmly established that if there is a conflict between a treaty and a federal statute, the one adopted last in time controls.
* * *
Treaties, however, cannot violate the Constitution.
Constitutional Law, Principles and Policies, 2 Ed., Erwin Chemerinsky, 2002 at 361
This particular idiocy relates to the National Prohibition Cases in 1920, which was several prohibition cases heard together at the SCOTUS level.
The question was not before the court to determine the constitutionality of the 18th Amendment. An amendment cannot be unconstitutional.
Counsel did not argue the the amendment was unconstitutional, he argued that, due to its content, it was ordinary legislation and not an amendment at all. And, as ordinary legislation, the court had the authority to strike it down, according to this creative argument. Trust tpaine to bloviate endlessly about crap he has not seen or read.
On brief:
In this respect a constitutional amendment granting to the government power to prohibit intoxicants would be quite different from an attempted amendment itself directly declaring the prohibition of intoxicants. The former would merely add to the powers of government and would, therefore, in this regard at least, be a proper form of constitutional amendment; while the latter in its essence neither would add nor withdraw powers of government, but would be direct legislation. The Eighteenth Amendment is, therefore, in substance and effect a statute, not a constitutional provision akin to any in the federal Constitution.
The briefs were ridiculed in W. F. Dodd, Amending the Federal Constitution,Yale Law Journal, Vl XXX, No. 4, February 1921, p. 322. This is the Yale Law Journal, not tpaine's court of the imagination.
The briefs presented against the validity of the Eighteenth Amendment are addressed more to what the opposing interests thought ought to be, than to any issues which may properly be termed legal in character. When read, these briefs in many cases seem to be arguments of counsel who were employed to find arguments, and must, therefore, do so, even though they knew the arguments to be untenable. The most effective statements presented to the Court were those submitted in behalf of a number of states as amici curiae, in the cases of Kentucky Distilleries and Warehouse Co. v. Gregory and Rhode Island v. Palmer. These briefs bear the name of Mr. Charles E. Hughes.
The argument was characterized in W. F. Dodd, Amending the Federal Constitution,Yale Law Journal, V1 XXX, No. 4, February 1921, p. 333.
This argument might be termed somewhat ridiculous, had it not appeared under the distinguished name of Mr. Elihu Root.
[...]
Mr. Hughes’ brief in the Kentucky Distilleries Case presents the situation even more vigorously:
“And what is ‘legislation’ which is thus said to lie outside the scope of the amending power according to the theory presented? Is it that the amendment must not be self-executing? But the obvious answer is that the Thirteenth Amendment is self-executing and it has been so adjudged by this court....
“Is it that the amendment must not directly affect the rights of persons without the intervention of legislation? The Thirteenth Amendment did that, for it made free men out of slaves.
“Is it that the amendment must not directly disturb without further legislation vested rights of property? But the Thirteenth Amendment destroyed property in slaves.
“The attempt is made to explain in some way that the Thirteenth Amendment, which did all these things, was not legislation. It is impossible then to understand in what sense the term “legislation” is used. For that which establishes a rule of law which, being self-executing, determines without further legislation the rights and status of persons and rights of property manifestly has the direct operation and effect of legislation.”
The 18th Amendment was an amendment, not common legislation.
Does this mean you would contend that an amendment could be passed that prohibited our inalienable rights to buy, make, or use guns?
The new, revised and better Declaration of Independence.
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, and to buy, make, or use guns.
