So Ewan 325 and I were talking about the constitutionality of various practices and actions of both the congress and the president.
To be clear at this point I'm not looking for "Well democrats/liberals/whatever do this and republicans/conservatives/whatever do that!"
This is to be a discussion thread on actions or practices of the bodies of government and if said action is or should be legal according to:
1. The Constitution
2. Our "lesser" laws
and in line with our treaties with any other country involved with the action taken.
So if you want to post here this is my suggestion for how to go about it:
First state the action or practice you wish to discuss.
Second state why you think the action or practice violates our laws or the constitution.
Finally if you can point out any salient points that might be used to prove why it doesn't violate the law -- this isn't to disprove yourself but to help everyone have a place to start on both sides.
Are you talking about the U.S. action in Libya?
It falls under the "War Powers Resolution of 1973," the constitutionality of which has been debated ever since 1973, and which hasn't been conclusively established one way or the other.
Congress has only declared 5 wars in the history of the U.S. Congress has not declared war since World War II.
I can see the utility of a war powers act, and I can see the potential for abuse. I reckon it's up to the Supreme Court to determine the constitutionality of it.
Spanky T. Leprechaun,
(not) a lawyer
Well I meant any action but sure the U.S. military action in Libya does apply.
No problem, it's all talk. I might get words mixed up but the idea is to listen and talk not yell as that accomplishes nothing.
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Libya I've left my response in the other thread -- the president has predetermined powers granted to him by congress to use our troops at our allies beset in specific ways. He doesn't have complete or total control of this use, however without the ability to do just this we couldn't enter into any protection treaties with anyone -- since the president couldn't operate the military for them without permission from congress first.
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The drug trade does cross national and state borders -- on a distressingly frequent basis -- consider the sale of Oxycontin in Florida where people travel to 'pain clinics' for proscriptions to sell in Kentucky.
that is interstate trade -- no matter how you would try to spin it, as well as the drugs flowing from South America into the USA are international trade.
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To bring up a current issue of my own:
Several states are considering trying to print their own money (will mint would be a more proper term) which they legally cannot do:
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Also I found something that makes me question state national guards:
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Seems to me that would prevent a state from actually keeping a military force together in any way (or the vehicles used in a war) during a time of peace.
I would also note that several states have treaties/agreements/compacts with cities from other countries -- I'll note that the town I currently live in has a "sister city" compact with a city in Japan.
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It is interesting to note that the president can force Congress to convene whenever he wants as well.
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About national guards
There is also in the second amendment a portion detailing that a free state will not have its right to bear arms infringed upon. That ambiguous wording is what allows the states to regulate their own armed forces, and the supreme court just ruled on this...
Edit: wrong link, gotta go back and find it now
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Forget it, I'll just go with the body of the constitution instead. :P
About national guardsThere is also in the second amendment a portion detailing that a free state will not have its right to bear arms infringed upon. That ambiguous wording is what allows the states to regulate their own armed forces, and the supreme court just ruled on this...
Edit: wrong link, gotta go back and find it now
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;Forget it, I'll just go with the body of the constitution instead. :P
Interesting -- I thought that the second amendment applied to the people's right to bear arms to protect their state, not the state's right to regulate/train/organize those people, as the duty to apportion resources for the training and maintenance of militia and troops is given to Congress.
I would note that the states have to bow to Congress on this one though -- since it states they may do so according to the discipline prescribed by Congress.
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This sort of stuff is the main reason I wanted this thread -- it's like a Rules forum for the Governance of the USA instead of Pathfinder.
There are so many interesting little snips and bits tucked in to so many places that it helps to have others help find and place stuff.
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Here's a simple rundown of my position on the legality of our involvment in the war in Libya:
I reject the argument that the UN Charter can supersede or circumvent Congressional war powers. The crucial words in the Supremacy Clause as regards treaties are 'made in pursuance thereof.' A treaty or part of a treaty that flatly contradicts the Constitution is not part of the supreme law of the land. Since according to the Constitution only Congress has the power to declare war, it does not stand to reason that a reading of the UN Charter treaty which would take away or override that power can be a valid reading. The UN certainly may request that we go to war, at which point the President must go to Congress and ask for the war. He should explain his reasons. A free debate may occur. Then they vote. If we decide not to go to war, and the UN feels that we have not fulfilled our treaty obligations, they may boot us. They cannot compel us to fight in their name.
As for other actions of dubious (at best) constitutionality, I would point to certain parts of the so-called 'war on Drugs.' Contrast it with Prohibition. There are similarities- but also a crucial legal difference.
I see nothing in the Constitution that allows the federal government to regulate what private citizens may inhale or ingest. The feds do have a legitimate power to regulate international and interstate commerce, That clearly doesn't apply to commerce that doesn't cross state or national borders. According to the 10th Amendment ('the whole theory of our Constitution' as Jefferson put it)any powers not delegated to the United States (meaning the federal government) are reserved to the states or to the people. Where is the broad power to regulate drugs? I don't see it anyplace.
Prohibition required an amendment, the 18th! It was very plain to lawmakers in 1919 that no 'drug' power existed, so the only way to legally prohibit alcohol was to grant the federal gov't such a power by amending the constitution. Prohibition was also ended by an...
Article II, Section 2 of the Constitution gives the president the power to wage war or send troops into battle. This has been typically used to justify conducting war without a formal congressional declaration. However, it was the framers original intent to give the sole power to declare war to congress which is why it is explicitly stated in Article I, Section 8. However, congress passed the War Powers Act which gives the President 90 days after troops have been sent into battle in order to obtain a formal declaration of war. While this seems like a compromise, the truth is that if a declaration of War is never obtained, the burden lies with congress to use the one tool it has at its disposal to stop the war, which is its ability to cut off funding. Unfortunately, that can be political suicide, and it would be easy for the opposition to use those phrases we see all to often such as that they "don't support the troops" and whatnot. Voting for or against a declaration of war can have vast consequences, which is probably why congress hasn't manned up to formally declare war since WW2. Because of that, the President has a relatively unlimited capacity to declare and wage war. Putting that much power into one person's hands was not the founders original intent, which is why that power was supposed to be used by a deliberative body so that these decisions could not be entered into lightly.
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About national guardsThere is also in the second amendment a portion detailing that a free state will not have its right to bear arms infringed upon. That ambiguous wording is what allows the states to regulate their own armed forces, and the supreme court just ruled on this...
Edit: wrong link, gotta go back and find it now
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;Forget it, I'll just go with the body of the constitution instead. :PInteresting -- I thought that the second amendment applied to the people's right to bear arms to protect their state, not the state's right to regulate/train/organize those people, as the duty to apportion resources for the training and maintenance of militia and troops is given to Congress.
I would note that the states have to bow to Congress on this one though -- since it states they may do so according to the discipline prescribed by Congress.
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This sort of stuff is the main reason I wanted this thread -- it's like a Rules forum for the Governance of the USA instead of Pathfinder.
There are so many interesting little snips and bits tucked in to so many places that it helps to have others help find and place stuff.
Bingo. That document is chock full of loopholes and end-arounds already. It's fluid nature, IMO, is actually meant to fill in those holes and and expand to create new ones... of course I don't claim to be a constitutional scholar by any means.
Parts of the bill of rights sound like they are actually there to clarify portions of the main constitutional document. The second amendment is to allow anyone who can be appropriated into a militia to be able to join said militia. There are parts of the main document that spell out exactly what kinds of firearms can and should be owned by people, but those can be hardly used today considering the nature of weaponry advances.
About national guardsThere is also in the second amendment a portion detailing that a free state will not have its right to bear arms infringed upon. That ambiguous wording is what allows the states to regulate their own armed forces, and the supreme court just ruled on this...
Edit: wrong link, gotta go back and find it now
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;Forget it, I'll just go with the body of the constitution instead. :PThe 2nd amendment actually protects the right of the People- meaning an individual right- to keep and bear arms. It provides an explanatory clause, which asserts that a well-regulated militia is necessary to the security of a free state. Membership in any particular organization is never required to keep and bear arms.
The ScotUS has ruled that an individual right is protected by the 2nd ammendment. You are free to disagree with them and me, of course.
The 2nd Amendment is very ambiguously worded, and could easily be interpreted 2 different ways, however the current interpretation is that it allows all citizens to bear arms.
And here is the wording:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
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About national guardsThere is also in the second amendment a portion detailing that a free state will not have its right to bear arms infringed upon. That ambiguous wording is what allows the states to regulate their own armed forces, and the supreme court just ruled on this...
Edit: wrong link, gotta go back and find it now
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;Forget it, I'll just go with the body of the constitution instead. :PThe 2nd amendment actually protects the right of the People- meaning an individual right- to keep and bear arms. It provides an explanatory clause, which asserts that a well-regulated militia is necessary to the security of a free state. Membership in any particular organization is never required to keep and bear arms.
The ScotUS has ruled that an individual right is protected by the 2nd ammendment. You are free to disagree with them and me, of course.
No disagreement there. McDonald vs Chicago was just tried last year, upholding that states couldn't infringe either. I don't necessarily agree that it's a good thing, however. :P
Mr. Spalding and I were discussing the "militia" clause for the purpose of the National Guard. This is a case where RAW and RAI could conflict in something like Pathfinder and might need a ruling, except that it's never come up.
Bella Sara Charter Superscriber
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The 2nd Amendment is very ambiguously worded, and could easily be interpreted 2 different ways, however the current interpretation is that it allows all citizens to bear arms.And here is the wording:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
Yeah, but that's not how this game is played. Instead, what you need to do is pick your favorite part of the Constitution. Has the Supreme Court had an interpretation consistent with your view? Congratulations! Looks like the Supreme Court did what they were supposed to do!
Now, suppose that there's a part of the Constitution you don't like. Suppose the Supreme Court has interpreted it in a way that you don't like. What do you do? Obviously, you assert that the Constitution has been trampled and not been correctly interpreted!
Then you call yourself a strict constructionist and claim moral superiority.
Rinse, repeat, etc.
Cardinal Malik has done a great job of describing how the current system actually works. I have described how it OUGHT to work, based on our Constitution and the law of nations. I think that the current practice/policy is deeply flawed, and even that parts of it are unconstitutional. He points out the single biggest flaw in the current mode of operation- one man can send the whole country to war. It's very easy for the PotUS to hold Congress as political hostages to his will. As Cardinal Malik has stated, this was pretty clearly not the original intent, but it has been the unfortunate (and I beleive, unintended) outcome of the War Powers Resolution of 1973. The action was supposed to clear up the sort of confusion we saw in Vietnam...but that darned law of unintended consequences...
It's time to fix the War Powers Resolution. The 'grace period' is probably too generous. We need to sharply limit the ability to preemptively or aggressively act against sovereign states, IMO. The President has the authority as commander-in-chief to respond to immediate major threats and to attack pirates, terrorists, etc. Actually invading , overthrowing, and occupying soveriegn states should require a formal declaration of war, IMO. Iraq is a good example of a time when war ought formally to have been declared.
None of this is a change to the Constitution, mind you.
While I agree with what you say here I would point out that the founding members themselves stated multiple times that if the people aren't willing to man up to their responsibilities then they get what they deserve.
So far that's what's happening with the War Powers Resolution.
I do think the president needs some latitude in using the troops when and how he thinks it is needed, but 90 days to get back to congress is probably much too long. Reducing it down to 30 days, or even 14 (two weeks) would be a good move in my book.
The only reason I don't say reduce it down even more is the thought that somehow transportation or communication lines might be cut or mangled during the action (either through Hacking, or distance without modes of transportation) -- currently 2 weeks to 30 days seems like it should be plenty to cover those grounds though.
The 2nd Amendment is very ambiguously worded, and could easily be interpreted 2 different ways, however the current interpretation is that it allows all citizens to bear arms.And here is the wording:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.
Yeah, but that's not how this game is played. Instead, what you need to do is pick your favorite part of the Constitution. Has the Supreme Court had an interpretation consistent with your view? Congratulations! Looks like the Supreme Court did what they were supposed to do!
Now, suppose that there's a part of the Constitution you don't like. Suppose the Supreme Court has interpreted it in a way that you don't like. What do you do? Obviously, you assert that the Constitution has been trampled and not been correctly interpreted!
Then you call yourself a strict constructionist and claim moral superiority.
Rinse, repeat, etc.
Heh..
Yeah, but that's not how this game is played. Instead, what you need to do is pick your favorite part of the Constitution. Has the Supreme Court had an interpretation consistent with your view? Congratulations! Looks like the Supreme Court did what they were supposed to do!Now, suppose that there's a part of the Constitution you don't like. Suppose the Supreme Court has interpreted it in a way that you don't like. What do you do? Obviously, you assert that the Constitution has been trampled and not been correctly interpreted!
Then you call yourself a strict constructionist and claim moral superiority.
Rinse, repeat, etc.
Mister Sebastian, great Pony of extra ponyness -- I appreciate your opinion here, and realize that your always endeavor to raise a conversation to the highest forms possible, with the best arguments possible however in this case I do feel that the game is strictly speaking about discussing how the different parts play together regardless of how we might like them to look.
Just an aside here, on the nature of governmental power... something that is left out but is a vital component.
The United States Government has inherent, sovereign power. We regulate ourselves more then a lot of other countries, but at the end of the day the government is really incapable of making an "illegal" act, as the government cannot be sued unless it decides to set aside its sovereignity, as it often does.
People acting on behalf of the government can and do commit illegal acts, but saying that the government itself is doing something illegal is a bit of a falsehood.
Your constitutional "rights" can be laid aside if there is a compelling, urgent need of the government.
just my two cents.
...the government is really incapable of making an "illegal" act
isn't that rule 0?
The main purpose of the Second Amendment was ultimately to provide for those institutions that would evolve into State National Guards. Because it was originally done on the cheap, individuals serving in the Guard had to provide thier own firepower.
Interesting -- I thought that the second amendment applied to the people's right to bear arms to protect their state, not the state's right to regulate/train/organize those people, as the duty to apportion resources for the training and maintenance of militia and troops is given to Congress.
I've always been taught the purpose of the second amendment was to leave guns in the hands of the people.
I've always been taught the purpose of the second amendment was to leave guns in the hands of the people.The main purpose of the Second Amendment was ultimately to provide for those institutions that would evolve into State National Guards. Because it was originally done on the cheap, individuals serving in the Guard had to provide thier own firepower.
Interesting -- I thought that the second amendment applied to the people's right to bear arms to protect their state, not the state's right to regulate/train/organize those people, as the duty to apportion resources for the training and maintenance of militia and troops is given to Congress.
The intent of the second amendment versus its modern day interpretation is always a subject of heated debate.
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And from what source does the government, at any level, derive its legitimacy? How can a government like ours be said to have any inherent power when it derives its power from the consent of the governed? It seems to me that the essence of our republic is that soveriegnty ultimately rests in the People of the several states. The states have in turn agreed to delegate certain aspects of that power to the federal government, through the mechanism of the Constiution, which is essentially a treaty among the states.Just an aside here, on the nature of governmental power... something that is left out but is a vital component.
The United States Government has inherent, sovereign power. We regulate ourselves more then a lot of other countries, but at the end of the day the government is really incapable of making an "illegal" act, as the government cannot be sued unless it decides to set aside its sovereignity, as it often does.
People acting on behalf of the government can and do commit illegal acts, but saying that the government itself is doing something illegal is a bit of a falsehood.
Your constitutional "rights" can be laid aside if there is a compelling, urgent need of the government.
just my two cents.
I'm not even sure you can claim that power in this case is dolled out at its most base level by the people, but by "some" people. Elections aren't free. Power is still in the hands of people with the funds to get people to compromise themselves and give up what they want. Power derived from the masses cannot exist in a society with such discrepancies in abusable resources.
The constitution is a nice example of a gentleman's agreement. It is not something I advocate getting rid of, though. That gentleman's agreement has kept us afloat for 200 years, but it's only a piece of paper. It's the idea that should be protected.
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And from what source does the government, at any level, derive its legitimacy? How can a government like ours be said to have any inherent power when it derives its power from the consent of the governed? It seems to me that the essence of our republic is that soveriegnty ultimately rests in the People of the several states. The states have in turn agreed to delegate certain aspects of that power to the federal government, through the mechanism of the Constiution, which is essentially a treaty among the states.I'm not even sure you can claim that power in this case is dolled out at its most base level by the people, but by "some" people. Elections aren't free. Power is still in the hands of people with the funds to get people to compromise themselves and give up what they want. Power derived from the masses cannot exist in a society with such discrepancies in abusable resources.
The constitution is a nice example of a gentleman's agreement. It is not something I advocate getting rid of, though. That gentleman's agreement has kept us afloat for 200 years, but it's only a piece of paper. It's the idea that should be protected.
I'm describing theory, not necessarily practice.
Theory is important too.As for the Constitution being 'just a piece of paper' I afraid that cannot agree with you. I gave my solemn oath to uphold and defend it- so it's much more than 'just a piece of paper' to me.
To each their own then.
There is also in the second amendment a portion detailing that a free state will not have its right to bear arms infringed upon. That ambiguous wording is what allows the states to regulate their own armed forces, and the supreme court just ruled on this...Edit: wrong link, gotta go back and find it now
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;Forget it, I'll just go with the body of the constitution instead. :P
Interesting -- I thought that the second amendment applied to the people's right to bear arms to protect their state, not the state's right to regulate/train/organize those people, as the duty to apportion resources for the training and maintenance of militia and troops is given to Congress.I would note that the states have to bow to Congress on this one though -- since it states they may do so according to the discipline prescribed by Congress.
Hmmm...A little odd. I'm certianly no expert on your Constitution but I do know a bit of history in regards to this.
During the War of 1812 each state maintained a large militia - this would be important in a number of cases. Militia forces would often refuse to cross the frontier during important battles. Further as things began to really deteriorate for the US in 1814 the Union itself looked like it was on the verge of dissolving as States stopped sending the central government the collected taxes. Each State maintained its own militia and in the case of a few - like Connecticut, the state militia was better armed and better trained then the federal troops nearby.
It seems clear that the States had trained militia's prior to the ratification of the constitution and that they maintained them (sometimes to a very high state of readiness) even afterwords - further such militia could and did operate outside of the jurisdiction of the federal military.
It seems clear that the States had trained militia's prior to the ratification of the constitution and that they maintained them (sometimes to a very high state of readiness) even afterwords - further such militia could and did operate outside of the jurisdiction of the federal military.
I think we both could agree that "could and did" doesn't mean it was done *legally* or *correctly* though -- many things have happened as 'exceptions' in the history of the USA.
To put it in gamer terms I think with the second amendment it's a case of everyone agrees (mostly) what the mechanics of the situation are -- but aren't in complete agreement on what the fluff or intention of those mechanics are.
I imagine that the situation with the second amendment was as complex when it was written as it is today and that almost all of the reasons we give for it being what it is are correct.
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It seems clear that the States had trained militia's prior to the ratification of the constitution and that they maintained them (sometimes to a very high state of readiness) even afterwords - further such militia could and did operate outside of the jurisdiction of the federal military.I think we both could agree that "could and did" doesn't mean it was done *legally* or *correctly* though -- many things have happened as 'exceptions' in the history of the USA.
To put it in gamer terms I think with the second amendment it's a case of everyone agrees (mostly) what the mechanics of the situation are -- but aren't in complete agreement on what the fluff or intention of those mechanics are.
I imagine that the situation with the second amendment was as complex when it was written as it is today and that almost all of the reasons we give for it being what it is are correct.
I actually wonder if the intent of the 2nd amendment wasn't to be ambiguous. It could change depending on sentiment, but remain intact as it is based on SCOTUS decisions.
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I actually wonder if the intent of the 2nd amendment wasn't to be ambiguous. It could change depending on sentiment, but remain intact as it is based on SCOTUS decisions.It seems clear that the States had trained militia's prior to the ratification of the constitution and that they maintained them (sometimes to a very high state of readiness) even afterwords - further such militia could and did operate outside of the jurisdiction of the federal military.I think we both could agree that "could and did" doesn't mean it was done *legally* or *correctly* though -- many things have happened as 'exceptions' in the history of the USA.
To put it in gamer terms I think with the second amendment it's a case of everyone agrees (mostly) what the mechanics of the situation are -- but aren't in complete agreement on what the fluff or intention of those mechanics are.
I imagine that the situation with the second amendment was as complex when it was written as it is today and that almost all of the reasons we give for it being what it is are correct.
However does that not leave us up to the mercy of the courts? Should we be required to have a court decision on every law that is enacted? Some feel that this is the set up right now.
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However does that not leave us up to the mercy of the courts? Should we be required to have a court decision on every law that is enacted? Some feel that this is the set up right now.I actually wonder if the intent of the 2nd amendment wasn't to be ambiguous. It could change depending on sentiment, but remain intact as it is based on SCOTUS decisions.It seems clear that the States had trained militia's prior to the ratification of the constitution and that they maintained them (sometimes to a very high state of readiness) even afterwords - further such militia could and did operate outside of the jurisdiction of the federal military.I think we both could agree that "could and did" doesn't mean it was done *legally* or *correctly* though -- many things have happened as 'exceptions' in the history of the USA.
To put it in gamer terms I think with the second amendment it's a case of everyone agrees (mostly) what the mechanics of the situation are -- but aren't in complete agreement on what the fluff or intention of those mechanics are.
I imagine that the situation with the second amendment was as complex when it was written as it is today and that almost all of the reasons we give for it being what it is are correct.
I don't know if that was the intent, no. I do think some ambiguity was left intentionally for leeway in unforseen circumstances, but the loopholes left may be too big. I'm not sure the founding fathers could've envisioned individuals owning nuclear weapons, mundane high-level ordinance, or some of what we call "small arms" today. The question is kind of a slippery slope.
Clearly, individuals shouldn't own nuclear weapons or big bombs. But how about an Uzi? Shotgun? PPK? Derringer? It's almost like you have to draw the line at some things but others are clearly okay. So, I'm not sure how to deal with your points other than: It's weird and probably needs to be taken piecemeal.
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However does that not leave us up to the mercy of the courts? Should we be required to have a court decision on every law that is enacted? Some feel that this is the set up right now.I actually wonder if the intent of the 2nd amendment wasn't to be ambiguous. It could change depending on sentiment, but remain intact as it is based on SCOTUS decisions.It seems clear that the States had trained militia's prior to the ratification of the constitution and that they maintained them (sometimes to a very high state of readiness) even afterwords - further such militia could and did operate outside of the jurisdiction of the federal military.I think we both could agree that "could and did" doesn't mean it was done *legally* or *correctly* though -- many things have happened as 'exceptions' in the history of the USA.
To put it in gamer terms I think with the second amendment it's a case of everyone agrees (mostly) what the mechanics of the situation are -- but aren't in complete agreement on what the fluff or intention of those mechanics are.
I imagine that the situation with the second amendment was as complex when it was written as it is today and that almost all of the reasons we give for it being what it is are correct.
I don't know if that was the intent, no. I do think some ambiguity was left intentionally for leeway in unforseen circumstances, but the loopholes left may be too big. I'm not sure the founding fathers could've envisioned individuals owning nuclear weapons, mundane high-level ordinance, or some of what we call "small arms" today. The question is kind of a slippery slope.
Clearly, individuals shouldn't own nuclear weapons or big bombs. But how about an Uzi? Shotgun? PPK? Derringer? It's almost like you have to draw the line at some things but others are clearly okay. So, I'm not sure how to deal with your points...
Fair enough.
However does that not leave us up to the mercy of the courts? Should we be required to have a court decision on every law that is enacted? Some feel that this is the set up right now.
My understanding is that's really how it is supposed to be. Congress makes the laws, the president enforces them and pushes congress to act, and the supreme court sits back and says, "No."
This would also explain why the supreme court is so protected -- they have to be as being the guys that say "No" is extremely unpopular.
The congress was specifically set up to be inefficient to prevent 'mob rule' and to help stop popular but wrong laws from being passed in the first place -- however at times these things happen anyways -- such as much of the patriot act -- the supreme court needs to be in place and of such power as to tell congress, "No" without fear of reprimanding from congress, or threat of reprisal.
IF congress doesn't like the "No" they get from the supreme court they can either try the bill again in a different way, attempt an alteration to the constitution, or do nothing.
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However does that not leave us up to the mercy of the courts? Should we be required to have a court decision on every law that is enacted? Some feel that this is the set up right now.My understanding is that's really how it is supposed to be. Congress makes the laws, the president enforces them and pushes congress to act, and the supreme court sits back and says, "No."
This would also explain why the supreme court is so protected -- they have to be as being the guys that say "No" is extremely unpopular.
The congress was specifically set up to be inefficient to prevent 'mob rule' and to help stop popular but wrong laws from being passed in the first place -- however at times these things happen anyways -- such as much of the patriot act -- the supreme court needs to be in place and of such power as to tell congress, "No" without fear of reprimanding from congress, or threat of reprisal.
IF congress doesn't like the "No" they get from the supreme court they can either try the bill again in a different way, attempt an alteration to the constitution, or do nothing.
Not exactly, see the SCOTUS has the option that for any reason they do not have to take a case. Also in most situations if you have to wait for the courts to make up their minds on a subject you could wait till you have new justices on the courts and just have the entire thing rules differently. It is hard enough for the congress to start something.
I think rather the threat of having to suffer through the courts makes the legislative branch think long and hard at exactly how to word things. That way we do not have the 2nd amendment fiasco on every subject.
Not exactly, see the SCOTUS has the option that for any reason they do not have to take a case. Also in most situations if you have to wait for the courts to make up their minds on a subject you could wait till you have new justices on the courts and just have the entire thing rules differently. It is hard enough for the congress to start something.
I think rather the threat of having to suffer through the courts makes the legislative branch think long and hard at exactly how to word things. That way we do not have the 2nd amendment fiasco on every subject.
Meaning the courts are working as intended. They balance out the legislative branch with the power of "No."
Of course they also have the power of "Yes" which could be used as a negative against the legislative branch (or executive branch) too.
I am of the opinion for example that the government of the USA has absolutely no authority in the constitution to take away any right guaranteed by the bill of rights -- ever.
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Well...you could just find them all guilty of Resisting Arrest under charge of Treason and Sedition and go Rabbit Season on their asses (The perpetration of any act of government that lacks the approval of every citizen being sedition and thus Treason being an assault on the state - huzzah! Acountability!).
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Well...you could just find them all guilty of Resisting Arrest under charge of Treason and Sedition and go Rabbit Season on their asses (The perpetration of any act of government that lacks the approval of every citizen being sedition and thus Treason being an assault on the state - huzzah! Acountability!).
Does not work like that, thankfully.
Well...you could just find them all guilty of Resisting Arrest under charge of Treason and Sedition and go Rabbit Season on their asses (The perpetration of any act of government that lacks the approval of every citizen being sedition and thus Treason being an assault on the state - huzzah! Acountability!).
Get back to Galt you!
And from what source does the government, at any level, derive its legitimacy? How can a government like ours be said to have any inherent power when it derives its power from the consent of the governed? It seems to me that the essence of our republic is that soveriegnty ultimately rests in the People of the several states. The states have in turn agreed to delegate certain aspects of that power to the federal government, through the mechanism of the Constiution, which is essentially a treaty among the states.Just an aside here, on the nature of governmental power... something that is left out but is a vital component.
The United States Government has inherent, sovereign power. We regulate ourselves more then a lot of other countries, but at the end of the day the government is really incapable of making an "illegal" act, as the government cannot be sued unless it decides to set aside its sovereignity, as it often does.
People acting on behalf of the government can and do commit illegal acts, but saying that the government itself is doing something illegal is a bit of a falsehood.
Your constitutional "rights" can be laid aside if there is a compelling, urgent need of the government.
just my two cents.
Theoretically? Our legitimacy comes from our ability to enforce our will on those that would oppose it.
I diasagree with your wording slightly: The federal government has sovereign executive power. The states have been delegated some of that power.
Soveriegnity is inherent and implied. Maybe in our countries infancy it relied on delegation, but that's long since faded away.
I think Studpuffin made some pretty good points about the 2nd amendment, by the by.
Our republic is basically a Plutocracy right now.
Oh and Ewan, you mentioned taking an oath to defend the constitution, and the UNITED STATES for which it stands... I did too, but bringing it up like that isn't a fair card to play and hinders legitimate discussion.
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Theoretically? Our legitimacy comes from our ability to enforce our will on those that would oppose it.I diasagree with your wording slightly: The federal government has sovereign executive power. The states have been delegated some of that power.
Soveriegnity is inherent and implied. Maybe in our countries infancy it relied on delegation, but that's long since faded away.
I think Studpuffin made some pretty good points about the 2nd amendment, by the by.
Our republic is basically a Plutocracy right now.
Oh and Ewan, you mentioned taking an oath to defend the constitution, and the UNITED STATES for which it stands... I did too, but bringing it up like that isn't a fair card to play and hinders legitimate discussion.
I take slight issue with the portion of your quote I have bolded.
I believe the tenth amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
makes it clear that the States are sovreign entities, and have delegated some of that power to the federal government for the common good of the united States.
The small phrase "...or to the people." in conjunction with the ninth amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
suggests something even more to me - the sovreignty of the states derives first from powers delegated to them by the people. The Constituion acknowledges the idea of consent of the governed. Rights reside intrinsically with the people - they are not gifts from the government, or responsibilities of the government to the people.
As for Ewan's mentioning of his oath, I think it's a very fair point to bring up that to many people, the Constition isn't just a piece of paper. It's a set of ideals in governance to many. Just because the oath is to the defense of the Constitution and the nation doesn't mean the importance of the Constitution to him is lessened in some way.
I take slight issue with the portion of your quote I have bolded.
I believe the tenth amendment:
makes it clear that the States are sovreign entities, and have delegated some of that power to the federal government for the common good of the united States.Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Don't think that holds up since the states specifically can't enter into treaties, and are completely limited to obeying the Constitution of the USA.
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Don't think that holds up since the states specifically can't enter into treaties, and are completely limited to obeying the Constitution of the USA.I take slight issue with the portion of your quote I have bolded.
I believe the tenth amendment:
makes it clear that the States are sovreign entities, and have delegated some of that power to the federal government for the common good of the united States.Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Because those are the powers of sovreignty that were delegated to the national government. Also, the dynamics between the states and the federal government were changed drastically in a practical manner by the results of the Civil War - though the Constitution itself didn't change.
I would agree that in current practice most people consider the states to be pretty much counties or parishes...only bigger. But the Constitution makes it clear that the federal government only has powers granted to it by the Constitution - which is a contract between the States. Therefore while the States have ceded much of what would make a sovreign nation sovreign to the federal government, those powers were ceded from the states. The powers the states have are retained by the states, not granted to them by the federal government.
In response to Jess' well written post;
Well, the Civil War more or less determined that federal power trumps state power.
Any "right" you have that can be laid aside it times of crisis isn't really a right. The government could, and would if the situation were dire enough, abridge many of your individual "rights". The way I see it is that we all live inside the U.S., and in return for our abiding by it's laws it provides us with civil liberties.
My trepidation at the mention of the oath is because of the following;
If he's a servicemember, he's throwing the weight of his service behind it, and that makes it a difficult thing to respond to. In fact, by making his statement personal it makes it impossible to reply to it without the reply becoming an attack on his service. If not disregard, but my point is more that when something is stated in that way is discourages people from freely exchanging ideas.
There's a disturbing trend growing in relation to this;
I don't believe it's possible to defend the constitution from the government, and that's a stance that seems to be becoming more and more popular as people claim constitutional mandate. The constitution is a governmental mandate, but the goverment is itself a higher form of power (not the people, the establishment).
Of course the Constitution is important, and I wouldn't think anyone was wrong for stating that.
The Constitution is clearly incorrect on the matter of granted powers. The Government has MANY implied, inherrent powers. Contracting (Procurement), for instance, is not defined in the constitution but is a necessary thing for the government to be able to function.