Tue 23 Feb, 2010
A Question Answered
Comments (2) Filed under: U.S. Constitution by: AdministratorTags: Bill of Rights, Constitution, government
From a comment left yesterday by “Paladin.”
“If the US Constitution was not intended to apply against the states, why do the States have to “ratify” it? If they aren’t bound by it, what’s the purpose of ratification?
How do you explain that something designated as “the supreme law of the Land” is not a restriction on State governments.
What do the following excerpts from Article VI mean then?
“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 Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; ….”Inquiring mind of freedom would like to know.”
I would be curious Paladin, to know where you obtain the language “to apply against the states.” That is strange construction to apply to the Federal Constitution. Nonetheless, an answer is in order since you either seek to discredit what I wrote or truly do not understand the legal principles that are the foundation of the constitutional system. In either case, understanding is lacking and that needs to be rectified.
Without citation, the following is a brief explanation as to what constitutions are, and how they are supposed to work.
Constitutions are formed out of the “social compact” theory of government. (Well, since it is in actual practice, it is really no longer theory.)
The social compact doctrine is built on the principles of covenant relationship, in which members of society covenant together to create an entity (the government) that is able to perform tasks that are impossible for the individuals themselves, in their single capacity, to perform. (Ref. John Locke, Second Treatise of Government)
However, there is a point in which physical boundaries, societal commonality, and other similar factors limit the effectiveness of individuals to covenant together. Hence, we find the rise of the state government.
The governments of the several states, themselves being created by the people and composed of individuals, yet acting as single entities, replicated the social compact doctrine on a larger scale to create a federal government that is defined by the covenant they (the several states) agreed to.
It is this agreeing to the covenant, or compact, which is the Federal Constitution, that is the process we call ratification. This ratification brings into existence a legal instrument that is binding upon the parties agreeing to the instrument, and upon the entity created by the instrument. However, how the states and the Federal government are bound is not the same.
There is a fundamental difference in how the creators of the instrument are bound, versus how the creation of that instrument is bound. We should note the instances in which the Founders referenced that powers were “delegated” to the Federal Government by the several States through the mechanism of the Federal Constitution.
It is not reasonable to assert that once power is delegated, it can also, at once and the same time, be retained by the one delegating the power. Hence, certain powers are given up by the several states and delegated to the Federal Government, so that the Federal Government may perform functions that are far to difficult for the several states individually to perform. If we use here the illustration of power of attorney, we can well understand the confusion that would reign by someone granting power of attorney to another, and then retaining that same power of attorney and acting upon it whensoever one felt compelled to do so. It certainly would not work if I grant another power of attorney to sell my automobile, and then, after power of attorney is granted, I turn around and attempt to sell my car myself. Of what use was that instrument of power of attorney in the first place? Why did I execute it, if I intended to undercut it at the first opportunity?
It is an absurdity to delegate powers, and then assert that you retain the powers you just agreed to delegate to another. Hence, the process of ratification is extremely important to the several states. After all, what powers and functions should they grant to another? What powers and functions are appropriate for a Federal Government? What is too much power and what is too little power?
By the above discussion, we should be able to understand that the instrument that brought about the Federal Government (the U.S. Constitution) must contain some provisions that declare it superior to the laws of all parties agreeing thereto. After all, they agreed to give up certain powers and retain others, and the retained powers cannot conflict with the delegated powers. To insure there is no conflict, some instrument must be declared superior to others, else again confusion will reign, and all effort is wasted.
Here, we should note a significance: If a state chooses not to be party to the compact called the Federal Constitution, then that state is not bound by the few provisions in the Constitution that address what States may not do, but that state is also not granted protection under the Constitution either.
The long and short of it is that states must ratify the Federal Constitution else the covenant is not agreed to, and thus null and void. Moreover, in delegating certain powers, it is essential that all parties to that covenant agree to not exercise themselves in the powers delegated, and when laws are passed pursuant to the exercise of those delegated powers by the created entity (the Federal Government), that they are bound by those laws.
There is yet one additional aspect to consider before leaving off this brief discussion: the issue of continuance in being a party to sustaining that legal instrument designated the U.S. Constitution. It is a principle in law that when power of attorney is executed, the provisions set down in the document determine the duration of that power of attorney. Generally, powers of attorney are for the attaining of a set object, or for a set duration. Hence those powers of attorney cannot be arbitrarily revoked unless the one granted such power engages in misconduct to the point of rendering themselves unfit to retain the power of attorney before the object of the power of attorney is accomplished. However, when a power of attorney does not define a set object or duration, but is granted solely at the discretion of the grantor for purposes beneficial to the grantor, then the grantor of that power of attorney is free to revoke the power of attorney whenever it becomes a liability and not a benefit.
Hence, the several states are parties to the instrument designated the U.S. Constitution, for the creation of a federal government to accomplish ends beneficent to them both individually and collectively. However, since no power was delegated in the instrument to compel any party to maintain continuance as a party to that instrument, then whensoever that instrument becomes more a liability than a benefit to any party to the instrument, that party is free to withdraw from the instrument without penalty of law, since there is no law created whereby they may be compelled to maintain an interest in the instrument (the Constitution). However, in so doing, they also divest themselves of the benefits of that instrument at the moment they withdraw from the instrument.
It should be noted (as discussed previously) that no part or parcel of the Federal Government is free to go beyond the strict bounds of the instrument that created and governs it.
Thus we have the basic reasons set forth as to why the states must ratify the instrument which is the U.S. Constitution and why they are bound by certain limited provisions in the instrument — and, how the Federal Government is far more bound by the Constitution than any of the several states. The Federal Government is nowhere free to leave the bounds of the Constitution, being a creation of it. But the states are free to divest themselves of their interest in the instrument whensoever it becomes more a liability than a benefit.
Paladin says:
If I understand your point in “A Convenient Ignorance”, you’re saying that, 1. The US Constitution does not act as a restraint on the individual states nor provides protections against usurpation of rights for private citizens. In other words, even though it “enumerates” certain Rights “of the people”, the people cannot depend on the Constitution as a protection against usurpation of any of those rights by the States, and 2. The Commerce Clause does not give the Federal Government legitimate authority to regulate firearms in any manner.
If I have that correct, then we agree on #2 but not on #1.
I picked up the language “apply against the states” from reading the opinions from Judge Silverman’s opinion in Parker, Scalia’s opinion in Heller and the various Amici submissions pursuant thereto. I’m no lawyer if that’s what you’re wondering.
When I read the provisions I cited, it is clear to me that all the judges and executive officers, both of the United States and the several states, are required to support said Constitution as the “supreme law of the land” and therefore must be bound by all terms therein (e.g. cannot infringe the RKBA).
Therefore, for example, if anyone (including a convicted felon) is brought before a judge in Arkansas on charges of illegally possessing a weapon, the judge is bound to dismiss those charges as a violation of the 2nd Amendment to the U.S. Constitution. (Regarding Felons, I could not find any mention in the Constitution whereby someone convicted of a felony forfeits any of their God-given, pre-existing, fundamental rights such as the RKBA.)
Further, though I didn’t mention it in the referenced post, the verbiage in Article IV, Sec. 2., “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” also clearly indicates to me that the States are, in fact, restrained by the provisions of the BoR.
I’m not trying to discredit anything. I’m simply trying to understand how “we the people” have been duped by corrupt lawmakers, judges and executive officers of government. It’s like they speak a different version of English than the rest of us.
Maybe I’m just one of those “dumb, dumb, dummies” the Progressives keep referring to.
I’d still like to hear you address the specific verbiage I’ve quoted and explain how it does not require the States to honor the Rights enumerated in the Constitution.
I’m familiar with the so-called “Incorporation Doctrine” and, frankly, consider it LEGAL QUACKERY perpetrated by corrupt courts, legislators and executive officers of government in order to justify their failure to uphold their duties outlined in the Constitution and stated in their required Oaths of Office.
Thanks for addressing my question.
Incongruence | MOWCA Blog says:
[...] 1. a want of congruence; incongruity. 2. out of place, absurd 19:18, 24 February, 2010 р. Paladin says: [...]