UncleJak's thought provoking question of the day

[UncleJak]

This is a debate I often find interesting....

Does the supreme court have the right to make unconstitutional a state approved law? What if the law was approved by voter referendum?

Bonus question: How did the above question impact the American civil war?

My answer: State rights, especially when voted on by the people, cannot be overridden by ANY governing body. We must elect leaders who appoint judges that remember that the customer is always right. As far as the civil war: I am torn between two sides, but in the end if a state ratifies something (even leaving the union, which is a VERY big move) it must be allowed. Something as big as that, to me, requires a vote by the people. During the time leading up to the civil war, states desired to govern themselves as the constitution had intended. Federal governmant should be used for military, interstate roads, and other like things.

I hope my question invokes deep thought and inspires others to take a look at our current situation. God bless America

[Jonnin]

1) absolutely. If a state makes a law that violates the US constitution (ratified by the states and agreed upon by them), the SCOTUS should say so and invalidate that law. THAT is their job, actually, the other cases they see are often NOT their job or at best tangential to it. Pick anything in the bill of rights for example, and imagine a state making a law that is 100% the opposite of it (no guns by no one period, or only white men with a job can vote, or the governer is now in charge of all news outlets.... etc) --- time for the SOCUTS to earn its keep.

2) The civil war was, politically, a war about state's rights vs federal rights. However it is not related to the above directly: the slavery laws in question were not in violation of the US constitution directly (they are now, but were not at that time!). It was a slow breakdown of the system, where compromise was tried and failed, eventually leading to the attempted peaceful "we do not want to be a part of you anymore" southern secession. The war was fought to FORCE the south to remain a part of the country, really. And it pretty much settled that issue: states do NOT have the right to declare independence from the USA via simply stating that openly. Here again it only touches the issue from #1. The us constitution does not directly provide a process for a state to leave the union, nor a process for a new one to be created. They winged it on those issues, and as each side had its own opinion and nothing was in writing, war became the way to solve it.

Edit:

It is still unclear, and not written down, as to whether a state could leave the union under any circumstances, and whether the union has any rights to try to prevent this. If it were to happen today, it would not be resolved by war, though. Today, government would just cut off the money and infrastructure, wall off the offending state, and leave that state all alone until it came crawling back. A state today, with no army or military equipment of consequence would be fair game for every sorry little dictator out there "offering" to "garrison" the new "country" with "peacekeeping forces" --- of course that would just be a way to get their army closer to the USA proper, which would lead to another cuban crisis type event.....

Edited June 15, 2012 by Jonnin

[Guest bkelm18]

Yes if a state enacts a law, even if by voter referendum, and it goes against the constitution, the SCOTUS should invalidate it. The constitution is the law of the land. If states are allowed to go against it, it makes the whole thing meaningless.

[Oh Shoot]

... What if the law was approved by voter referendum?...

The majority opinion does not necessarily prevail on any political level in the USA, simple as that.

- OS

Edited June 15, 2012 by OhShoot

[Dennis1209]

May I chime in on this one?

Slavery was thrown into the mix by President Lincoln to get more support for the war, and not a cause of it. While states rights and northern aggression were major issues that divided this nation, if I could pick only one word that best describes the trigger, then and NOW, it would be this.

tyranny

tyr·an·y

One of the first acts the president declared was the suspension of habeas corpus and trial, mainly for opponents of his policies. Then involuntary servitude for the union army was initiated (the draft) unless one could legally buy his $250.00 way out.

As you all know, the constitution limits the federal governments responsibilities and clearly defines its powers. If the powers are not granted to the federal government, it's states rights... Look at where we are today!

Edited June 15, 2012 by Dennis1209

[Guest PapaB]

The majority opinion does not necessarily prevail on any political level in the USA, simple as that.

- OS

+1. This is why we are a republic, not a democracy.

[seez52]

We always hear about the checks and balances built into our fed. gov. Legislative, executive judicial and how they are to work together to keep our rights protected. One area we never hear about is the check of state sovereignty and states rights. The constitution is simply a piece of paper with laws written on it. How are those laws to be enforced and by what authority? Are we to depend on the scotus to do this? Is the scotus even eligible to preside over.... themselves? In cases where the power of the feds goes beyond the limited and specific parameters set forth in the constitution, is someone with a vested interest really a fair arbitrator? Would the fox be a worthy council for rules governing the hen house?

Certainly Thomas Jefferson and James Madison thought otherwise when they drafted the KY resolve in 1798 laying out specific remedies for states who were experiencing an overreaching fed. govt. Indeed, these founding fathers maintained that the power of federal gov. was to be placed in check by the sovereign states, pointing out that it is not possible for the fed. govt. to be its own judge when it comes to how much power it can wield. The state's job is to interpose itself between the citizens and the federal govt. to protect our rights as citizens of the states. The states have the right, ability, and duty to not only interpose themselves between the citizens and the feds. but to also nullify federal laws which overreach the limited and specific duties of the feds. It is also one of the reasons senators were to be appointed by the state legislatures rather than popularly elected as were members the house. This was in order for the people to be represented in the house, AND for the states to be represented by the senate. Unfortunately a meddling political class changed that by allowing the 17th amendment in 1913-- a dark chapter for our republic.

Edited June 16, 2012 by seez52

[Guest Lester Weevils]

It is a good question what would happen if a state were to secede nowadays. It is difficult to imagine that there would be a shooting war over it nowadays. Obviously I wasn't alive in 1858 and am not much of a scholar. Maybe it was difficult to imagine having a war over it back then too? Dunno.

Maybe Wyoming secedes, saying "The nuclear missiles are now property of the Sovereign State of Wyoming." Dunno how many foreign powers will be pushing Wyoming around.

Maybe Delaware secedes and passes banking laws making em an even better place to hide money than Switzerland or the Caymans? They would become so rich, why would they need to crawl back?

Dunno nothin. Just thinking out loud.

[seez52]

If the states are indeed the final check of the over reaching power of the federal govt. then what final remedy do these sovereign states have other than the ability to secede?

Prior to the civil war a number of states threatened to secede over federal govt. encroachment of over reaching power. The feds backed down.

I believe today the sovereign states still retain the power to protect the citizens and limit the federal govt. as originally intended by the founders and demonstrated by the actions of Jefferson and Madison in 1798. Unfortunately, its been so long since we exercised this function of our government it has become stiff and full of arthritis. Mr. Lincoln set the erroneous example that it could not be done, but he did not change anything to keep it from occurring again.

Lincoln: "If the South goes, how do we pay for the Government?"

Jefferson Davis: "All we wish is to go in peace."

[Guest PapaB]

At one time, Senators were chosen by the legislators of the State they were to represent. When we changed the Constitution to select them by popular vote, we started eroding States rights. The Founding Fathers meant for the House to represent the interests of the people while the Senate represented the interests of the States. Voters have managed to change it to where they now elect the House and Senate. They also re-elect them so much that members of the House and Senate now only represent themselves and their own special interests.

So, how's that working for us?

Edited June 22, 2012 by PapaB

[seez52]

Bullseye, PapaB.

We need to do some sort of a re-boot so we can get back to the original structure of the Constitution.

[DaveTN]

We need to do some sort of a re-boot so we can get back to the original structure of the Constitution.

We live in a Republic; not a democracy. We are ruled by law, not majority rule. Would we want majority rule? Well…. I for one wouldn’t want to put the right to bear arms up for a vote; it would be soundly defeated.

Our founding Fathers started with a blank page and developed the form of government and the law of the land (The United Sates Constitution) to fit the situations and lifestyles they had at the time.

They at no time thought they were all knowing of what the future would bring and they put in place the ability to interpret and change both the laws and the Constitution.

Groups of people battle over the bill of rights. On gun forums it’s usually the 2^nd & the 4^th amendments.

Did the founding fathers intend for anyone to be able to strap on a gun anywhere they wanted? Obviously not, or the 2^nd amendment would simply read “The right of the people to keep and bear Arms, shall not be infringed.â€

They started the 2^nd with the words “A well regulated Militia, being necessary to the security of a Free State,†They did that because at the time laws were enforced by elected Officials and local militias.

Were they men who expected local law enforcement to need a warrant if they saw a suspicious criminal walking down the street? Of course they weren’t; they were hard on criminals. They used the word “unreasonableâ€. People were protected from unreasonable searches. Who decided if the search was reasonable? The local courts.

They would be ashamed that we have put the rights of criminals over the security of our nation, and then tried to justify it with quotes from them.

We don’t need a new government. We need to rebuild our nation. We need politicians that will stand up and say what they believe; not what they know the voters want to hear. We need Americans to be the Patriots that were common in the past.

Can we do that? I don’t think so.

[Oh Shoot]

....

We don’t need a new government. We need to rebuild our nation. We need politicians that will stand up and say what they believe; not what they know the voters want to hear. We need Americans to be the Patriots that were common in the past.

Can we do that? I don’t think so.

Me either.

Politicians and presidents routinely operate so far beyond the Constitution that it has become only a document to bandy for political advantage with the 50% of those who even vote.

The citizenry has passed the tipping point of being ransomed with its own money, and worse, half or so has little or no skin in the Republic at all -- and the concepts of personal liberty and individual responsibility are now espoused only by an antiquated minority.

This is the only reason this coming election could even be close, after BHO's absolutely stunning record ranging from incompetence to outright criminality. And it's sad that had not most everyone's individual wallet been diminished, the GOP wouldn't even be in the running.

- OS