"We The Who?"

[Lonecowboy]

January 9, 2011

"We the people" or we the judges

By Ronald R. Cherry

Representative Henry Waxman (D-Calif.) recently stated:

"When I went to law school they said the law's what a judge says it is. Whether it is constitutional or not is going to be whether the Supreme Court says it is."

Such an opinion runs counter to that of our Founding Fathers. The men who wrote our Constitution believed that "We the People" should ultimately decide whether or not a law is Constitutional because "We the People" did "ordain and establish this Constitution for the United States of America." Our Constitution was not ordained or established by "We the Judges" and therefore Supreme Court Judges should not be the "ultimate arbiters of all Constitutional questions." Thomas Jefferson specifically refuted the opinion of Henry Waxman in his 1820 letter to William Jarvis:

"You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy... The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots... I know of no safe depository of the ultimate powers of the society, but the people themselves..." Thomas Jefferson

In Marbury vs. Madison the Supreme Court delegated to its self, under Article III, a power to strike down the laws of Congress if the Court believed them to violate our Constitution. This is fine and well, but the question then arises who strikes down un-Constitutional Supreme Court decisions? The question is rhetorical; "We the People" through our elected representatives must be empowered to strike down un-Constitutional decisions of the Supreme Court. One way for "We the People" to override an un-Constitutional Supreme Court is for us to pressure multiple State Legislatures to nullify such decisions within their respective borders. State nullification can also be used to strike down un-Constitutional Federal legislation if the Supreme Court fails in its duty to do so. The power of States acting in concert to enforce our Constitution was expressed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798, and in James Madison's 1834 Notes on Nullification.

"Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force... that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers..." Thomas Jefferson — 1798 Kentucky Resolution

"The course & scope of the reasoning [1798 Virginia Resolution] requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constitution., the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities [Congress and President]. The [Virginia] resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Government from the fact that its powers were limited to the grant made by the States [Constitution]... The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties [States] themselves... in the event of usurpations of power not remediable under the forms and by the means provided by the Constitution [Article V Amendment]... It is sometimes asked in what mode the States could interpose in their collective character as parties to the Constitution against usurped power. It was not necessary for the object & reasoning of the resolutions & report that the mode should be pointed out. It was sufficient to shew that the authority to interpose existed, and was a resort beyond that of the Supreme Court of the U. S. or any authority derived from the Constitution [Congress and President]." James Madison — 1834 Notes on Nullification

It is clear from Thomas Jefferson and James Madison that our Federal Government; including the President, Congress and the Supreme Court, is inferior to the State Legislatures when they act in concert. Several States acting together, within their respective borders, have the power to reverse un-Constitutional Federal Law, un-Constitutional Presidential Executive Orders and un-Constitutional Supreme Court Decisions. It is also clear from Article V of our Constitution that the States, acting in ¾ majority, have the power to amend our Constitution without permission of Federal Government — just as the States acted in concert to create our Federal Government. The 1787 Constitutional Convention in Philadelphia represented the 13 States who, acting in concert, created our Constitution and thereby our Federal Government. Federal Government is the creature and is therefore inferior to its creator — the States. Just as Federal Government — including the Supreme Court — is inferior to "We the People" and "The Several States," it should now be clear that Henry Waxman's opinion regarding the ultimate law-deciding power of our Supreme Court is inferior to that of Thomas Jefferson and James Madison, and also inferior to that of Abraham Lincoln:

" We The people — are the rightful masters of both congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it." Abraham Lincoln

 

[Mike]

Bravo!

 

[Lonecowboy]

gosh I was just sure oldtimer would wade in on this one!

 

[Mike]

The undebatable cannot be debated.

 

[Anonymous]

gosh I was just sure oldtimer would wade in on this one!

" We The people — are the rightful masters of both congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it." Abraham Lincoln

Why- I agree... Thats why I've said if you don't like the current court rulings or laws- you have the ability to change it by electing people that will pass laws or Constitutional Amendments overriding those laws...
If you think a balanced budget should be in the Constitution- pass a balanced budget amendment...

But thats also why I say in order to do that you have to be in the majority to get enough of those folks elected/appointed... And also why I said as the thinking of the majority of the country has changed over the years- the interpretation of the Constitution has also changed to follow the thinking of that majority...

 

[hypocritexposer]

If you think a balanced budget should be in the Constitution- pass a balanced budget amendment...

Why not just cut out the budget items that are not Constitutional?

 

[Anonymous]

If you think a balanced budget should be in the Constitution- pass a balanced budget amendment...

Why not just cut out the budget items that are not Constitutional?

So who again is the decider if its Constitutional or not?... One legislator says no- the other says it is...

If a majority wanted to they could cut back on spending until it was balanced - but they've had that opportunity for the past 70 years and seldom done it...

 

[Steve]

If a majority wanted to they could cut back on spending until it was balanced - but they've had that opportunity for the past 70 years and seldom done it...

in 2010 a new majority took the congress, and a group of them have attempted to cut back spending, only to be slandered, lied about and vilified by the media, and other liberals who twisted statements and facts to make them look like an isolated bunch of extremists..

no wonder little has been done in the last 70 years.. it is difficult to right things when your getting tared and feather by the press.

 

[Lonecowboy]

gosh I was just sure oldtimer would wade in on this one!

" We The people — are the rightful masters of both congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it." Abraham Lincoln

Why- I agree... Thats why I've said if you don't like the current court rulings or laws- you have the ability to change it by electing people that will pass laws or Constitutional Amendments overriding those laws...
If you think a balanced budget should be in the Constitution- pass a balanced budget amendment...

But thats also why I say in order to do that you have to be in the majority to get enough of those folks elected/appointed... And also why I said as the thinking of the majority of the country has changed over the years- the interpretation of the Constitution has also changed to follow the thinking of that majority...

It is clear from Thomas Jefferson and James Madison that our Federal Government; including the President, Congress and the Supreme Court, is inferior to the State Legislatures when they act in concert. Several States acting together, within their respective borders, have the power to reverse un-Constitutional Federal Law, un-Constitutional Presidential Executive Orders and un-Constitutional Supreme Court Decisions.

so where do you see this going oldtimer, since 26 states( a majority unless you use obama's count ) have filed that obamacare is unconstitutional. Do we need to pass an ammendment specifically deneying the federal govt' from forcing us to buy a product? Oh we already did, the 10th ammendment, which they are disregarding totally.
So state legislatures, (elected by the majority in the state) should just nullify it within their state. What do you think of this oldtimer?

the last I looked 11 states passed legislation ruling the the federal govt. had no say so in guns made and sold within the state ( Montana Firearm Freedom Act)

How many states nullified the real ID act?

we don't need judges to read for us. we can read and comprehend on our own.

 

[Anonymous]

gosh I was just sure oldtimer would wade in on this one!

" We The people — are the rightful masters of both congresses, and courts — not to overthrow the Constitution, but to overthrow the men who pervert it." Abraham Lincoln

Why- I agree... Thats why I've said if you don't like the current court rulings or laws- you have the ability to change it by electing people that will pass laws or Constitutional Amendments overriding those laws...
If you think a balanced budget should be in the Constitution- pass a balanced budget amendment...

But thats also why I say in order to do that you have to be in the majority to get enough of those folks elected/appointed... And also why I said as the thinking of the majority of the country has changed over the years- the interpretation of the Constitution has also changed to follow the thinking of that majority...

It is clear from Thomas Jefferson and James Madison that our Federal Government; including the President, Congress and the Supreme Court, is inferior to the State Legislatures when they act in concert. Several States acting together, within their respective borders, have the power to reverse un-Constitutional Federal Law, un-Constitutional Presidential Executive Orders and un-Constitutional Supreme Court Decisions.

so where do you see this going oldtimer, since 26 states( a majority unless you use obama's count ) have filed that obamacare is unconstitutional. Do we need to pass an ammendment specifically deneying the federal govt' from forcing us to buy a product? Oh we already did, the 10th ammendment, which they are disregarding totally.
So state legislatures, (elected by the majority in the state) should just nullify it within their state. What do you think of this oldtimer?

the last I looked 11 states passed legislation ruling the the federal govt. had no say so in guns made and sold within the state ( Montana Firearm Freedom Act)

How many states nullified the real ID act?

we don't need judges to read for us. we can read and comprehend on our own.

The Healthcare law legally passed by a majority of both houses of Congress- and was signed by the President...Now the final decision is in the hands of the SCOTUS...Whichever they rule could then be altered by Constitutional Amendment...

To do a Constitutional Amendment- to remove each of these issues from the federal control that has been granted them thru previous legally passed laws and court rulings- you need passage by 2/3 of the lawmakers and ratification by 38 states...
We are far from that on any of the issues... Unless you think we should change the way the Constitution should be amended too :???:

 

[Lonecowboy]

Why- I agree... Thats why I've said if you don't like the current court rulings or laws- you have the ability to change it by electing people that will pass laws or Constitutional Amendments overriding those laws...
If you think a balanced budget should be in the Constitution- pass a balanced budget amendment...

But thats also why I say in order to do that you have to be in the majority to get enough of those folks elected/appointed... And also why I said as the thinking of the majority of the country has changed over the years- the interpretation of the Constitution has also changed to follow the thinking of that majority...

It is clear from Thomas Jefferson and James Madison that our Federal Government; including the President, Congress and the Supreme Court, is inferior to the State Legislatures when they act in concert. Several States acting together, within their respective borders, have the power to reverse un-Constitutional Federal Law, un-Constitutional Presidential Executive Orders and un-Constitutional Supreme Court Decisions.

so where do you see this going oldtimer, since 26 states( a majority unless you use obama's count ) have filed that obamacare is unconstitutional. Do we need to pass an ammendment specifically deneying the federal govt' from forcing us to buy a product? Oh we already did, the 10th ammendment, which they are disregarding totally.
So state legislatures, (elected by the majority in the state) should just nullify it within their state. What do you think of this oldtimer?

the last I looked 11 states passed legislation ruling the the federal govt. had no say so in guns made and sold within the state ( Montana Firearm Freedom Act)

How many states nullified the real ID act?

we don't need judges to read for us. we can read and comprehend on our own.

The Healthcare law legally passed by a majority of both houses of Congress- and was signed by the President...Now the final decision is in the hands of the SCOTUS...Whichever they rule could then be altered by Constitutional Amendment...

To do a Constitutional Amendment- to remove each of these issues from the federal control that has been granted them thru previous legally passed laws and court rulings- you need passage by 2/3 of the lawmakers and ratification by 38 states...
We are far from that on any of the issues... Unless you think we should change the way the Constitution should be amended too :???:

your backwards oldtimer- they would need a Constitutional ammendment to give them the power to make us purchase a product. we already have the 10th ammendment, for one, to protect us on this. and you totally ignored the ability of states to nullify unconstitutional actions- we don't need the SCOTUS for this- we didn't need the SCOTUS to nullify the real ID act did we? The final say is NOT in the hands of the SCOTUS it is in the hands of WE the People! OR DO YOU DENY STATES HAVE THE RIGHT TO NULLIFY UNCONSTITUTIONAL ACTIONS?

oldtimer wrote:

to remove each of these issues from the federal control that has been granted them thru previous legally passed laws and court rulings-

Thank You for acknowledging that these "powers" did not come from our Constitution!

Part of Article 6 of our Constitution:
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;

 

[Anonymous]

your backwards oldtimer- they would need a Constitutional ammendment to give them the power to make us purchase a product.

Not if the SCOTUS rules its Constitutional....Then the only way to change that ruling is by a Constitutional Amendment outlawing that power...

 

[Lonecowboy]

your backwards oldtimer- they would need a Constitutional ammendment to give them the power to make us purchase a product.

Not if the SCOTUS rules its Constitutional....Then the only way to change that ruling is by a Constitutional Amendment outlawing that power...

what good would that do- we already have an ammendment "outlawing that power" the 10th ammendment that you so convieniently forget.
as do obama, pelosi, tester, et.al.

you have it backwards oldtimer- our Constitution grants certain, specified powers to the fed. govt. all others are retained to the states and We the People- they need an ammendment to recieve that new power. Where after 230+ years of your preciouse precedence did this new power come from? it was not granted by our Constitution!

 

[Anonymous]

your backwards oldtimer- they would need a Constitutional ammendment to give them the power to make us purchase a product.

Not if the SCOTUS rules its Constitutional....Then the only way to change that ruling is by a Constitutional Amendment outlawing that power...

what good would that do- we already have an ammendment "outlawing that power" the 10th ammendment that you so convieniently forget.
as do obama, pelosi, tester, et.al.

you have it backwards oldtimer- our Constitution grants certain, specified powers to the fed. govt. all others are retained to the states and We the People- they need an ammendment to recieve that new power. Where after 230+ years of your preciouse precedence did this new power come from? it was not granted by our Constitution!

BUT-historically for 230+ years a law is the law of the land after being passed by the Congress and signed by the President- and is presumed to be Constitutional until challenged and ruled Unconstitutional by the courts - or until altered by Constitutional Amendment...

Several states have introduced various resolutions and legislation in protest to federal actions. Despite this, the Supreme Court has explicitly rejected the idea that the states can nullify federal law. In Cooper v. Aaron (1958), the Supreme Court of the United States held that federal law prevails over state law due to the operation of the Supremacy Clause, and that federal law "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes . . . ."

Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact.

Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S. legal system, and mandates that all state judges must follow federal law when a conflict arises between federal law and either the state constitution or state law of any state. (Note that the word "shall" is used, which makes it a necessity, a compulsion.) However, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally authorized powers, as noted by the phrase "in pursuance thereof" in the actual text of the Supremacy Clause 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.

The "supremacy clause" is the most important guarantor of national union. It assures that the Constitution and federal laws and treaties take precedence over state law and binds all judges to adhere to that principle in their courts. - United States Senate

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
14th Amendment

You need a Constitutional Amendment now if you want to change this as there is precedence supporting the federal side going back to 1796...

Without the supremacy clause we could have states passing all kinds of individual laws- like breaking off from the union- and starting a new country- and wanting slavery while the rest of the country is against it...The reason we fought a civil war against the last group that rebelled against the union... :roll:

 

[Steve]

The decision is likely to be handed down in late June, right before the Republican and Democratic conventions for the 2012 presidential election.

The main question in the dispute that's expected to be heard over two days in March is whether in requiring most Americans to buy insurance by 2014 or face a tax penalty, Congress exceeded its power to regulate interstate commerce. The justices also will address whether the entire law is doomed if that mandate to buy insurance falls. They will also review a provision that expands eligibility for Medicaid, the federal-state program for the poor.

When the 11th Circuit struck down the insurance mandate Aug. 12, it said Congress' requirement that people buy insurance from private companies was an "unprecedented" exercise in federal power that imperiled the balance between federal and state authority.

The high court will take up that ruling, ... as well as the 11th Circuit's decision that upheld the law's expansion of Medicaid eligibility and said the invalid individual-insurance mandate could be severed from the rest of the law.

Supreme Court's planned review of health-care law shocks Medicaid advocates

While there was no surprise over the Supreme Court's decision Monday to review the 2010 health-care act's insurance mandate, supporters of the law are reeling over the justices' announcement that they will also consider a long-shot challenge to what many consider an even more central provision of the statute.

That provision is the extension of Medicaid to cover a greater number of the poor. Twenty-six states say the expansion amounts to an unconstitutional coercion of state governments, which provide part of Medicaid's funding.

Specifically, the law vastly broadens the minimum eligibility requirements for Medicaid, which provides health insurance to the poor and disabled with a combination of federal and state dollars.

The 26 Republican state attorneys general and governors who filed the challenge to Medicaid expansion contend that these changes unconstitutionally force them to increase their spending on the program.

I feel it is well past time for the commerce clause to be curtailed..

by overreaching it's federal powers, the democratic controlled congress and senate, and President may see federal powers severely curtailed,,,


it will soon be over... one way or another.. and it may take the medicaid laws with it... (just one of those unintended consequences)

 

[Lonecowboy]

oldtimer wrote:

Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact.

so us not having real ID is only symbolic oldtimer?

or how about medical marijuana? symbolic?

what about the states that have passed laws saying anyone trying to enforce certain federal laws within the boundry's of their state are subject to arrest, fines and imprisonment? symbolic?

 

[Anonymous]

oldtimer wrote:

Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact.

so us not having real ID is only symbolic oldtimer?

It is still coming- all Schweitzer and the legislature did was give us time (an extension) to convert without so much cost...But all new D/L's eventually will have to meet the requirements of real ID...In order for their licenses to be accepted for federal purposes, all people born after December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2014. Additionally, in order to be accepted for federal purposes, people born before December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2017. Federal purpose include access to all federal buildings, air travel (probably all public transport), banking at any federal insured institution, etc. etc.


All Congressional attempts to repeal the law (some by Baucus and Testor) have been unsuccessful- and as far as I know all filings to the federal courts have been rejected...


or how about medical marijuana? symbolic?

Under state law medical marijuana is legal- but as shown with some of the raids GW's authorities conducted in the western part of the state and California- it is still illegal under federal law... Not much has came about lately- as the Obama DEA has concentrated on other drug issues- but marijuana possession/sale is still a federal crime in Montana..


what about the states that have passed laws saying anyone trying to enforce certain federal laws within the boundry's of their state are subject to arrest, fines and imprisonment? symbolic?

Yep- symbolic... Stand out in front of the FBI and try and stop them from enforcing a federal law- or a US Marshal serving a federal seizure warrant/order- or the DEA from enforcing Federal marijuana laws in Montana----and there is no doubt in my mind who will be in jail for Interfering with a Federal Officer.. And I'm not sure I have enough pocket cash to meet the feds bailbonds for you :wink:

 

[Lonecowboy]

oldtimer wrote:

Thus, state laws purporting to nullify federal statutes or to exempt states and their citizens from federal statutes have only symbolic impact.

so us not having real ID is only symbolic oldtimer?

It is still coming- all Schweitzer and the legislature did was give us time (an extension) to convert without so much cost...But all new D/L's eventually will have to meet the requirements of real ID...In order for their licenses to be accepted for federal purposes, all people born after December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2014. Additionally, in order to be accepted for federal purposes, people born before December 1, 1964 will be required to have Real-ID-compliant cards by December 1, 2017. Federal purpose include access to all federal buildings, air travel (probably all public transport), banking at any federal insured institution, etc. etc.


All Congressional attempts to repeal the law (some by Baucus and Testor) have been unsuccessful- and as far as I know all filings to the federal courts have been rejected...


or how about medical marijuana? symbolic?

Under state law medical marijuana is legal- but as shown with some of the raids GW's authorities conducted in the western part of the state and California- it is still illegal under federal law... Not much has came about lately- as the Obama DEA has concentrated on other drug issues- but marijuana possession/sale is still a federal crime in Montana..


what about the states that have passed laws saying anyone trying to enforce certain federal laws within the boundry's of their state are subject to arrest, fines and imprisonment? symbolic?

Yep- symbolic... Stand out in front of the FBI and try and stop them from enforcing a federal law- or a US Marshal serving a federal seizure warrant/order- or the DEA from enforcing Federal marijuana laws in Montana----and there is no doubt in my mind who will be in jail for Interfering with a Federal Officer.. And I'm not sure I have enough pocket cash to meet the feds bailbonds for you :wink:

oldtimer you have a disease- blamebushitis- it was obama's raid -and what about those found not guilty at a jury trial- the jury nullified it too because it is legal in Montana!

and the County Sheriff is the highest ranking law enforcement officer in the county and he can stop federal agents and arrest them if necessary.

you sure are in love with the federal govt. and want to give them all kinds of powers they don't have. Read our Constitution!

 

[loomixguy]

oldtimer you have a disease- blamebushitis- it was obama's raid -and what about those found not guilty at a jury trial- the jury nullified it too because it is legal in Montana!

and the County Sheriff is the highest ranking law enforcement officer in the county and he can stop federal agents and arrest them if necessary.

you sure are in love with the federal govt. and want to give them all kinds of powers they don't have. Read our Constitution!

Actually, LC, I believe that the County Attorney is the highest ranking LEO in his county, NOT the Sheriff, and can tell the FBI, Secret Service, etc. to suck it and order them out of the county. He can also order the Sheriff to perform his duties, even if the Sheriff is loathe to do so.

I know of instances here in Nebraska where certain State Patrol officers have been thrown out of certain counties, along with FBI Agents being treated the same way. Jack booted thugs all.

 

[Lonecowboy]

oldtimer you have a disease- blamebushitis- it was obama's raid -and what about those found not guilty at a jury trial- the jury nullified it too because it is legal in Montana!

and the County Sheriff is the highest ranking law enforcement officer in the county and he can stop federal agents and arrest them if necessary.

you sure are in love with the federal govt. and want to give them all kinds of powers they don't have. Read our Constitution!

Actually, LC, I believe that the County Attorney is the highest ranking LEO in his county, NOT the Sheriff, and can tell the FBI, Secret Service, etc. to suck it and order them out of the county. He can also order the Sheriff to perform his duties, even if the Sheriff is loathe to do so.

I know of instances here in Nebraska where certain State Patrol officers have been thrown out of certain counties, along with FBI Agents being treated the same way. Jack booted thugs all.

that might be loomixguy- but what happens when the sheriff tells the County Attorney to beat it? not arguing just wanting to learn- I have read lots of material where the Sheriff is the highest ranking. nothing about C.A.- A duly elected by We the People LEO outranks an appointed beaurocrat everytime. as Ben Franklin so aptly put it:

It is the first responsibility of every citizen to question authority." –

:shock: