What war?

POSTED BY: kaneman
UPDATED: Tuesday, October 9, 2007 18:06
VIEWED: 5092
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HERO

Monday, October 8, 2007 6:04 PM

Quote:
Originally posted by Fletch2:
Actually Hero, wouldn't the Feds just declare that such a state no longer pursued a republican form of government? In that case they have the right to invade to change it dont they?

No. As long as the state was duly enacting laws pursuant to its elected officers and following procedure...it'd be ok. Plus the Feds tend to avoid squabbles like this.

I note for the record that for a time Rhode Island had two governments. This led to Luther v. Borden (1849) which said that the Guarantee Clause was a political question and thus enforcible by the President and Congress...but NOT by the Courts. Since then the issue has been revisited, especially on issues of legislative districting...but on 14th Amendment grounds.

H

LEADB

Monday, October 8, 2007 6:41 PM

Hero,
Thanks for you insights on this matter; have to ponder a day or two on this before replying further; just wanted to thank you for the information for the time being.

FREMDFIRMA

Tuesday, October 9, 2007 9:52 AM

You know he's shovelling a load though, right ?

"eliminating the whole trial by jury thing"

Nope, Constitution, supreme law of the land, above and beyond the state, and within it's jurisdiction, utterly guarantees it within the Fourth Amendment - so that's just FUD.

"eliminating the right of certain folk to vote in state elections (like women or blacks...)."

Nope, Amendments Fifteen and Nineteen handle this, more FUD.

"but their right to appeal to the Fed Govt is gone in your world."

Nope, Amendment One, last line.

Folks like Hero would have you believe that all would fall apart if the FedGov relaxed it's stranglehold on us from cradle to grave, even for an eyeblink, but that is not at all true.

It's the self same logic used to stick us with the Patriot Act, and related abuses and usurpations, the rules get in their way, you see, and thus they play this Fear card, every time - and notice how the will of the people never once enters the picture in Heros little world cause it doesn't count with him - could you really see those things being ALLOWED by the populace of a state without violent resistance ?

And lets us talk about those pesky "Rights" Hero seems to hate so very much.

Fire up the wayback machine a bit and...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

That's right, unalienable - present when born, present till death, irrevocable by earthly enterprise of any kind save as an act of Tyranny.

"among these" as in, there's more but we didn't have room for them.

Now, these folk, many of em, later framed the US Constitution - are you with me ?

They chose to specify and enumerate some of those unalienable, irrevocable rights because certain Anti-Federalists pointed out that the FedGov would eventually seek to deny them, and a compromise gesture was reached where the most important of them WERE enumerated and articulated in the new Constitution.

But they hedged their bets in a vain and futile attempt to prevent the FedGov from denying anything not specifically listed, with Amendment Nine.

"The enumeration in the Constitution, of certain rights, shall not be construed
to deny or disparage others retained by the people."

Which, I think it fair to say was prettymuch immediately and consistently violated since day one.

And don't let yourself be snookered with that vague "Due Process" charade either.
What it SAYS is thus.

"nor be deprived of life, liberty, or property, without due process of law.."

That means, if tried and convicted, they can hang you, they can imprison you, or they can fine you and/or impound your property - but they CAN NOT REVOKE YOUR RIGHTS.

Those are absolute, unalienable, irrevocable, whatever word you wish to use, they are not given to you as a gift from the FedGov, nor can they be at any time revoked by such, there's no provision for it whatsoever in the Constitution, and for very good reason.

That's one reason Hero and I have different views on what a "Convicted Felon" once released at the completion of his sentence, should be allowed to do - let's leave aside the fact that we've created so MANY laws that no one can even understand, much less enforce, all of them, and also that many "Felonies" are petty things that would not and should not, even be criminal....

But the meat of the matter, a person, a citizen, serves out their time, and is released.
At that point they're done - the FedGov has no business, nor authority, to revoke those unalienable rights, to remove their right to vote, to bear arms, not a whit they don't.

And yet they do, the very worst act of Tyranny that can possibly happen under said document, happens every single day in an entire system built upon it's violation, and when you understand that, you understand why I don't care for folks who are part of that.

Constitutional Compliance is

LEADB

Tuesday, October 9, 2007 11:55 AM

Frem,
Since you ask; I was careful to ask Hero a particular question, and was this:
What would it take to amend the constitution so that folks such as himself would find themselves bound to more tightly adhere to what a 'lay person' might expect "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" to mean. This is nothing more than a recognition that there's a ship in motion with a huge momentum. This is not a ship that can be turned on a dime; and it is not one that will be turned by subtle action (unless one is willing to wait a century or so).
There's at least two ways to turn the ship; and both can be used. One is working inside the system; recognizing the powers that are in place and how they work. The other is working outside the 'system', and in this case I define by getting folks to recognize that things are not as we might wish them to be and to start pushing where they can.
So I ask Hero what he thinks it would take to turn the ship 'within the system'. I'm willing for the moment to assume he's sincere in his analysis, and that the 'system' interprets the constitution as he indicates. There's two ways to work this, at least; one is to attack the interpretations, but means getting court precedents overturned with targeted. The other is the amendments; which will require a whole new set of precedent to be established.
Of course, the another solution is purely political; simply because the constitution is interpreted to 'permit' a thing, doesn't mean congress must 'do' the thing.
Like the FDA, we can always go to congress and get them to make it 'more states rights' oriented as has been suggested here and there. But obviously, getting congress to move is challenging; and that leaves nothing in place to prevent them from putting it back.
In any case, I find Hero's perspective interesting, and may well typify some of the power struggles to be faced in trying to reign in the powers of the fedgov.
I suspect it may suffice to simply reign in the elastic clause to significantly change the 'system' as I envision; but I'm not sure how to do that without having to enumerate everything. I believe Hero's point was that some of the constitutional statements which provide some of the freedoms you mention -also- permit the fedgov to get it's sticky fingers deeper into the state's processes. I don't disagree with that; I'm just not sure that the area where I want to reign in the fedgov would require those sections to be amended.

And I'll probably comment more later; all I have time to address this morn.

HERO

Tuesday, October 9, 2007 2:17 PM

Quote:
Originally posted by Fremdfirma:
And don't let yourself be snookered with that vague "Due Process" charade either.
What it SAYS is thus.

"nor be deprived of life, liberty, or property, without due process of law.."

That means, if tried and convicted, they can hang you, they can imprison you, or they can fine you and/or impound your property - but they CAN NOT REVOKE YOUR RIGHTS.

Those are absolute, unalienable, irrevocable, whatever word you wish to use, they are not given to you as a gift from the FedGov, nor can they be at any time revoked by such, there's no provision for it whatsoever in the Constitution, and for very good reason.

You can't shout "fire" in a crowded theater. Once that idea came about then it was recognized that there are reasonable limits to speech and if there are reasonable limits to speech then there are reasonable limits to every other right in the Bill of Rights. What's reasonable...thats a question determined by Due Process.

Without the Equal Protection and Due Process Clause the rights in the Federal Constitution apply only to the Federal Govt. Thus the right to vote, would be the right to vote in Federal Elections...states could and have tried to limit state voting rights.

Then came the Voting Rights Act and Civil Rights Acts and some others...all of which would have been unconstitutional without the 14th Amendment to make them applicable to the States.

Again, your arguing the way you think it should be by throwing out unsupported statements that lack legal reasoning. I on the other hand continue to explain how it is and the reasoning behind it. Its perfectly acceptable to be against the present interpretation. But you have to be able to argue it in detail, not simply paint with broad strokes.

For example, segregation is wrong. It was, however, the reasoned law of the land. It was not overturned by a broad statement condeming its wrongness but rather by reasoned argument backed up by careful analysis of the argument against AND the argument for it.

Abortion is the same way. I'm pro life and I've been arguing that Roe v. Wade is a pro life decision, but folk are so caught up in the abortion right and wrong argument that they never looked at the ruling. It establishes the notion that the State's interest begins at viability. If that's true then scientific development means that Roe must be periodically examined to push viability back towards conception. Eventually the two meet and Roe outlaws abortion. Reasoned analysis, however, is something many people lack the patience for.

H

FREMDFIRMA

Tuesday, October 9, 2007 2:41 PM

Umm.. Leadb ?

I notice a little flaw in that concept - the idea that you are asking a direct beneficiary of those abuses of power, how to end them... a man who, by his own repeated comments on these very boards, revels in the power over others that the system gives him with that handily pre-stacked deck to play from.

That'd be like asking a crack dealer how to stem the flow of drugs, or asking an Anarchist to help you figure out ways to drum up support for the Patriot Act, once they get done looking at you like you've lost your mind, and the wheels start turning in their heads, are you really sure you wanna put any particular trust in the answers you'd get at that point ?

I myself don't think it's possible to change it within the system because the system works only in one direction, and furthering abuse of court re-interpretation in order to end that re-interpretation just doesn't seem like a sound plan, it strikes me much like bending a piece of metal back and forth rapidly... it heats up, and then snaps in half.

As the man said "For tomorrow shall never come to that purpose."

First, you'd have to get politicians to admit to being wrong, then you would have to get them to hand back excesses of power, and IF by some fortunate stroke of divinity, you get those two outright miracles to occur, THEN you would still need the unified support of the Executive AND Legislative branches, along with the will of the people, to start forcing the Judicial branch to go back and strike out even the more obvious abuses.

I just cannot see that happening - your better bet is to strike at the roots of unconstitutional programs and agencies, the budget.

And aim that axe right for the worst offenders right up front.. FEMA, ever so useful in new orleans... CHOP!.... Dept Of Homeland Sec, so deluged in dragnet data and false positives that they wind up both wholly ineffective AND harrass the public at large... CHOP!
The BATFE, an agency built around rights-denial, not to mention needless duplication, CHOP!
Outright payments to foreign militaries... CHOP!

Wow look, there goes the budget crisis too.

Stuff like the FDA should be converted over time to state functions with the FedGov acting only in a supervisory/advisory role to help coordinate data sharing between state agencies, a process that could eventually be fully automated in time.

In extremis, one possible thought is for State Governors to demand a line-item detailed bill for what the FedGov wants the money for, and have them start refusing payment for services that are unconstitutional, duplication of effort and counterproductive - it would send a clear message, if naught else, but yes there's the risk of Federal jackbootery, which would probably speed the process if they were stupid enough to do something like that instead of leaving it in the realm of politics... but remember, you're dealing with folks who throw the rulebook out the window as not applicable to them when those rules start getting in THEIR way, folks who have this strange concept that they're the lords and we're the peons.

Of course, the French had a solution to THAT problem, they called it the guillotine, but I don't think we needs be going that far.... yet.

-Frem

It cannot be said enough, those who do not learn from history, are doomed to endlessly repeat it

FREMDFIRMA

Tuesday, October 9, 2007 2:43 PM

You find me one single occurance of "unalienable" being expressly defined as "reasonably limited", then.

One.

Anywhere.

-F

FLETCH2

Tuesday, October 9, 2007 2:53 PM

Quote:
Originally posted by Fremdfirma:
You find me one single occurance of "unalienable" being expressly defined as "reasonably limited", then.

One.

Anywhere.

-F

As far as I remember the word means cannot be removed or transfered, it doesn't say anything about limited. You are supposed to keep these things through eternal vigilance you know? You stop paying attention to them and they fade away.

HERO

Tuesday, October 9, 2007 5:48 PM

Quote:
Originally posted by leadb:
There's at least two ways to turn the ship; and both can be used. One is working inside the system; recognizing the powers that are in place and how they work. The other is working outside the 'system', and in this case I define by getting folks to recognize that things are not as we might wish them to be and to start pushing where they can.

Ways to turn the ship:

1. Rebellion, but thats a dangerous prospect, since rebellions can tend to get a bit out of control.

2. Civil War. While there was no Constitutional provisions for things like the forced partition of West Virginia, the seizing of southern property without compensation, the whole succession question, the military occupation of whole states, etc...just the doing of it created a measure of legitmacy that can be argued in court. I note for the record that some abuses, particularly involving property and constitutional rights were addressed by the Supreme Court in post-war decisions.

3. Five Supreme Court Justices. The ultimate authority of what's Constitutional is what the Supreme Court says is or isn't. That's the de facto truth of how the system works. If you can get five justices to agree, then you can do ANYTHING. Roosevelt knew this and planned to pack the Court to get the New Deal passed by adding three new Justices for a total of 13, but the Court, split 5-4 against the New Deal had a change of heart becoming 5-4 in favor, hence the "Switch in Time that Saved Nine". I note for the record you could achieve partial success with as few as two.

4. A Constitutional Amendment. This can be done in the specified manners. Acts of Congress, a certain number of states...you could even call a convention. I mean a real convention with duly recognized representatives of the legitimate state governments...not so and so from the 'Lets Have a Convention with All the Other Crazy Talkers Association of America'.

5. An iceberg. Turn or don't turn, either way things are going to get bumpy.

6. You could declare your independence with the support of Congress and your local State. Its a long shot, but write your Congressman. I for one would be glad to give PirateNews the boot...if for no other reason then to invade him for his oil.

7. Get your party a majority in Congress. Here is a place to look at history and the Republican Party as a great example. The party started up around 1850 and with eight years it had control of Congress and in 1861 took the Presidency all on virtually a single issue.

H

HERO

Tuesday, October 9, 2007 6:06 PM

Quote:
Originally posted by Fremdfirma:
You find me one single occurance of "unalienable" being expressly defined as "reasonably limited", then.

One.

Anywhere.

I note for the record that the term "unalienable" is not found in the Constitution. Its in the Declaration of Independence. That document is not law, but is recognized by the Courts for its historical value.

But since you asked, here's one: Budd v. People of the State of New York (1892):
"Men are endowed by their Creator with certain unalienable rights,-'life, liberty, and the pursuit of happiness;' and to 'secure,' not grant or create, these rights, governments are instituted. That property which a man has honestly acquired he retains full control of, subject to these limitations: First, that he shall not use it to his neighbor's injury, and that does not mean that he must use it for his neighbor's benefit; second, that if the devotes it to a public use, he gives to the public a right to control that use; and third, that whenever the public needs require, the public may take it upon payment of due compensation."

You have free speech, yelling "fire" in a crowded theater can be an expression of that speech, but it creates such a danger that the govt. can limit your right to do so. You still have the right to yell "fire", its merely a reasonable restriction on time, place, and manner for legitimate public purpose (to prevent harm and preserve order from undue panic), and its a rule narrowly tailored to serve that end.

You also need a permit to march on City streets. You can march, you can hold your Klan rally or million crazy-talker march, but the permit allows for the orderly flow of commerce and traffic without undue disruption.

If you find someone saying you can't yell "fire" call me and I'll represent you. I love the Constitution. But you don't have the right to make another person listen, to interfere with their business, or to cause public disorder or risk of harm.

H

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