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U.S. Constitution
See other U.S. Constitution Articles

Title: Restoring the Compact Theory Is Vital to Restoring the Constitution
Source: [None]
URL Source: [None]
Published: Sep 2, 2015
Author: Tim Dunkin
Post Date: 2015-09-02 18:57:29 by tpaine
Keywords: None
Views: 667
Comments: 15

canadafreepress.com

Restoring the Compact Theory Is Vital to Restoring the Constitution

Author By Tim Dunkin -- Bio and Archives September 2, 2015

When he authored the Kentucky Resolution of 1798, Thomas Jefferson based his arguments for nullification, in part, upon the compact theory of the relationship between the states and the Federal Government. According to this original understanding of the State-Federal relationship, the Constitution under which the Republic was to operate was the creation of the several states, and thus the Federal government was also the creation of these states.

Jefferson used this understanding to argue that when the Federal government violates the Constitution, the states themselves have the power, as ascendants to the compact of the states, to judge these violations on their own cognizance. The Resolution, along with its sister resolution from Virginia authored by James Madison, were intended as a call to action aimed at the legislatures of the other 14 states, urging them to join Virginia and Kentucky in declaring the recently passed Alien and Sedition Acts as null and void.

Unfortunately, this call to action failed completely. Several of the other states simply ignored these resolutions, while others specifically rebutted it, arguing that only the federal judiciary had the right to rule on the constitutionality of a federal action. Included in these rebuttals was a rejection of the compact theory, and its replacement with the theory of direct incorporation – the belief that the Constitution was incorporated directly by the people of the United States, and therefore was not a creation of the states, but was instead a muzzle on the states put in place by the people themselves.

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble. This view gradually caught on in the early Republic. Daniel Webster also rejected the compact theory, instead asserting the Constitution to have been directly formed by the people of the United States as a body. Joseph Story, in his Commentaries on the Constitution of the United States, concurred. The Supreme Court (naturally) affirmed this view in several subsequent rulings (Martin v. Hunter’s Lessee [1816], McCulloch v. Maryland [1819]), using the same reasoning as Jay used in the 1793 case.

Special: New Probiotic Fat Burner Takes GNC by Storm The compact theory was often relied upon by Southern states to justify both nullification and then secession up until the Civil War. After that war, of course, the theory was completely expunged from the American political lexicon by the victors.

Two general arguments were consistently used by proponents of the direct incorporation theory to attempt to discredit the compact theory. These were:

1) The Preamble of the Constitution declares that, “We the people of the United States, in order to form a more perfect union…” As a result, the Constitution was clearly intended from the very beginning to be a direct creation of the body of people in the nation themselves. As a result, the states have no prior claim, via the compact theory, to sit in judgment upon unconstitutional federal acts – only the people themselves, through the federal government, may do so.

2) As a consequence of the first argument, the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.

Special: Having One of These Credit Cards Means You Have Excellent Credit Before I address these two arguments specifically, I’d first like to make some general observations about the political climate in the United States in 1798. No republic is perfect, and even the best intended will sooner rather than later fall into the clutches of the partisan spirit. America was no different. The Alien and Sedition Acts were the creatures of the Federalists who controlled the national legislature at this time, and were approved by President John Adams, also a Federalist. In many ways, these acts were intended to target the Federalists’ political opponents, the Democratic Republicans (the party of, among others, Jefferson and Madison). The Alien acts were designed to target for deportation foreign nationals, especially Frenchmen, who were allies of the Democratic Republicans (many DRs tended to support the Revolutionaries in the French Revolution, while the Federalists opposed them, and indeed were keen on any pretext for a war with France). The Sedition acts, as their subsequent employment showed, were put into place so as to allow the government to silence Democratic Republican opposition in the press.

At this time, the majority of the state legislatures were in the hands of the Federalists as well, especially those northern states such as Vermont and New Hampshire which were most vigorous in their opposition to the Kentucky and Virginia Resolutions. Chief Justice John Jay, whose opinion in Chisholm v. Georgia these states relied upon for support for the incorporation theory, was also a Federalist. The point to all of this is that incorporationist opposition to the assertion of the compact theory and nullification by Jefferson and Madison was not based on high-minded statesmanlike reverence for the Constitution. Rather, it was based on naked partisanship by Federalists who were supporting their Party and President and who were, thus, rejecting arguments using the compact theory because they originated with political enemies.

Now, to address the incorporationist arguments. First, was the Constitution a creation of the citizens of the United States as a mass, or was it a creation of the people of the states, through their states?

The answer to this question, contrary to the assertions of many in our history, is the latter. This can be seen clearly enough in the statements of ratification of the Constitution found in all 13 of the original states. For instance, in Virginia’s statement of ratification declares,

Special: Two Steps to Tightening Skin and Removing Eye Bags Overnight “We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…”

New Hampshire’s ratification statement, likewise, contains this injunction to their representatives concerning proposed changes to the document in question,

“In Convention of the Delegates of the People of the State of New-Hampshire June the Twenty first 1788…And the Convention do in the Name & behalf of the People of this State enjoin it upon their Representatives in Congress…”

In a similar vein, Massachusetts’ statement said,

“In Convention of the delegates of the People of the Commonwealth of Massachusetts February 6th 1788…And the Convention do in the name & in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress…”

New Jersey’s statement explicitly notes that the convention of the people in their state, meeting for the purpose of ratifying the Constitution, was authorized to do so by the state’s legislature,

“And Whereas the Legislature of this State did also on the first day of November last make and pass the following Act, Vizt- “An Act to authorize the People of this State to meet in Convention, deliberate upon, agree to, and ratify the Constitution of the United States, proposed by the late General Convention…”

And so on. Each and every state ratification convention asserted that the delegates who were meeting to ratify the new Constitution did so on behalf of the people of their states. Each one asserted that all power originated from the people…but also asserted that this power was being exercised by the people of their several states through the conventions of their states. The states, as bodies formed from their separate populations and existing prior to the Constitution, were the parties to the Constitution – not the body of citizens of the United States as a whole. This truth is further affirmed within the text of the Constitution itself. Article VII says,

“The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”

Clearly, this depicted the ratification of the new Constitution as an agreement between the several states acceding to it. As such, the relevant context from the time, both within and without the Constitution, points to the preamblatory comments that say…

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

…as meaning that the “we the people” were acting through their separate states. When “the people” formed the Union, it was not as an aggregate mass of individual people spanning from the northern tip of Maine to the southern border of Georgia. Rather, it was as political bodies, acting through their particular states, which were the parties to the Constitution.

That this view was the original intention is affirmed by Madison in Federalist #39,

“On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other hand, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State – the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.

“That it will be a federal and not a national act, as those terms are understood by the objectors – the act of the people, as forming so many independent States, not as forming one aggregate nation – is obvious from this single consideration: that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.”

In these two paragraphs, we witness the utter and complete destruction of the incorporationist argument as it is drawn from the Preamble. Quite obviously, the intention of the men writing the new Constitution, and one of the arguments they used to convince their contemporaries to ratify it, was that the States would be treated as sovereign powers acceding to the Constitution as separate entities. The later arguments, based as they were on partisan misinterpretations which were then carried through, cannot rightly be given serious weight.

Now for the second argument, which is that the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.

We should note that the first part of this argument, at least, is something of a straw man. Nobody has argued, or argues today, that the Constitution is not the supreme law of the land. But we should also note that the latter assertion in the incorporationist argument does not follow from the former. The Constitution itself, as well as the arguments used to garner support for it for ratification, clearly show that the states yielded up only as much of their full, sovereign, plenipotentiary powers as they had voluntarily acceded to yield when they ratified the Constitution - and no more. The 10th amendment makes this clear, and the Supremacy Clause in Article VI, far from denying power to the states, actually affirms the vast bulk of their powers that were not specifically ceded to the federal government – the federal government could only overrule the states on those things which were specifically granted to it “in pursuance” of the division of powers framed into this document. Everything else was beyond federal reach.

As such, the supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.

The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches). Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary. Now, judicial review can be understood as an implied power of the federal courts – it makes sense that the judicial branch of the federal government would have the right to pass judgment on acts of the other two. However, because this same power was never once explicitly given only to the federal bench, nor denied to the states, it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary.

As those who established, ratified, and ordained the Constitution, the states (representing their separate peoples) certainly do have the right to stand in judgment of federal actions. The incorporationist theory of federalism is completely contrary to the explicit statements and intentions of those Founders who were most responsible for drafting the Constitution. The compact theory, on the other hand, was explicitly affirmed by them, and thus finds much greater support from the origination of our system of government than does the notion that the federal government is a creature of the people en masse, and that the states are subordinate and “unlimited in their submission” to the federal government.

The incorporationist doctrine should be rejected. The simple fact of its long use lends it no credibility – a bad idea is still bad, even if it has the weight of long usage behind it. If constitutionalists want to get back to the Constitution as it was really meant to be, then we must swing the pendulum back towards an affirmation of states’ rights under the compact theory.

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#1. To: nolu chan, Y'ALL (#0)

As such, the supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.

The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches).

Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary.

Now, judicial review can be understood as an implied power of the federal courts – it makes sense that the judicial branch of the federal government would have the right to pass judgment on acts of the other two. However, because this same power was never once explicitly given only to the federal bench, nor denied to the states, it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary.

Read, --- and learn...

tpaine  posted on  2015-09-02   19:03:33 ET  Reply   Trace   Private Reply  


#2. To: tpaine (#0)

Thanks for posting. Interesting. I truly believe that we have to get away from the concept that the Federal Govt is superior to the states. I do not believe that was the intention of most of the founders.

Si vis pacem, para bellum

Stoner  posted on  2015-09-02   21:22:20 ET  Reply   Trace   Private Reply  


#3. To: Stoner (#2)

I truly believe that we have to get away from the concept that the Federal Govt is superior to the states.

Where is this "concept" written or understood? In publick skools and voter booths? Perhaps, the UN organization that the US governmement created?

buckeroo  posted on  2015-09-02   22:33:30 ET  Reply   Trace   Private Reply  


#4. To: tpaine (#1)

Read, --- and learn...

Nobody can learn anything from the drivel you post. This fight was lost 200 years ago, and the Civil War shoveled dirt on the grave. This would require revolution or secession.

nolu chan  posted on  2015-09-03   0:28:06 ET  Reply   Trace   Private Reply  


#5. To: buckeroo (#3)

" Where is this "concept" written or understood? In publick skools and voter booths? Perhaps, the UN organization that the US governmement created? "

In the philosophies, policies, & actions of "big government" proponents, politicians, judges, politicians, & professors. I do not agree with them.

Si vis pacem, para bellum

Stoner  posted on  2015-09-03   8:55:21 ET  Reply   Trace   Private Reply  


#6. To: nolu chan (#4)

--- the supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.

The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches).

Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary

Read, --- and learn...

Nobody can learn anything from the drivel you post.

Whereas, I'm learning a lot about what you think is 'drivel'.

This fight was lost 200 years ago, and the Civil War shoveled dirt on the grave. This would require revolution or secession.

This fight was never lost. The supreme courts opinions are not part of our supreme law, and the other two Fed branches, AND the people of the States, -- can dispute them.

tpaine  posted on  2015-09-03   11:33:06 ET  Reply   Trace   Private Reply  


#7. To: Stoner, buckeroo, y'all ---- and misterwhite, Nolu Chan (#5)

buckeroo (#3) --- " Where is this "concept" written or understood? In publick skools and voter booths? Perhaps, the UN organization that the US governmement created? "

In the philosophies, policies, & actions of "big government" proponents, politicians, judges, politicians, & professors. I do not agree with them. --- Stoner

Right on...

"Big Government proponents" rigs a bell here on LF, doesn't it?

tpaine  posted on  2015-09-03   11:41:47 ET  Reply   Trace   Private Reply  


#8. To: tpaine (#0)

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble.

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

https://en.wikipedia.org/wiki/Chisholm_v._Georgia

Chisholm v. Georgia, 2 U.S. 419 (1793), is considered the first United States Supreme Court case of significance and impact. Given its date, there was little available legal precedent (particularly in American law). It was almost immediately superseded by the Eleventh Amendment.

http://www.georgiaencyclopedia.org/articles/government-politics/chisholm-v-georgia-1793

In the wake of this decision, however, howls of protest rose throughout the country. Within five years, U.S. Congress had proposed and the states had ratified the Eleventh Amendment, which overturned the principle of the Chisholm decision by providing that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State."

To this day, Chisholm stands as one of only a handful of Supreme Court rulings that have been overturned by constitutional amendment. Even more important, the Supreme Court has built on the repudiation of Chisholm to hold that the Eleventh Amendment exemplifies a sovereign-immunity principle that sweeps well beyond the amendment's text. Invoking this principle, the court has sheltered states from almost all money-damage actions brought in any court, even when initiated by a state's own residents based on clear violations of federal statutory law.

https://www.law.cornell.edu/constitution/amendmentxi

Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

nolu chan  posted on  2015-09-03   13:49:12 ET  Reply   Trace   Private Reply  


#9. To: nolu chan (#8)

You claim that : ---

The direct incorporation theory --- "was squashed over two centuries ago by the 11th Amendment."

Your last post, and the wording of the 11th, does not prove that opinion.

Can you explain?

tpaine  posted on  2015-09-03   14:51:00 ET  Reply   Trace   Private Reply  


#10. To: nolu chan, Y'ALL (#8)

legal- dictionary.thefreedictionary.com

Eleventh Amendment

The text of the Eleventh Amendment limits the power of federal courts to hear lawsuits against state governments brought by the citizens of another state or the citizens of a foreign country. The Supreme Court has also interpreted the Eleventh Amendment to bar federal courts from hearing lawsuits instituted by citizens of the state being sued and lawsuits initiated by the governments of foreign countries. For example, the state of New York could invoke the Eleventh Amendment to protect itself from being sued in federal court by its own residents, residents of another state, residents of a foreign country, or the government of a foreign country.

The Eleventh Amendment is rooted in the concept of Federalism, under which the U.S. Constitution carefully enumerates the powers of Congress to govern at the national level, while safeguarding the power of states to govern locally. By limiting the power of federal courts to hear lawsuits brought against state governments, the Eleventh Amendment attempts to strike a balance between the sovereignty shared by the state and federal governments.

"The object and purpose of the Eleventh Amendment [is] to prevent the indignity of subjecting a state to the coercive process of [federal] judicial tribunals at the instance of private parties" (Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216 [1887]). The Eleventh Amendment highlights an understanding that the state governments, while ratifying the federal Constitution to form a union, "maintain certain attributes of sovereignty, including sovereign immunity" from being sued in federal court (Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 [1890]).

However, the Eleventh Amendment does not bar all lawsuits brought against state governments in federal court. Four major exceptions have been recognized by the Supreme Court. First, the Eleventh Amendment does not apply to lawsuits brought against a state's political subdivisions. Accordingly, counties, cities, and municipalities may be sued in federal court without regard to the strictures of the Eleventh Amendment.

The second exception to the Eleventh Amendment permits a state government to waive its constitutional protections by consenting to a lawsuit against it in federal court. For example, Minnesota could waive its Eleventh Amendment protections by agreeing to allow a federal court to hear a lawsuit brought against it.

The third exception permits Congress to abrogate a state's Immunity from being sued in federal court by enacting legislation pursuant to its enforcement powers under the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 [1976]). Congressional intent to abrogate a state's Eleventh Amendment immunity must be "unmistakably clear" (Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 [1985]). Evidence of this intent may be found in the legislative floor debates that precede a congressional enactment (Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 [1979]).

In 1996, the Supreme Court ruled that Congress may not abrogate a state's Sovereign Immunity from being sued in federal court pursuant to its regulatory powers under the Indian Commerce Clause contained in Article I, Section 8, of the Constitution (Seminole Tribe v. Florida, 517 U.S.44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996). Seminole overruled Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 (1989), which held that Congress may abrogate a state's immunity under the Interstate Commerce Clause, which adjoins the Indian Commerce Clause in Article I.

Although Seminole involved the Indian Gaming Regulatory Act (18 U.S.C.A. §§ 1166 to 1168, 25 U.S.C.A. § 2701 et seq.), which governs certain gambling activities of Native American tribes, the Court's decision calls into question the continuing power of federal courts to hear lawsuits against state governments seeking to enforce environmental statutes, Bankruptcy laws, Intellectual Property legislation, and scores of other business regulations that have been enacted pursuant to congressional power under the Commerce Clause.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C.A. § 9601 et seq.) is one federal law passed pursuant to congressional power under the Commerce Clause. This act makes states liable in federal court for costs incurred from cleaning up hazardous waste sites. (See Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S. Ct. 2273, 105 L. Ed. 2d 1 [1989]). The Court's decision in Seminole could affect thousands of lawsuits filed each year under this statute alone.

The final exception to the Eleventh Amendment permits citizens of any state to seek an Injunction against state officials in federal court to "end a continuing violation of federal law" (Green v. Mansour, 474 U.S. 64, 106 S. Ct. 423, 88 L. Ed. 2d 371 [1985]; Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 [1908]). For example, residents of Ohio are permitted to bring a lawsuit in federal court seeking to compel the state's governor to construct housing in compliance with the Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.), a federal statute designed to protect the rights of handicapped U.S. citizens (see Martin v. Voinovich, 840 F. Supp. 1175 S.D. Ohio [1993]). However, such a lawsuit would be barred by the Eleventh Amendment if the remedy sought were not injunctive relief but money damages to be paid out of the state's treasury.

The Supreme Court has distinguished permissible lawsuits seeking prospective equitable relief, such as the injunctive remedy sought by the Ohio residents, from impermissible lawsuits seeking money damages for past actions: "[F]ederal court[s] may award an injunction that governs [a state] official's future conduct, but not one that awards retroactive monetary relief" (Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 [1984]). The distinction between prospective injunctive relief and retroactive money damages can be traced back to the Framers' original understanding of the Eleventh Amendment.

Ratified in 1795, the Eleventh Amendment was drafted to overrule the Supreme Court's decision in chisholm v. georgia, 2 U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793), which held that a citizen of one state may sue the government of another state in the U.S. Supreme Court. Chisholm created a maelstrom across the United States. At the close of the American Revolution, each state was greatly indebted to foreign creditors for financial and other assistance received during the war. Congressional representatives feared that Chisholm would permit these foreign creditors to ask federal courts to force the fiscally troubled state treasuries to bear the burden of these debts.

Representatives also expressed concern that British loyalists who had been dispossessed of their homes and personal belongings by the colonies during the revolution could now sue the state governments to recover their property. John Jay, the chief justice of the Supreme Court, exacerbated these concerns by advocating the full restoration of Loyalist property. A defiant Georgia House of Representatives passed a resolution providing that any person who attempted to collect a Revolutionary War debt or recover property pursuant to Chisholm "shall be declared guilty of a felony and … suffer death without benefit of clergy, by being hanged."

Two days after Chisholm was handed down by the Supreme Court, an anonymous senator submitted to Congress a proposal that later became the Eleventh Amendment to the Constitution. From its inception, the Eleventh Amendment has fueled heated discussions among judges and lawyers about the appropriate manner in which it should be interpreted.

Federal courts derive their power to hear lawsuits from Article III of the Constitution. Section 2 of Article III specifies particular "Cases" and "Controversies" that can be decided by the federal judiciary. These cases and controversies fall into two general categories: those identified by their subject matter and those identified by their parties.

Federal courts have jurisdiction to hear cases whose subject matter "aris[es] under" the U.S. Constitution, an Executive Order promulgated by the president, a federal law enacted by Congress, or a treaty between the United States and another country (U.S. Const. art III, § 2). Such cases are said to present federal questions because they involve legal issues based on one of these species of federal law. For example, cases involving free speech claims under the First Amendment or discrimination claims under the civil rights act of 1871 (42 U.S.C.A. § 1983) present federal questions and confer upon federal courts the Subject Matter Jurisdiction to resolve them.

Federal courts also have jurisdiction to hear cases based on the parties involved in the lawsuit. Under what is sometimes called party-based jurisdiction, federal judges have the power to decide cases affecting "Ambassadors" and "other public Ministers and Consuls." The federal judiciary may also entertain disputes "between two or more States," "between Citizens of different states," or "between a State and Citizens of another State" (U.S. Const. art. III, § 2). The italicized clause contemplates federal jurisdiction extending to cases between state governments and citizens of other states and provided the basis for the Supreme Court's decision in Chisholm.

Although the Eleventh Amendment was clearly adopted in response to the Supreme Court's interpretation of Article III in Chisholm, it has not been applied in a clear or uniform manner by the courts. Four alternative theories of interpretation have been advanced by lawyers and judges.

The first theory of interpretation, espoused by Justice Thurgood Marshall, insists that the Eleventh Amendment protects states from being sued in federal court without their consent. It "had been widely understood prior to ratification of the Constitution," Marshall said, "that the provision in Art[icle] III, Section 2 … would not provide a mechanism for making states unwilling defendants in federal court" (Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279, 93 S. Ct. 1614, 36 L. Ed. 2d 251 [1973]). Marshall believed that the Eleventh Amendment did not change this original understanding of federal jurisdiction. For Marshall, then, the meaning of the Eleventh Amendment was simple: A state could not be sued in federal court under any circumstances in which the state did not consent.

According to the second theory of interpretation, the Eleventh Amendment applies only to party-based jurisdiction and not to subject matter jurisdiction. This theory, advanced by Justice william j. brennan jr., permits federal courts to hear lawsuits against states that present federal questions, such as those "arising under" the Constitution, but bars federal judges from deciding cases in which the plaintiff lives in a different state than the one being sued. Adherents of this theory point out that Chisholm, the Supreme Court decision that was overruled by the Eleventh Amendment, involved party-based jurisdiction and was not subject matter jurisdiction.

The third theory of interpretation relies on the text of the Eleventh Amendment itself. Again, the language of the Eleventh Amendment suggests that federal courts may hear only two types of lawsuits against state governments: those brought by citizens of another state and those brought by citizens of another country. Under this theory, federal courts can entertain lawsuits seeking to vindicate a federal constitutional or statutory right only if the plaintiff lives in a different state from the one he or she is suing or is the citizen of a foreign country. If the plaintiff resides in the state he or she is suing, only a state court may hear the case.

The fourth theory of interpretation also focuses on the language of the Eleventh Amendment, but in a different way. This theory stresses that the Eleventh Amendment explicitly limits the "Judicial power of the United States" but makes no mention of federal legislative power (U.S. Const. art. III, § 2). In this light, the Eleventh Amendment explicitly restricts the power of federal judges to hear cases against state governments and implicitly permits Congress to abrogate a state's sovereign immunity from being sued in federal court. This theory permits citizens of any state, including the state being sued, to file a lawsuit against a state government in federal court to enforce a legal right delineated by congressional legislation. Many advocates of this theory argue that Congress's authority to enact such legislation derives from any of its constitutionally enumerated powers, and not just its powers under the Fourteenth Amendment as the Supreme Court concluded in Seminole.

The diversity of these theories demonstrates the complexity of Eleventh Amendment Jurisprudence, as does the Supreme Court's decision in Seminole, which overruled a case less than eight years old. Yet, most adherents to these various theories would agree on one point: There is an advantage, however slight, to filing a lawsuit in federal court rather than state court. A federal court is more likely to render an impartial verdict than is a judge or juror who resides in the state being sued. For this reason, plaintiffs, and the lawyers representing them, will continue to sue state governments in federal court and argue vociferously for the most narrow interpretation of the Eleventh Amendment's sovereign immunity.

In Lapides v. Bd. of Regents, 535 U.S. 613, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002), the petitioner, a professor in the Georgia state university system, filed a state-court suit against the system's Board of Regents and university officials alleging that the officials had violated state Tort Law and 42 U. S. C. §1983 when they placed Sexual Harassment allegations in his personnel files. The defendants removed the case to federal district court and then sought dismissal. Conceding that a state statute had waived Georgia's sovereign immunity from state-law suits in state court, the State claimed Eleventh Amendment immunity from suit in the federal court. The Supreme Court found that a State waives its Eleventh Amendment immunity when it removes a case from state court to federal court.

Further readings

Fletcher, William A. 1983."A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction." Stanford Law Review 35.

Jacobs, Clyde F. 1972. The Eleventh Amendment and Sovereign Immunity. Westport, Conn.: Greenwood.

Marshall, Lawrence C. 1989."Fighting Words of the Eleventh Amendment." Harvard Law Review 102.

Cross-references

Ambassadors and Consuls; Equity; Federal Question; Gaming; Immunity; Legislative History.

Notice anything wrong? Send Silk feedback

tpaine  posted on  2015-09-03   17:42:03 ET  Reply   Trace   Private Reply  


#11. To: tpaine (#9)

You claim that : ---

The direct incorporation theory --- "was squashed over two centuries ago by the 11th Amendment."

What you meant to quote:

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

Your bullshit "quotes" are not impressive. Chisholm was reversed by the 11th Amendment and jurisdiction of the Court over Chisholm and all such pending cases was taken removed by Hollingsworth v. Virginia.

The Court, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

American Constitutional Law, 10th Ed., Vol 1, 2013, p. 388. by Louis Fisher and Katy J. Harriger.

Louis Fisher worked at the Library of Congress as Senior Specialist in Separation of Powers and later as Senior Specialist in Constitutional Law.

Two months before the first Congress met, James Madison supported constitutional amendments to provide "for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c." 5 The Writings of James Madison 320 (letter to George Eve, January 2, 1789). The responsibility for moving these amendments through the House of Representatives fell to Madison, who argued that a Bill of Rights would remove apprehensions that the people felt toward the new national government. 1 Annals of Congress 431-33 (1789). He also wanted to place restrictions on the states and proposed that cc[n]o State shall violate the equal rights of conscience, of the freedom of the press, or the trial by jury in criminal cases." Id. at 435. The states "are as liable to attack these invaluable privileges as the General Government... Id. at 441. As finally drafted and ratified, however, the first ten amendments to the Constitution— the Bill of Rights—limited only the federal government.

In 1833, the Supreme Court reaffirmed that the Bill of Rights restrained only the federal government, not the states. At issue was the Just Compensation Clause of the Fifth Amendment. Barron v. Baltimore, 32 U.S. (7 Pet.) 243. The same conclusion was reached by the Court 25 years later. Withers v. Buckley, 20 How. (61 U.S.) 84, 89-90 (1858). However, the Civil War and passage of the Fourteenth Amendment in 1868 worked a fundamental change in federal-state relations.

A Practical Companion to the Constitution, p. 244, by Jethro K. Lieberman, emphasis as in original

In 1892 the first Justice John M. Harlan insisted that the Fourteenth Amendment prohibits the states from denying orr abridging any "of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States. In other words, the Fourteenth Amendment incorporates every provision in the Bill of rights. Harlan's was a minority voice. But in 1897 the Court for the first time declared that a stateviolates due process when it takes property without paying just compensation.

American Constitutional Law, 5th Ed., 2012, p. 28, by Otis S. Stephens and John M. Scheb II, emphasis as in original.

The Court has, however, endorsed a doctrine of selective incorporation by whichy most of the provision of the Bill of Rights have been extended to limit actions of the state and local governments. The process of selective incorporation began in 1897 in the case of Chicago, Burlington & Quincy Railroad Company v. Chicago.

Chisholm v. Georgia

Chief Justice Jay,

The question we are now to decide has been accurately stated, viz., Is a State suable by individual citizens of another State?

Justice Cushing,

The grand and principal question in this case is, whether a State can, by the Federal Constitution, be sued by an individual citizen of another State?

Justice Wilson,

The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States?

The Court said yes. The 11th Amendment said no.

Constitutional Law, 2009, p. 264, by Erwin Chemerinsky

State legislators and governors were outraged by the Supreme Court's decision in Chisholm v. Georgia. Georgia adopted a statute declaring that anyone attempting to enforce the Supreme Curt's decision is "hereby declared to be guilty of a felony, and shall suffer death, without the benefit of clergy by being hanged." The intenst reaction of Chiholm is reflected in the speed with which a constitutional amendment to overturn the decision was adopted. The Supreme Court decided Chisholm on February 14, 1794. By March 4, 1794, less than three weeks later, both houses of Congress had approved the Eleventh Amendment. Within a year, the requisite number of states ratified it, although it was three more years until the President issued a proclamation declaring the Eleventh Amendment to have been properly ratified.

American Constitutional Law, 2 Ed., 1988, p. 174.

Eleventh Amendment jurisprudence has left no doubt that the amendment not only reversed Chisholm, but also countermanded any judicial inclination to interpret article III as a self-executing abrogation of state immunity from suit, thereby reinstating the original understanding that the states surrendered sovereign immunity only to the extent inherent "on the acceptance of the constitutional plan."

Constitutional Law, 2008, p. 74, by Randy Barnett, discussing Chisholm and the 11th Amendment, footnote 9.

9. In February term, 1794, judgment was rendered for the Plaintiff, and a Writ of Enquiry awarded. The Writ, however, was not sued out and executed; so that this cause and all the other suits against States, were swept at once from the Records of the Court, by the amendment to the Federal Constitution, agreeably to the unanimous determination of the Judges, in Hollingsworth et al. v. Virginia, argued at February Term, 1798.

U.S. Supreme Court

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378

Olde English characters transliterated to modern characters for readability.

3 Dall. 378

The decision of the court, in the case of Chisholm Ex'or. versus Georgia, 2 Dall. Rep. 419, produced a proposition in Congress for amending the Constitution of the United States, according to the following terms:

"The judicial power of the United States shall not be construed to extend to any suit in law and equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The proposition being now adopted by the constitutional number of states, Lee, Attorney General, submitted this question to the Court—Whether the Amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits against any one of the United States by citizens of another state.

[...]

3 Dall. 382

The Court, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

nolu chan  posted on  2015-09-03   18:01:02 ET  Reply   Trace   Private Reply  


#12. To: nolu chan, Y'ALL (#9)

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble. - from the article....

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

Just above you claim that : ---

(Speaking about the direct incorporation theory) --- "It was squashed over two centuries ago by the 11th Amendment."

Your last post, and the wording of the 11th, does not prove that opinion.

Can you explain? - Granted, --- Christhom was squashed, -- but the theory was not, and once again you attempt to bury that fact with legal quotes that do NOT prove your point.

tpaine  posted on  2015-09-04   14:56:24 ET  Reply   Trace   Private Reply  


#13. To: tpaine (#12)

Just above you claim that : ---

(Speaking about the direct incorporation theory) --- "It was squashed over two centuries ago by the 11th Amendment."

A bullshit bastardized quote repeated does not get more impressive by bullshit repetition.

My #8 did not say that bullshit.

#8. To: tpaine (#0)

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble.

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

https://en.wikipedia.org/wiki/Chisholm_v._Georgia

Chisholm v. Georgia, 2 U.S. 419 (1793), is considered the first United States Supreme Court case of significance and impact. Given its date, there was little available legal precedent (particularly in American law). It was almost immediately superseded by the Eleventh Amendment.

http://www.georgiaencyclopedia.org/articles/government-politics/chisholm-v-georgia-1793

In the wake of this decision, however, howls of protest rose throughout the country. Within five years, U.S. Congress had proposed and the states had ratified the Eleventh Amendment, which overturned the principle of the Chisholm decision by providing that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State."

To this day, Chisholm stands as one of only a handful of Supreme Court rulings that have been overturned by constitutional amendment. Even more important, the Supreme Court has built on the repudiation of Chisholm to hold that the Eleventh Amendment exemplifies a sovereign-immunity principle that sweeps well beyond the amendment's text. Invoking this principle, the court has sheltered states from almost all money-damage actions brought in any court, even when initiated by a state's own residents based on clear violations of federal statutory law.

https://www.law.cornell.edu/constitution/amendmentxi

Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

nolu chan  posted on  2015-09-03   13:49:12 ET

As was made very abundantly clear by my #11

#11. To: tpaine (#9)

You claim that : ---

The direct incorporation theory --- "was squashed over two centuries ago by the 11th Amendment."

What you meant to quote:

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

Your bullshit "quotes" are not impressive. Chisholm was reversed by the 11th Amendment and jurisdiction of the Court over Chisholm and all such pending cases was taken removed by Hollingsworth v. Virginia.

The Court, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

American Constitutional Law, 10th Ed., Vol 1, 2013, p. 388. by Louis Fisher and Katy J. Harriger.

Louis Fisher worked at the Library of Congress as Senior Specialist in Separation of Powers and later as Senior Specialist in Constitutional Law.

Two months before the first Congress met, James Madison supported constitutional amendments to provide "for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c." 5 The Writings of James Madison 320 (letter to George Eve, January 2, 1789). The responsibility for moving these amendments through the House of Representatives fell to Madison, who argued that a Bill of Rights would remove apprehensions that the people felt toward the new national government. 1 Annals of Congress 431-33 (1789). He also wanted to place restrictions on the states and proposed that cc[n]o State shall violate the equal rights of conscience, of the freedom of the press, or the trial by jury in criminal cases." Id. at 435. The states "are as liable to attack these invaluable privileges as the General Government... Id. at 441. As finally drafted and ratified, however, the first ten amendments to the Constitution— the Bill of Rights—limited only the federal government.

In 1833, the Supreme Court reaffirmed that the Bill of Rights restrained only the federal government, not the states. At issue was the Just Compensation Clause of the Fifth Amendment. Barron v. Baltimore, 32 U.S. (7 Pet.) 243. The same conclusion was reached by the Court 25 years later. Withers v. Buckley, 20 How. (61 U.S.) 84, 89-90 (1858). However, the Civil War and passage of the Fourteenth Amendment in 1868 worked a fundamental change in federal-state relations.

A Practical Companion to the Constitution, p. 244, by Jethro K. Lieberman, emphasis as in original

In 1892 the first Justice John M. Harlan insisted that the Fourteenth Amendment prohibits the states from denying orr abridging any "of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States. In other words, the Fourteenth Amendment incorporates every provision in the Bill of rights. Harlan's was a minority voice. But in 1897 the Court for the first time declared that a stateviolates due process when it takes property without paying just compensation.

American Constitutional Law, 5th Ed., 2012, p. 28, by Otis S. Stephens and John M. Scheb II, emphasis as in original.

The Court has, however, endorsed a doctrine of selective incorporation by whichy most of the provision of the Bill of Rights have been extended to limit actions of the state and local governments. The process of selective incorporation began in 1897 in the case of Chicago, Burlington & Quincy Railroad Company v. Chicago.

Chisholm v. Georgia

Chief Justice Jay,

The question we are now to decide has been accurately stated, viz., Is a State suable by individual citizens of another State?

Justice Cushing,

The grand and principal question in this case is, whether a State can, by the Federal Constitution, be sued by an individual citizen of another State?

Justice Wilson,

The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States?

The Court said yes. The 11th Amendment said no.

Constitutional Law, 2009, p. 264, by Erwin Chemerinsky

State legislators and governors were outraged by the Supreme Court's decision in Chisholm v. Georgia. Georgia adopted a statute declaring that anyone attempting to enforce the Supreme Curt's decision is "hereby declared to be guilty of a felony, and shall suffer death, without the benefit of clergy by being hanged." The intenst reaction of Chiholm is reflected in the speed with which a constitutional amendment to overturn the decision was adopted. The Supreme Court decided Chisholm on February 14, 1794. By March 4, 1794, less than three weeks later, both houses of Congress had approved the Eleventh Amendment. Within a year, the requisite number of states ratified it, although it was three more years until the President issued a proclamation declaring the Eleventh Amendment to have been properly ratified.

American Constitutional Law, 2 Ed., 1988, p. 174.

Eleventh Amendment jurisprudence has left no doubt that the amendment not only reversed Chisholm, but also countermanded any judicial inclination to interpret article III as a self-executing abrogation of state immunity from suit, thereby reinstating the original understanding that the states surrendered sovereign immunity only to the extent inherent "on the acceptance of the constitutional plan."

Constitutional Law, 2008, p. 74, by Randy Barnett, discussing Chisholm and the 11th Amendment, footnote 9.

9. In February term, 1794, judgment was rendered for the Plaintiff, and a Writ of Enquiry awarded. The Writ, however, was not sued out and executed; so that this cause and all the other suits against States, were swept at once from the Records of the Court, by the amendment to the Federal Constitution, agreeably to the unanimous determination of the Judges, in Hollingsworth et al. v. Virginia, argued at February Term, 1798.

U.S. Supreme Court

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378

Olde English characters transliterated to modern characters for readability.

3 Dall. 378

The decision of the court, in the case of Chisholm Ex'or. versus Georgia, 2 Dall. Rep. 419, produced a proposition in Congress for amending the Constitution of the United States, according to the following terms:

"The judicial power of the United States shall not be construed to extend to any suit in law and equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The proposition being now adopted by the constitutional number of states, Lee, Attorney General, submitted this question to the Court—Whether the Amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits against any one of the United States by citizens of another state.

[...]

3 Dall. 382

The Court, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

nolu chan  posted on  2015-09-03   18:01:02 ET

Can you explain? - Granted, --- Christhom was squashed, -- but the theory was not, and once again you attempt to bury that fact with legal quotes that do NOT prove your point.

The 11th Amendment overturned Chisholm and Hollingsworth retroactively stripped the Chisholm court of jurisdiction, reducing it to a nullity. Citing a nullity as a source is unpersuasive.

Your jackass source stated, "The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble."

Purportedly some theory, not mentioned by Jay, was supported by Jay by his citing the Preamble.

The preamble was not adopted at the meeting of the convention. It was added later by the Committee on Style. It is of no legal effect. It is just another bullshit "legal" source. Citing discredited bullshit as a source is unpersuasive.

Jacobson v. Massachusetts, 197 U.S. 11, 22 (1904)

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, c. 75) is in derogation of rights secured by the Preamble of the Constitution of the United States. Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom. 1 Story's Const. § 462.

Define your "direct incorporation theory" and cite a valid legal authority in support of this bullshit.

Try not to cite a court opinion that has been reversed and then reduced to a nullity, or the preamble which has never been adopted as law.

As for how Jay and his theory fared, Chemerinsky is worth repeating,

Constitutional Law, 2009, p. 264, by Erwin Chemerinsky

State legislators and governors were outraged by the Supreme Court's decision in Chisholm v. Georgia. Georgia adopted a statute declaring that anyone attempting to enforce the Supreme Court's decision is "hereby declared to be guilty of a felony, and shall suffer death, without the benefit of clergy by being hanged." The intense reaction of Chiholm is reflected in the speed with which a constitutional amendment to overturn the decision was adopted. The Supreme Court decided Chisholm on February 14, 1794. By March 4, 1794, less than three weeks later, both houses of Congress had approved the Eleventh Amendment. Within a year, the requisite number of states ratified it, although it was three more years until the President issued a proclamation declaring the Eleventh Amendment to have been properly ratified.

Georgia threatened to hang anyone who attempted to enforce the ruling of the court. The Congress drafted and passed an Amendment reversing the Court within three weeks, and within a year it was ratified by the states. Having achieved an elevated state of wisdom, and not wishing to be hanged without benefit of clergy, the Court proceeded to reverse itself and retroactively strip the Chisholm court of jurisdiction, reducing that entire case and all the opinions, including Jay's, to a nullity.

Whatever Jay was selling, the states and the people were not buying. No sale.

nolu chan  posted on  2015-09-04   17:51:46 ET  Reply   Trace   Private Reply  


#14. To: nolu chan, Y'ALL (#0)

Restoring the Compact Theory Is Vital to Restoring the Constitution

Author --- Tim Dunkin

Dunkin sums up his article: ---

As those who established, ratified, and ordained the Constitution, the states (representing their separate peoples) certainly do have the right to stand in judgment of federal actions. The incorporationist theory of federalism is completely contrary to the explicit statements and intentions of those Founders who were most responsible for drafting the Constitution. The compact theory, on the other hand, was explicitly affirmed by them, and thus finds much greater support from the origination of our system of government than does the notion that the federal government is a creature of the people en masse, and that the states are subordinate and “unlimited in their submission” to the federal government.

The incorporationist doctrine should be rejected. The simple fact of its long use lends it no credibility – a bad idea is still bad, even if it has the weight of long usage behind it. If constitutionalists want to get back to the Constitution as it was really meant to be, then we must swing the pendulum back towards an affirmation of states’ rights under the compact theory.

I agree with Dunkin..

And you call the author petty names, - saying the article is 'bullshit'. Why is that?

tpaine  posted on  2015-09-04   20:27:05 ET  Reply   Trace   Private Reply  


#15. To: tpaine (#14)

Canada Free Press publishes wingnut law. Dunkin is prolific at it.

tpaine #1

As such, the supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.

The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches).

Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary.

Now, judicial review can be understood as an implied power of the federal courts – it makes sense that the judicial branch of the federal government would have the right to pass judgment on acts of the other two. However, because this same power was never once explicitly given only to the federal bench, nor denied to the states, it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary.

Read and learn

All Federal law, constitutional, statute and treaty, is supreme over any conflicting State law.

Article 6, Clause 2:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Supreme Court interpretation of the Constitution is binding on all, and cannot be superseded by State or Federal legislation. SCOTUS gets to say what the law is. Try passing a state law criminalizing abortion.

Dickerson v United States, 530 US 428, 437 (2000)

But Congress may not legislatively supersede our decisions interpreting and applying the Constitution. See, e. g., City of Boerne v. Flores, 521 U. S. 507, 517–521 (1997).

tpaine #6:

This fight was never lost. The supreme courts opinions are not part of our supreme law, and the other two Fed branches, AND the people of the States, -- can dispute them.

Nullification shall rise again!

The Supreme Court decisions are part of U.S. case law or common law. When interpreting the Constitution, SCOTUS is the final word within the government, and the Legislature and Executive cannot overturn such a SCOTUS ruling. The people can amend the Constitution.

Baker v. Carr, 369 U. S. 186, 211 (1962) the Court stated:

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.

tpaine #12:

And you call the author petty names, - saying the article is 'bullshit'. Why is that?

His claim that it "it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary," is bullshit. A state cannot overturn a federal statute. The bleat that a state has such power does not logically follow anything but a vivid imagination. State nullification has been dead for over two centuries. It logically follows that it is not rising from the grave any time soon.

Arguing state nullification in court logically precedes a court rebuke.

tpaine #12:

(Speaking about the direct incorporation theory) --- "It was squashed over two centuries ago by the 11th Amendment."

Your last post, and the wording of the 11th, does not prove that opinion.

Can you explain? - Granted, --- Christhom was squashed, -- but the theory was not, and once again you attempt to bury that fact with legal quotes that do NOT prove your point.

What theory? The only theory you mentioned was direct incorporation theory.

The direct incorporation theory was some rubbish served up by John Jay while amending the history to his Federalist liking. The 11th Amendment terminated the notion that a citizen of one state could sue another state. Courts do not decide theories, they decide cases; they interpret laws and decide their application. The Congress and the people, with the utmost dispatch, informed Jay that his version of the Constitution was not correct, and jammed their version down his throat.

Dunkin sums up his article: ---

As those who established, ratified, and ordained the Constitution, the states (representing their separate peoples) certainly do have the right to stand in judgment of federal actions. The incorporationist theory of federalism is completely contrary to the explicit statements and intentions of those Founders who were most responsible for drafting the Constitution. The compact theory, on the other hand, was explicitly affirmed by them, and thus finds much greater support from the origination of our system of government than does the notion that the federal government is a creature of the people en masse, and that the states are subordinate and “unlimited in their submission” to the federal government.

The incorporationist doctrine should be rejected. The simple fact of its long use lends it no credibility – a bad idea is still bad, even if it has the weight of long usage behind it. If constitutionalists want to get back to the Constitution as it was really meant to be, then we must swing the pendulum back towards an affirmation of states’ rights under the compact theory.

I agree with Dunkin..

If anyone does not get the last part of Dunkin, he makes it perfectly clear a little later, as was quoted approvingly in tpaine #1.

[T]he supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.

The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches). Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary. Now, judicial review can be understood as an implied power of the federal courts – it makes sense that the judicial branch of the federal government would have the right to pass judgment on acts of the other two. However, because this same power was never once explicitly given only to the federal bench, nor denied to the states, it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary.

State nullification was lost over two centuries ago. The Civil War did not bring it back. It would require another civil war with a different outcome.

States do not get to judge the constitutionality of Federal laws. That was firmly decided over two centuries ago.

At #12 you were just saying the direct incorporation theory had not been squashed as I had purportedly asserted (I asserted that Chisholm was squashed). Props, however, for this attempt to reverse your position, and agree with "[t]he incorporationist theory should be rejected."

The insane conclusions of Tim Dunkin should be rejected. Because the power of judicial review was not explicitly delegated to the Federal courts, it does not "logically follow" that judgment of Federal statutes was somehow delegated to each and every state judicial system. The Constitution, treaties of the United States, and Federal laws are the supreme law of the land. Federal laws may be challenged in Federal court.

Dunkin wrote:

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble.

[...]

Two general arguments were consistently used by proponents of the direct incorporation theory to attempt to discredit the compact theory. These were:

1) The Preamble of the Constitution declares that, “We the people of the United States, in order to form a more perfect union…” As a result, the Constitution was clearly intended from the very beginning to be a direct creation of the body of people in the nation themselves. As a result, the states have no prior claim, via the compact theory, to sit in judgment upon unconstitutional federal acts – only the people themselves, through the federal government, may do so.

2) As a consequence of the first argument, the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.

The Constitution is the supreme law of the land because Article 6 states, "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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." It is not the law of the land because of anything the Preamble says, or as a result of any interpretation of the Preamble. The Preamble is not law, but Article 6 is the paramount and supreme law.

I opined the author failed to note that Chisholm was squashed, first overturned by the 11th Amendment in less than a year, with Jay's resignation from the bench following a few months after ratification, and then the Court reversed position and rendered the whole case a nullity by retroactively withdrawing jurisdiction via Hollingsworth.

Look at what Chisholm stated:

Chisholm v. Georgia, 2 US 470-71 (1793) (4-1, Jay CJ; Blair, Williams, Cushing JJ; Iredell, J dissenting.

The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions, and other temporary arrangements. From the crown of Great Britain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that crown, passed not to the people of the Colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a general Government. Experience disappointed the expectations they had formed from it; and then the people, in their collective and national capacity, established the present Constitution. It is remarkable [471] that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, 'We the people of the United States, do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner.

That is such outrageous bullshit, John Jay should have been hanged without benefit of clergy, or impeached and removed from the bench. He did the next best thing and resigned in 1795.

Constitutional Law, 2009, p. 264, by Erwin Chemerinsky

State legislators and governors were outraged by the Supreme Court's decision in Chisholm v. Georgia. Georgia adopted a statute declaring that anyone attempting to enforce the Supreme Curt's decision is "hereby declared to be guilty of a felony, and shall suffer death, without the benefit of clergy by being hanged." The intenst reaction of Chisholm is reflected in the speed with which a constitutional amendment to overturn the decision was adopted. The Supreme Court decided Chisholm on February 14, 1794. By March 4, 1794, less than three weeks later, both houses of Congress had approved the Eleventh Amendment. Within a year, the requisite number of states ratified it, although it was three more years until the President issued a proclamation declaring the Eleventh Amendment to have been properly ratified.

February 7, 1795, North Carolina was the 12th state to ratify the 11th Amendment.

June 29, 1795, John Jay resigned from the Court.

The thirteen sovereign states did not make one, consolidated mass of people. The people did not, in their collective and national capacity, establish the Constitution or do anything else, either then or at any time since.

Indeed, if the people acted in a collective, national capacity, what people were they that resulted with a Washington Inauguration and ELEVEN states in the union, Washington having been unanimously elected by TEN of them.

The people have no capability of exercising their sovereignty in a collective, national capacity, then or now. Sovereignty was exercised by the political communities known as states. The Constitution explicitly declared, "The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." When Washington was inaugurated, eleven states had ratified, and the Constitutional was established between those ELEVEN states. The two holdouts were North Carolina and Rhode Island.

How could the people have acted in a collective mass and left two states out?

This was the consolidated union of Federalist bullshit. The reality was a a union of ELEVEN states that was created only four years before Jay tried to rewrite history at the Supreme Court. The Bill of Rights was passed by the congress of ELEVEN states. 12 Amendments were sent to the states in August of 1789. North Carolina and Rhode Island had still not ratified the Constitution.

Here you go. Read some early history of the ELEVEN states.

The Congressional register; or, History of the proceedings and debates of the first House of representatives of the United States of America; namely, New-Hampshire, Massachusetts, Connecticut, New York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, South-Carolina and Georgia, being the eleven states that have ratified the constitution of the government of the United States.

Volumes 2 and 3 also contain the debates of the House of Representatives of the United States of America; namely, New-Hampshire, Massachusetts, Connecticut, New York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, South-Carolina and Georgia, being the eleven states that have ratified the constitution of the government of the United States.

Congressional Register Volume 1, aka Lloyd's Debates (1789) by nolu chan

November 21, 1789: North Carolina ratifies. Vote: 194 for, 77 against.

May 29, 1790: Rhode Island ratifies. Vote: 34 for, 32 against.

And there is more by Tim Dunkin saying that states can nullify federal laws by enacting "state law that directly overturns it." Suuure, they can.

http://canadafreepress.com/print-friendly/70165

Principles of Constitutionalism: Federalism as a Check on Federal Power

By Tim Dunkin March 2, 2015 | Comments| Print friendly |

In the previous installment of this series, I discussed the constitutional principle of the separation of powers as a check on the accumulation of government force into the hands of any one man or group of men. Now, I would like to discuss the other intended division of power—the principle of federalism that was engineered into our constitutional system. This principle should be—and would be, if we would use it effectively—an even more powerful deterrent to federal government overreach than even the separation of powers between the three branches of government at the federal level.

The reason for is this is that, while the branches of the federal government may (and are, as we are seeing today) act in collusion to form an oligarchical clique working against a common enemy (the American people), the state governments are closer to the people, usually have more of their affection than does the federal government, and present a divided set of power centers that are less easily to be uniformly brought into collusion against We the People. While a few states like California, New York, Illinois, and Massachusetts may become corrupted by the spreading rot from Washington D.C., other states can serve as palladia of liberty against this rot, and can work to maintain the liberties of their people.

The primary means through which this should be done is the long-despised yet still constitutionally necessary principle of nullification.

If you believed everything that you learned in your civics classes in the publik skoolz, you know that nullification of federal laws by state governments is unconstitutional, right? Well, not really.

[snip]

Spouting wingnuttery does not make it law. Nullification is not the law. Any state that chooses to nullify a Federal law by passage of a nullifying State statute will prove that it is not the law.

Tim Dunkin is a idiot, who does not know what he is talking about, as the following article proves. Just about all his fantastic legal statements and conclusions are complete bullshit. Hot damn, anchor babies were a new innovation discovered by Justice Brennan in 1982 in a footnote to Plyler v. Doe.

http://canadafreepress.com/article/74841

The Children of Illegal Immigrants Are Not Born American Citizens

By Tim Dunkin -- Bio and Archives August 28, 2015

[excerpt]

As such, it ought to be apparent from all that has been said above that there simply is no constitutional right to natural born citizenship for the children of illegal aliens in the United States. As such, making the much-needed reforms in our immigrations laws so as to explicitly close this loophole can in no way be called “unconstitutional.” All that is needed is for Congress to act to pass the necessary statutory law to clarify this area and close the hole. No constitutional amendment is needed, for the current interpretation of the Citizenship Clause is just that—an interpretation. Further, it is an interpretation that does not actually rest on common law, as we have seen above, but is actually a relatively new innovation in US constitutional law, first finding expression in a footnote to Justice Brennan’s opinion in the 1982 case of Plyler v. Doe. In this footnote (which qualifies as obiter dicta, a statement that does not actually carry any weight as precedent), Brennan stated,

“As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Birthright citizenship has been recognized in the states since 1776. Before that, it was recognized in the colonies.

nolu chan  posted on  2015-09-05   16:41:40 ET  Reply   Trace   Private Reply  


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