Quote :

"Tuesday, May. 19, 2009 SC groups call for passage of states rights bill The Associated Press COLUMBIA, S.C. -- Conservative groups called on South Carolina legislators Tuesday to pass a measure that declares the state has the right to ignore any federal law or policies it deems unconstitutional. Republican legislators say they want to send a message to Washington that the federal government is overstepping its bounds, from gun control to the No Child Left Behind education accountability law. Democrats contend it's a partisan issue directed at the federal stimulus package, and the measure will have no practical effect. The bill notes the 10th Amendment in the U.S. Constitution gives all powers not delegated to the federal government to states. It would be sent to President Barack Obama, congressional leaders and South Carolina's delegation. About two dozen residents from limited-government groups threatened to camp out at the Statehouse until senators approve the measure. The House passed a similar resolution in February. "We feel our legislators are failing us," said Harry Kibler, state director of The Patriotic Resistance. Sen. Phil Leventis called the debate a "silly waste of time" that Congress will disregard. With just two days left in session, "here we are today debating whether or not we're going to ask Congress to obey the law," said the Sumter Democrat. "I bet they would open their junk e-mails before they open this." Similar resolutions have been introduced in dozens of states across the nation. A handful of Republican-leaning states have approved the measure, while three states have rejected it, said Michael Boldin of the Tenth Amendment Center. He contends it should not be a partisan measure, noting the first resolution was proposed in mid-2008 to bring attention to bailouts and other actions taken by President Bush. "If it's just political posturing," it won't have any affect, he said. "

http://www.thestate.com/statewire/story/792818.html

Haha, good stuff, man. I lol'ed quite heavily at this on the way to work, because I can see exactly how this would play out:

Uncle Sam: Hey, here's a new law
SC: Hey, fuck you, I do what I want
Uncle Sam: [tanks rolling through Columbia] Oh, really?



While I agree with the sentiment, I think the biggest problem with this bill, aside from the fact that it has no teeth, is that an individual State can't really decide what is Constitutional or not, or so I would think. It simply doesn't have the authority to do so. At best, all a state could hope to do is get a case up to the Supreme Court (judicial activism, aside) and have the Court make the decision. And this, of course, doesn't stop Congress from just stealing the state's tax money in the process (drinking ages ring a bell?) and fucking over the state anyway.

Seems to me that this group should do a better job spreading its message and getting people with similar views elected to national gov't than waste time pissing around in state legislatures.

5/19/2009 6:42:11 PM

First, no state has the balls to actually do this. Even the people trumpeting it would back down quickly just under public pressure without the tanks.

Secondly, as long as they lap from the federal teat, they are radically hypocritical. If they first advocated that SC refuse all federal money, then they might have some integrity.

Third, I wish the first two were the case. I would immediately move to any state that seriously began that kind of process.

Fourth, it ain't gonna happen. And if it does, it'll be NH or Montana.

Quote :

"Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force"

- Thomas Jefferson

[Edited on May 19, 2009 at 7:37 PM. Reason : s]

5/19/2009 7:34:14 PM

South Carolina's already tried the nullification thing.

Oh, and:

Uncle Sam: Hey, here's a new law
SC: Hey, fuck you, I do what I want
Uncle Sam: [turning off the federal money hose] Oh, really?


Oh, and what's with the states' rights furor all of a sudden? Where were they when their party was doing 98.5% of what they're supposedly outraged over now that the other party's doing it?

5/19/2009 7:42:08 PM

^^ that's fine, except for the fact that it's something TJ said, not a law, supreme court ruling, or part of the Constitution.

^ shhhh, don't bring up the fact that the republicans are democrats, lol

5/19/2009 7:43:03 PM

The argument didn't even work for Jefferson during his time. I assume that quote is from the Virginia and Kentucky Resolutions? Yeah. Not so successful.

5/19/2009 7:51:37 PM

Nullification? Really?

5/19/2009 7:54:28 PM

This is not a legal question; it is a moral question.

It is absolutely impossible for this question to be resolved in any legal proceeding, because the position assumes that states get to decide what is constitutional. So, if it goes to the USSC, and the state loses.....big deal. If the Supremes rule against them (and they would), it doesn't matter to them at all - because the state still gets to decide what is constitutional. You might get a ruling, but not one that the state would accept, and you're still stuck in the same conundrum.

The moral question is strikingly clear - should the federal government use its guns to keep a people from governing themselves if they wish to do so peacefully? Should the U.S. punish peaceful (political) divorce with death? Some government of, by and for the people. If the U.S. feels the state does not have the right to pick and choose what it accepts, then kick them out of the union. But not by force.

This is why the issue went to war the first time. Legal proceedings are useless, as there is no common authority that both the federal government and the dissenting state would accept as authoritative. And that leaves the issue to be settled by guns.

And, of course, as Jefferson Davis said, "any question settled by force remains unsettled forever."

[Edited on May 19, 2009 at 8:04 PM. Reason : a]

5/19/2009 8:02:46 PM

Quote :

"The moral question is strikingly clear - should the federal government use its guns to keep a people from governing themselves if they wish to do so peacefully?"

If you are talking about secession, then I can't disagree with your point. But, when it comes to federal law, I think the question is a bit more complicated than that.

5/19/2009 8:09:08 PM

Well, in federal law, I think the states would have a hard time making a case. I've not researched it thoroughly precisely because I think it's irrelevant.

In any federal legal wrangling, the state's position itself confesses that it may not (and will not) abide by the ruling of whatever federal official they're arguing in front of. So, the strength of their legal case doesn't matter too much. Instead, the question, as I said, turns to moral principles.

[Edited on May 19, 2009 at 8:14 PM. Reason : a]

5/19/2009 8:13:43 PM

well, it's not exactly irrelevant to the OT... With what else would a state be disagreeing other than federal law and policies?

5/19/2009 8:16:03 PM

A government is only a just one when 100% of people agree with it 100% of the time.

Otherwise it's tyranny propped up by bayonets.

5/19/2009 8:19:20 PM

Quote :

"With what else would a state be disagreeing other than federal law and policies?"

I'll rephrase.

They would be disagreeing with federal law and policies. But that disagreement is based on a view that no federal official of any branch has authority to speak on the issue at all. They would reject the federal law as being outside of federal jurisdiction.

If that's the case, then any federal court/official/committee the state argues this in front of is, by definition, not qualified to make a ruling at all. And so any argument they would make to that official doesn't matter, because they have no intention of recognizing the federal decision on the matter.

It might go like this, on a silly example:

Feds: Hey states, everybody make the minimum drinking age 25.
State: Hell no, that's our business to decide.

The state and the feds go to federal court arguing over the issue:
Feds: They must do what we say!
State: We don't have to!
Court: The feds are right. Hey state, you gotta submit.
State: We already said this isn't federal business - for the legislature or for this court. Screw you!

[Edited on May 19, 2009 at 8:26 PM. Reason : a]

5/19/2009 8:24:53 PM

well, I could dig that, but wouldn't that require the state to, you know, take it to the SC?

5/19/2009 8:31:12 PM

^which they really wouldn't do, if they hold that position. Which is why I think their argument in favor of their nullification rights is irrelevant in a legal sense.

5/19/2009 8:34:55 PM

And it doesn't have a moral leg to stand on. Majority rule is not tyranny just because your side always loses.

5/19/2009 8:47:12 PM

Fine. You could believe they would be wrong to do that. You can believe that they are morally wrong in every way for declaring sovereignty in that area.

But the question that easily follows is, even if that's the case, is that moral wrong sufficient to justify the feds making their point with guns? If the people are peaceable and pose no threat of overthrowing the government, but merely want to separate - even if you think that's despicable, would you kill them for it? Or would you denounce them, hate them, and let the peaceful (but wrong) people go their own way?

5/19/2009 8:51:14 PM

why would you let peaceful people go? they can't leave with their tax money, damnit!

5/19/2009 8:54:28 PM

Quote :

"and pose no threat of overthrowing the government"

Succession inherently threatens to overthrow the government.

5/19/2009 8:56:30 PM

lol, how does it do that?

Do you freak out when someone you know wants a divorce, because that's an inherent threat to kill the spouse?

5/19/2009 8:58:12 PM

This from SC and the secession talk from TX really puts to shame any whining the Democrats did when they weren't in power through the 90's and 2000s

5/19/2009 9:01:21 PM

The two scenarios aren't analogous.

Better question: would allowing enlisted soldiers to ignore officers' orders be an inherent threat to the military?

5/19/2009 9:02:04 PM

complete difference. Is the order a lawful one?

btw, the word is secession.

5/19/2009 9:42:30 PM

There's nothing unlawful going on today.

Just because it goes against an originalist view of the Constitution doesn't make it illegal. The Supreme Court has ruled on this issue. They define what is legal and what is not.


And

omg typo on the internet

5/19/2009 9:45:52 PM

Quote :

"There's nothing unlawful going on today. Just because it goes against an originalist view of the Constitution doesn't make it illegal. The Supreme Court has ruled on this issue. They define what is legal and what is not."

Haha, fantastic argument. "It's not illegal because we don't follow the part of the Constitution that says it is anymore." You almost sound like Richard Nixon there...

5/19/2009 9:54:35 PM

There's sound constitutional backing for the Supreme Court decsions

The commerce clause, mostly.

5/19/2009 9:56:03 PM

ahhh. So, if we take one part of it, we can invalidate the whole. Really fucking brilliant, dude

btw, does the Commerce clause allow for the suspension of the specifically enumerated purpose of eminent domain?

5/19/2009 9:57:08 PM

It's not a part of it invalidating the whole.

It's an interpretation of a part of it invalidating a minority's interpretation of the whole.


And when were we talking about eminent domain? I guess the answer to your question varies from "no" to "I don't think you know what eminent domain is."

5/19/2009 10:00:37 PM

it's a gross interpretation of a small part of it that has allowed absolute usurping of the rest. There's no two ways about it. Just because the SC says it's "the right interpretation" doesn't make it so. In fact, when a body runs out and says it has powers that it does not, in fact have, then we must question that body in the first place, shouldn't we? Nooooooooo, you'll happily take the amended view, because it gives the gov't more power.

As for destroying eminent domain, Kelo is the case, of course.

5/19/2009 10:04:43 PM

Quote :

"Just because the SC says it's "the right interpretation" doesn't make it so."

Yeah, it really does. Judicial review, yo.

Quote :

"As for destroying eminent domain, Kelo is the case, of course."

I'm going to go with "I don't think you know what eminent domain is," then. That case is an example of eminent domain growing too powerful; not being destroyed.

5/19/2009 10:16:22 PM

i didn't say eminent domain was destroyed. I said its specifically enumerated purpose has been destroyed.

Quote :

"Yeah, it really does. Judicial review, yo."

remind me again where in the Constitution it says the words "Judicial Review..."quote]In fact, when a body runs out and says it has powers that it does not, in fact have, then we must question that body in the first place, shouldn't we?[/quote]

5/19/2009 10:20:53 PM

Quote :

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority....In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Quote :

"As for destroying eminent domain..."

'burro-- I'd love for you to reply to the topic I created about all the newly minted libertarians who previously supported Bush.

[Edited on May 19, 2009 at 10:30 PM. Reason : ]

5/19/2009 10:24:32 PM

I hope more states do this. GG SC

5/19/2009 10:29:39 PM

so, where does it say that the SC can strike down a law? don't quite see that. Where does it say that SC can nullify a part of the Constitution?

5/19/2009 10:30:05 PM

Quote :

"The judicial power shall extend to all cases [...] arising under this Constitution"

I mean, are you really going to take issue with freaking Marbury v/ Madison? Seriously?


As far as nullifying parts of the Constitution-- the Supreme Court can't. Unfortunately for your argument, it hasn't, either.

5/19/2009 10:32:47 PM

Quote :

"Seems to me that this group should do a better job spreading its message and getting people with similar views elected to national gov't than waste time pissing around in state legislatures."

Basically. Or, worst case scenario, encouraging states to challenge laws they perceive as unconstitutional infringements upon the Tenth Amendment in the courts. Unfortunately (and, I believe, wrongly), the courts have not typically been sympathetic.

Moves as brazen as the de facto national drinking age, tied to federal highway funds, have been upheld by the courts. Raich v. Gonzales also comes to mind; while justices like Thomas may be sympathetic to the federalism argument, even other "conservative" justices like Scalia, and in turn, likely Alito and Roberts, are unlikely to curb the authority of the federal government in favor of the states.

5/19/2009 10:38:39 PM

Quote :

"This is why the issue went to war the first time."

Um, no. The issue went to war the first time because the only way to justify a sophist and untenable position is with guns. There is a clause in the Constitution called the Supremacy Clause:

Quote :

"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."

The states signed on to the idea when they ratified the Constitution (or joined the union) that it is the "supreme law of the land."

Now I've argued this point with the sophist secessionist camp a few times on here over the years. Please explain to me how a founding document can be "the Supreme law of the land" if a given state can decide it doesn't like it and just pack up and leave at any minute?

That would be like me murdering someone, and then cutting a deal with the Feds that I'm not punished as long as I leave the country. Clearly the law has no binding force if it isn't enforced on its own principle. That's why it's called, you know, the law.

The secessionists knew very well this fact and they sought to erase it in the new (rebel) government, hence why it was called a confederacy.

Keeping with the theme of "using logic and rational thought" -- clearly 10th amendment concerns don't apply to secession either because the Constitution is the supreme law of the land, and Thing "in the Constitution or Laws of any State" notwithstanding. Obviously including, say, any claim to a power that subordinates the federal Constitution, like secession.

The founders made this issue really simple. Leave it to stubborn southerners to make it difficult.

[Edited on May 20, 2009 at 4:10 AM. Reason : foo]

5/20/2009 4:08:13 AM

Quote :

"The judicial power shall extend to all cases [...] arising under this Constitution"

And where does that say that the SC can nullify a law? It doesn't! Unless you take a broad (read: revisionist) interpretation of the words "judicial power." And, yes, I DO take issue with Marbury-Madison. I'm glad you finally figured that out, since I've already alluded to it at least twice now.

Quote :

"Now I've argued this point with the sophist secessionist camp a few times on here over the years. Please explain to me how a founding document can be "the Supreme law of the land" if a given state can decide it doesn't like it and just pack up and leave at any minute?"

Because the notion is that they can, in fact, follow all the laws and policies or leave. It is the supreme law of the land, as long as the state agrees to be, you know, part of the land.

Quote :

"That would be like me murdering someone, and then cutting a deal with the Feds that I'm not punished as long as I leave the country."

That's a strawman. There is a massive difference between a state and a person, for one. Plus, no one is talking about allowing a breaking of the law. Rather, it's a matter of a state saying "we don't like your policies, you don't effectively represent us, we wanna get out." Ultimately, the state would be subject to those laws until they decided to leave, including paying fines and having tax money withheld (which is how it would go down), which is a far cry different from your silly "murderer" scenario.

5/20/2009 7:08:43 AM

Quote :

"Because the notion is that they can, in fact, follow all the laws and policies or leave. It is the supreme law of the land, as long as the state agrees to be, you know, part of the land."

In this sense, I view the constitution as a treaty between states to allow for common governance on certain things. As part of that treaty, you agree to submit to that common government on the matters stated in that treaty.

If the common government oversteps its bounds, it is violating the treaty, then the members (states) are not obligated to accept it. Ultimately, if the treaty no longer serves the state's interest, they simply repudiate the treaty peacefully. It's the difference between being a nation and a union.

[Edited on May 20, 2009 at 8:29 AM. Reason : a]

5/20/2009 8:29:27 AM

Quote :

"And, yes, I DO take issue with Marbury-Madison."

You don't think there should be a check against legislatures enacting unconstitutional laws? And the notion that it is a revisionist interpretation is a suspect one, since the concept was used rather explicitly during the push for ratification.

Paragraph 11:
http://www.constitution.org/fed/federa78.htm

5/20/2009 9:11:33 AM

Ok, I'll admit I didn't read all this thread, and am thus subject to flaming with my comment, so here I go.

I know the federal government can withhold federal money for a state and basically make the states their bitches. Can't a state get creative back? What if the state just told everyone within its borders "hey, don't pay income taxes this year, it's actually unconstitutional"? And even if it didn't do that, there's gotta be some way for the state to cut off money flows to the federal government. And even if they couldn't balance it out, if some state was uppity enough they could say "hey, screw your federal money, we'll make it up by serving alcohol to 18 year-olds". I mean, as far as I understand it, they could legally do that last part.

Really, what if a state really somehow figured it out and completely stuck it to the federal government? Admit it, in that case the US congress would get scared shitless. I realize, at that point they'd just pass some more unconstitutional legislation saying "thou shalt not oppose us!" But that's where... people power comes in... hopefully.

ok, flame away.

[Edited on May 20, 2009 at 11:41 AM. Reason : wow, that was kind of freshman level]

5/20/2009 11:37:52 AM

Quote :

"Unless you take a broad (read: revisionist) interpretation of the words "judicial power.""

This is the first time I've ever heard someone call John Marshall a revisionist.


You're not even thinking this through. Without judicial review, what would check the other two branches

5/20/2009 6:20:23 PM

Quote :

"You don't think there should be a check against legislatures enacting unconstitutional laws?"

That check exists. The SC hears a case and says "this verdict is nullified," not the law itself. Your referenced source might say that the SC should be able to declare a law null and void, but such a statement does not exist in the Constitution. This is but one source from the time, and we must remember that many people participated in the writing of the Constitution. Thus, if such an obvious power of the judiciary were supposed to exist, why wasn't it written in explicitly? The answer is obvious: it wasn't supposed to be a power.

Quote :

"Without judicial review, what would check the other two branches"

Simple: the ability to rule on the effects of a law on a case-by-case basis. Does this make it painfully difficult for all agencies harmed by the same unjust law to achieve justice? Yes. But, it also removes the impetus for lower gov't agencies to act upon the unjust law, as they know that the ultimate effect will be their loss.
It also allows interpretation of the law based on what was written, a power the legislature and executive do not have. I'll admit that this argument is not one that I haven't considered before, for I most certainly have. However, the obvious problem that the founders must have wanted to avoid is that of the judiciary declaring valid laws null and void. They wanted the judiciary to be the weakest of the three, as is even attested by the previously referenced paper.

5/20/2009 7:25:30 PM

Quote :

"the ability to rule on the effects of a law on a case-by-case basis"

That's ridiculous. How exactly would one cease the effects of the law without voiding the law?

5/20/2009 8:05:08 PM

For what it is worth, the 20th of May is the day that NC seceded back in 1861.

[Edited on May 20, 2009 at 8:51 PM. Reason : not that it is relevant]

5/20/2009 8:50:49 PM

^^ simple. They make it so that someone can get justice done. What agency is going to continue enforcing a law or policy if they know the SC will just throw the case out? none.

5/20/2009 9:25:35 PM

So on a practical basis, your ideal is identical to judicial review. Except for the crushing inefficiency of your plan.

On a constitutional basis, I fail to see how your view passes muster but judicial review doesn't. The difference between the two are semantics.



Oh wait, semantics... and a 200 year old undisputed supreme court ruling.

5/20/2009 9:33:18 PM

Quote :

"So on a practical basis, your ideal is identical to judicial review. Except for the crushing inefficiency of your plan."

I want the crushing inefficiency so as to act as a limit on the judiciary. That's one of the benefits, actually.

Quote :

"On a constitutional basis, I fail to see how your view passes muster but judicial review doesn't. The difference between the two are semantics."

It's really simple: one follows from the Constitution, the other doesn't. One is allowed by the Constitution, the other isn't.

Quote :

"Oh wait, semantics... and a 200 year old undisputed supreme court ruling."

Yes, an unConstitutional ruling.

5/20/2009 9:35:47 PM

Quote :

"It's really simple: one follows from the Constitution, the other doesn't. One is allowed by the Constitution, the other isn't."

Elaborate

5/20/2009 9:38:08 PM

the Constitution says the SC can rule on a court case. It doesn't say it can nullify a law. pretty simple stuff.

5/20/2009 9:53:59 PM

Then you agree that it can rule that a law is unconstitutional.

How is that different from nullifying a law?


This is semantics.

5/20/2009 10:20:56 PM