Tuesday, April 20, 2010

Republican constitutional theory and the principle of judicial review: the wisdom of St. George Tucker

Relax, this isn't a post about the upcoming political fight over President Obama's nominee to replace the soon-to-be-retired Justice John Paul Stevens.  Instead, it is a brief discussion of the idea how the Constitution should be enforced against the government as held by the first Republican Party, the political party led by Jefferson, Madison and others -- the party that would finally morph into the Democratic Party under Andrew Jackson.

The problem of federal compliance with the Constitution.  One of the structural constitutional problems in the early Republic revolved around the problem of enforcing the Constitution on the federal government itself.  If the president or Congress decided to violate the Constitution's protections and requirements, how would their actions be restrained or reversed?  The Constitution itself is silent on question, although insisting via the Supremacy Clause that the federal Constitution was the "supreme law of the land." (US Const., art. VI, cl. 2.)

The Federalist solution:  judicial review.  Federalist constitutional theory posited that the Supreme Court had the power to judicially review legislation enacted by Congress and signed by the president in order to determine its constitutionality.  In a nutshell, if the Court found that the legislation in question was not constitutional, the legislation would be regarded as null and void.  This approach to judicial review was advocated by Alexander Hamilton in The Federalist Papers, specifically No. 78.  It also is the theory that was embraced by Federalist Supreme Court Chief Justice John Marshall in the landmark Supreme Court case of Marbury v. Madison, 5 US 137 (1803). 

Jefferson and Madison's radicalism.  Jefferson was highly skeptical of the idea of judicial review, and Madison, while originally supporting the idea at the Constitutional Convention, eventually grew skeptical of judicial review as well.  During the controversy over the Alien and Sedition Acts, both Jefferson and Madison proposed a different mechanism by which the Constitution's protections could be vindicated in the face of possible abuse by the general government:  the doctrine of nullification.

Under that theory, a state could nullify constitutionally problematic federal legislation within that state's boundaries, effectively shielding its own state citizens from federal overreach.  Sometimes referred to as interposition (from the idea that the state would position itself between its own citizens and the federal government), the Jeffersonian-Madisonian view lived on in American polity well into the 19th century.  As the Jeffersonian Republicans morphed into the Jacksonian Democrats, the new Democratic Party's southern wing's leader, John C. Calhoun, was an ardent proponent of the idea, and much of Southern constitutional theory, both prior to the Civil War and during the Confederate period, was dominated by the idea. 

Another Republican view.  Interestingly enough, however, there was a strong view within the Jeffersonian Republican Party in support of the idea of judicial review, despite Jefferson and Madison's misgivings about the doctrine.  One Republican proponent of judicial review was Virginia jurist St. George Tucker.  Tucker, a federal judge, noted Republican and early proponent of the abolition of slavery, was a major legal theorist in the early Republic, and the author of the first major American edition of Blackstone to be published since Independence. Tucker published his edition of Blackstone in 1803, the same year the Supreme Court decided Marbury v. Madison.  In Note D of the first volume of his edition of Blackstone, Tucker makes a strong appeal to the idea of judicial review as a bulwark of constitutional liberty:
The obligation which the constitution imposes upon the judiciary department to support the constitution of the United States, would be nugatory, if it were dependent upon either of the other branches of the government, or in any manner subject to their control, since such control might operate to the destruction, instead of the support, of the constitution. Nor can it escape observation, that to require such an oath on the part of the judges, on the one hand, and yet suppose them bound by acts of the legislature, which may violate the constitution which they have sworn to support, carries with it such a degree of impiety, as well as absurdity, as no man who pays any regard to the obligations of an oath can be supposed either to contend for, or to defend.
Specifically taking aim at the constitutionality of the Alien and Sedition Acts, the very acts that led his Republican brethren Jefferson and Madison to propose the radical idea of nullification, St. George Tucker writes a robust defense of the principle of judicial review:
If we consider the nature of the judicial authority, and the manner in which it operates, we shall discover that it cannot, of itself, oppress any individual; for the executive authority must lend it's aid in every instance where oppression can ensue from it's decisions: whilst on the contrary, it's decisions in favour of the citizen are carried into instantaneous effect, by delivering him from the custody and restraint of the executive officer, the moment that an acquittal is pronounced. And herein consists one of the great excellencies of our constitution: that no individual can be oppressed whilst this branch of the government remains independent, and uncorrupted; it being a necessary check upon the encroachments, or usurpations of power, by either of the other. Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are bound to pronounce, not only whether the party accused hath been guilty of any violation of it, but whether such a law be permitted by the constitution. If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act. If an individual be persecuted by the executive authority, (as if any alien, the subject of a nation with whom the United States were at that time at peace, had been imprisoned by order of the president under the authority of the alien act, 5 Cong. c. 75) it is then the province of the judiciary to decide whether there be any law that authorises the proceedings against him, and if there be none, to acquit him, not only of the present, but of all future prosecutions for the same cause: or if there be, then to examine it's validity under the constitution, as before-mentioned.
Union and liberty.  Why is this important historically?  Tucker's work demonstrates the strong appeal during the early Republic of the idea of an independent federal judiciary as a block to constitutional abuses by the federal branches.   While some of the top-tier Founders within the Republican fold argued for a constitutional theory that would ultimately tear the Union apart, Tucker defended the idea of liberty under, rather than in opposition to, the Union of the states and the federal government established by the Constitution.

For Tucker, this Union was grounded in the supremacy of the Constitution and protected by the glory of Anglo-American government:  a truly independent judiciary.  Tucker's constitutional vision was consonant with the Federalist vision enunciated by Marshall, as well as the underlying logic of the Union that pre-existed the Constitution and was strengthened by it.  Unlike Jefferson and Madison's proposed solution, which set the stage for Southern jurisprudence that would eventually justify the illegal attempt at succession, St. George Tucker sought to preserve both liberty and the Union.  And did so through the principle of constitutional government and the mechanism of judicial review.

41 comments:

Joe Winpisinger said...

"Under that theory, a state could nullify constitutionally problematic federal legislation within that state's boundaries, effectively shielding its own state citizens from federal overreach. Sometimes referred to as interposition (from the idea that the state would position itself between its own citizens and the federal government), the Jeffersonian-Madisonian view lived on in American polity well into the 19th century. As the Jeffersonian Republicans morphed into the Jacksonian Democrats, the new Democratic Party's southern wing's leader, John C. Calhoun, was an ardent proponent of the idea, and much of Southern constitutional theory, both prior to the Civil War and during the Confederate period, was dominated by the idea."

Well most people forget that the New England states used this too to fight federal encroachment and most striking of all for those that seem to always want to align the "interposition" argument with racism(amazing considering the Jefferson and company used many of these same concepts in the DOI) it was used by northerners in protest of the Fugitive Slave Act! Check it.

This is a debate that we need to have as a nation but all the distortionists poison the well.

Joe Winpisinger said...

Hats off to Jim Babka who talked about "interposition" before it was part of the national dialogue.

Joe Winpisinger said...

I vote for Babka and Frazer to go at it again so we can gain some clarity. Maybe it will go viral.

Mark in Spokane said...

Good point about New England! I had forgotten about the Hartford Resolution, etc. Thanks for pointing that out. It doesn't change my overall position regarding the problems with nullification, but it does provide greater context to the topic of nullification.

I wasn't associating nullification with racism, btw. Nullification began as a doctrine regarding the federal government's actions re: the Alien & Sedition Acts. It only became wrapped up with slavery after the Republicans transformed into the Democrats and John C. Calhoun entered the stage.

My problem with nullification is over the mechanism itself, not necessarily why it is being employed. I don't think there is warrant within the Constitution for the doctrine -- and I think that it its inherently destructive to the notion of a federal republic.

Cheers and thanks for the comments!

Angie Van De Merwe said...

Thanks for enlightening us (me)!

Tom Van Dyke said...

Hamilton assured the new nation in Federalist 28:

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

Heh heh. An axiom. Right.

Mark in Spokane said...

Tom,

That's a great quote. But it doesn't necessitate the doctrine of nullification. Under the original Constitution, the states directly controlled the Senate. The state legislature elected the Senators. That was the key federalist (with a small "f") check on the authority of the federal government.

Joe Winpisinger said...

I was not implying that you were calling nullification arguments racist. But most do. You have studied this enough to know the nuances that most miss. I still disagree with you but this frames the discussion for intelligent debate. It still stand though that much of the same arguments that were used in the DOI were used again in nullification and secession.


Same concept.

Joe Winpisinger said...

I see Federalist 28 has inspired you. Glad I brought it up. Most people look to 51 and 10 for federalism arguments and ignore 28.

Mark in Spokane said...

Joe,

Thanks for the comments. That helps to clarify our respective positions on this topic. The problem with nullification, as I see it, is that it misunderstands the nature of the relationship between the states and the federal government. The states have legitimate jurisdiction within their boundaries, but so does the federal government. Each person in our country, as a consequence, is really subject, concurrently, to two governments, the government of the state in which he or she resides, and the federal government. Nullification requires that the federal government's jurisdiction may be voided by the state -- and that destroys the principle of concurrent jurisdiction that our federal republic is based one. The Supremacy Clause itself embodies this concurrent jurisdiction principle. This is why the doctrine of nullification leads, inevitably, to succession -- it is a denial of the functional jurisdiction of the federal government.

And since the ratification of the 14th Amendment, nullification has become only more problematic. The 14th Amendment vastly expanded the effective power of the federal government's jurisdiction vis a vis the states.

Angie Van De Merwe said...

I am going to jump in here, and possibly share my ignorance, (but hey, how else can you learn?)...

Can we draw analogous distinctions using the argument of states and federal jurisdiction about nation states and globalist U.N. "concerns"?

The President's main obligation in his oath of office is to uphold the Constitution, protecting the nation's citizenry....

Angie Van De Merwe said...

When one looks at the 14th amendment to protect against discrimination, then that can't mean ethnocentricism in regards to globalism, if one holds to Constitutonal boundaries.

Pinky said...

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Here's a question from the peanut gallery:
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What happens when the court declares any law to be unconstitutional?
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Tom Van Dyke said...

Thx for the Federalist 28, Joe. Yes, I liked it: not so much as an authority, for the Federalist Papers hold none, but as a window into what the ratifiers thought they were ratifying.

Mark, I agree about the 17th Amendment. Talk of reversing it has always seemed to be crazy talk, but there's a federalist virtue in having the Senate more directly responsible to the state legislatures.

As for the interposition/nullification debate, it appears that even Madison swung back & forth, depending on the circumstances. His original Virginia Plan empowered the central government to reverse state statutes it didn't like! It's important to keep track of the battles Madison lost.

Y'all might find this helpful.

http://www.tenthamendmentcenter.com/publications/from-interposition-to-nullification-peripheries-and-center-in-the-thought-of-james-madison/#84


I ran across this as quite relevant to today's living constitution battles, an objection at the heart of my own argument, that once we mutate the words of the constitutional text into modern meanings, we might as well have no constitution atall:

" I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.

Not to look farther for an example, take the word "consolidate" in the Address of the Convention prefixed to the Constitution. It there and then meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union."


---letter to Henry Lee, 1824

http://www.constitution.org/jm/18240625_lee.txt

bpabbott said...

Re: "What happens when the court declares any law to be unconstitutional?"

My understanding is that the courts will usually release anyone brought before them who is charged with that law.

However, the law remains on the books, unless repealed by the legislature (hence the many examples of religious tests in State constitutions).

If the executive desires it may appeal the decision, or test the court's patience and continue to charge individuals with the law and bring them before the court and the hope of overturning the prior decision.

... at least that is my understanding.

Pinky said...

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Does that not establish a precedent that can be challenged up to the U.S.Supreme Court where its Constitutionality can be judged?
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bpabbott said...

Re: "Does that not establish a precedent that can be challenged up to the U.S.Supreme Court where its Constitutionality can be judged?"

By "the court", I assumed you meant the USSC.

For lower courts, it is to be expected that the executive will appeal. If not then the what happens is essentially the same, but limited to the jurisdiction of the court.

Pinky said...

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So, how is it then that new laws change the Constitution?
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Ray Soller said...

Ben,

What I gather from your comment regarding religious test oaths, is what I now see as the first examples of a State exercising its authority over the federal constitution. The first occurred on April 8, 1789 when the New York State Chief Justice Richard Morris administered a NYS-styled legislative oath to attending House members, and subsequently on April 30, 1789 when NYS Chancellor Robert Livingston administered the presidential oath to George Washington. In the first instance the religious test oath read, "I, A B a Representative of the United States in the Congress thereof, do solemnly swear (or affirm, as the case may be) in the presence of Almighty GOD, that I will support the Constitution of the United States. So help me GOD." In the second instance it was the "usual and customary mode" that required a sacred text (the Bible) upon which Washington placed his hand and in conclusion sealed his oath with a kiss.

bpabbott said...

Re: "So, how is it then that new laws change the Constitution?"

The constitution can only be changed by amendment (by the legislative branch).

Pinky said...

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Ben. You're missing my point.
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But, it's not important.
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It was a tangent on Judicial Review.
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Angie Van De Merwe said...

I understand that we have these same problems today.

It is a real and present danger when government takes upon itself to be the instigator of determining what is or isn't "virtuous". As virtue has to be the choice of individual citizens, and not a co-ercive "mandate" towards the social complexion of society.

Liberty must be maintained by the "rule of law", but that doesn't mean that the government demands the right to do to its citizenry what it forbids its own citizenry to do. That is, it is not the government's right to steal to "do good". There must be limitations and a balance of power, and accountability for there to be "good government" that does not oppress their people.

It seems some states are already using this 'right' to bring about accountability. What do you think will be the result?

I am afraid that moderate response, though that is most desirable, is not what will 'speak' to those that are empowering themselves at the citizens demise.

Pinky said...

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These are dark waters.
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I'm thinking our major problem in fleshing these questions out may be related to our different takes on the Founding--the Creation of America as a self governing society of people that are declared to have been created equal to each other insofar as unalienable rights are concerned.
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Some of us appear to think of the Founding as a place in time that should be never--ever--meddled with; but, should be preserved as it was and never to be looked at again as something upon which improvements can or should be made. Others believe that our Constitution--precisely in its amendments--calls us to constantly be on the lookout for ways to make improvements.
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None of us were there at the Founding. Had we been there with our two and a quarter century of additional experience, we might have influenced the Founding Fathers to have adjusted their thinking somewhat.
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So, we do what we can in the here and the now as this is where we live.
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Angie Van De Merwe said...

An early childhoos friend has stated it the best way that I have heard, precisely and simply;

Mary Dian Goin says on her "Using My Liberty",

"I'm just puzzled as to why we cannot respect individuals in their diversity, and let that be enough.

I know we have a long way to go toward that ideal: that's why we gather into collectives...for greater identity, friendship, encouragement, and to promote agendas.

People should be free to associate with others..period. But collectives are funny things.

The power they find in numbers can cause them to forget that first and foremost, they are sovereign individuals. The collective is NOT sovereign. Individuals have inherit rights, collectives DO NOT.

Groups can push for civil rights, but once granted, they remain in danger of being altered or entirely removed based on political powers and social climates that swing liberal or conservative.

Collectives can become arrogant, demanding, and downright mean while seeking corporate identity and benefits. Look at unions...a good idea gone awry by people who gained power and influence, and it went to their heads

How ironic, since the union bosses were fighting what they perceived to be the same power control in management. Now, businesses are held hostage by unions.

I'm also puzzled by the need for a Black History Month (if any group deserves their own month it's the Native Americans), Gay Pride Week, and so on.

Which brings me to the story I posted. Just how gay do you have to be to qualify to play in the Gay Softball World Series? Full time? Most of the time? Half the time?

The guys in question are bi-sexuals.I ask, "Why have a Gay Softball World Series in the first place?"

Why not host a softball tournament that celebrates diversity, and invite all those who embrace it participate without imposing the same kinds of restrictions your collective has fought for years to overcome??

While not religiously agreeing with the lifestyles they have chosen, I respect men and women who are gay...not because of their lifestyle, but because--just like me--they are given life, liberty, and the pursuit of happiness.

We may disagree on how to express our lives and pursue happiness, but each of us deserves freedom and civil respect as we live responsibly without direct harm to other's life or property.

I believe personal pride speaks louder in the long run than deriving your sole identity from Gay Pride, Black Pride, Feminist Pride, etc.

Tom Van Dyke said...


It is a real and present danger when government takes upon itself to be the instigator of determining what is or isn't "virtuous". As virtue has to be the choice of individual citizens, and not a co-ercive "mandate" towards the social complexion of society.


Relativistic, postmodern nonsense.

Angie Van De Merwe said...

Tom,
I am Not talking about the "rule of law"!

But, I am talking about the material realm in how one does or doesn't worship God, OR how one does or doesn't spend one's money. That is none of the government's business (unless it is spend supporting illegal activity).

Virtue has to be "character" of those who choose to go beyond the "call of duty".

Duty prescribes behavior to maintain society's environment and is based in its laws. But, virtue is when society flourishes because its citizens are good people that do nice things to those they choose to "bless".

Tom Van Dyke said...

Once you make "virtue" a multiple choice question with 310 million different answers, the concept of "virtue" becomes meaningless.

"Good people doing nice things" is not how the Founders understood the human being. "If men were angels, no government would be necessary." [Federalist 51]

I'm sorry to be giving you a hard time, but all worldviews are not compatible with each other. It's not a question of being "nice," it's the most basic question of all, what we are as a people, and the fundamental view of man's nature.

Pinky said...

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It is a real and present danger when government takes upon itself to be the instigator of determining what is or isn't "virtuous". As virtue has to be the choice of individual citizens, and not a coercive "mandate" towards the social complexion of society.
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As our society was Founded to be an experiment in self-government, it helps us understand such issues as you raise when we appreciate what it means to be involved in an experiment. It looks like you don't get the idea of self-government very well.
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Angie Van De Merwe said...

Tom,
Yes, virtue will be understood within certain contexts, as virtue is the response of the individual to what is called for in a given situation and will be dependent on what is valued, to that particular individual or society. If any action is to take place, then the action will be a value judgment in a free society.

Passive resistance, as well as social activism, or political revolution can all be valued in different situations. And how that is expressed will differ from one individual to the next. One individual may write a book, another may protest, and still antoher may petition the law courts, or a believer may pray, etc.

Angie Van De Merwe said...

Pinky,
I think I have somewhat answered your statement with my answer to Tom.

But, I wonder how you judge, or gauge my life as not "self-governing"? What are your expectations? And what basis do you prescribe my behavior?

Pinky said...

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The reason I made my statement, Angie, was that you were speaking of government as though it were something removed from you--as though it were a foreign force acting upon you rather than something of which you are necessarily such an important part.
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That's why.
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Tom Van Dyke said...

Angie, there's a difference between private virtue and civic virtue.

Interestingly enough, it's Romans 13 that demands that the believer believe, but still obey civil authority even if it's not Christian.

Does Romans 13 demand Christians go tear down the Roman temples? Of course not.

[This is only an illustration of personal vs. civic virtue: one not drag Christianity itself into it.]

Angie Van De Merwe said...

Tom and Pinky,

Private virtue must come before public duty, IF that duty is not in accordance with the rights guaranteed to that citizen. It would be undermining or setting a precedent for the future abuse of power.

But, I agree that the social contract does demand citizens to co-operate in society's "collective", meaning anything that citizen desires to do or be a part of is a valid endeavor...voting is a duty, as well as a right.

So, public "duty" cannot be prescribed in free societies, as citizens have the right and must as a virtuous action choose to engage the public sphere. But, I would suggest that participating in one's familial responsibilities is just as important, as running for public office. The former would not be applauded in the public sphere, except within certain segments that valued that as important.

Pinky said...

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Tom & Pinky?
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Since when?
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Anyhoo....
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Certainly familial responsibilities are important--maybe most important of all duties?
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But, you were complaining about the gummit, right?
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It's just that we grow by trial and error.
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The big picture is what counts for the overall reality.
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Right?
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Angie Van De Merwe said...

Pinky said, "But, you were complaining about the gummit, right?"

I don't know what you mean. Will you explain?

Yes, we do grow through trial and error, many times.

As to the 'big picture', I 'm not sure what you mean. Will you explain?

Pinky said...

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Is this statement yours?
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It is a real and present danger when government takes upon itself to be the instigator of determining what is or isn't "virtuous". As virtue has to be the choice of individual citizens, and not a coercive "mandate" towards the social complexion of society.
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If it is, you personify the government as being outside of yourself--not you. Pretty much, you are questioning the right of your peers (other members of the self governing society in which you are a fully accredited member) to have any oversight by law on you and your activities.
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Angie Van De Merwe said...

Pinky,
It is obvious that today government has over-stepped its bounds, in my opinion. Therefore, I stand be my premise that when government becomes an object of inspection outside of the citizen's knowledge, that is secretive intrusion into private spheres, then it has abused power and become "BIG BROTHER". I think Sarah Palin has encountered such in the intrusion into her private e-mail, which has affected others broadly. Was this concern, or political positioning and a power play? That will be decided in the courts.

But, those who are our friends and family can and do impact our lives in various private areas, as we want their input and advice. This is to be expected, in normal relationships, where there has been trust and confidence built. Otherwise, there is no right to speak.

Pinky said...

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Politics is dirty and always has been.
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There's no doubt that there's a great deal of interference in the way our government works. That comes from corruption in a variety of ways.
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So?
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That points to the fact of the experimental nature of our society. It's up to you and people like you to do something about it. Talk won't do it.
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It is going to take a lot of work on your part if you want to see things get better as far as you're concerned. You have learned, by now, that you cannot trust the political leaders. Sarah Palin has earned some 11 million dollars in royalties since she resigned as governor of Alaska.
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There's a lot to do amount the private interests of the moneyed classes.
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You are the government you are complaining about.
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Ever see a dog chase its tail?
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All of which means that it's time to join a political party and get involved in its workings. Get yourself elected as a county delegate and attend the conventions. You're not a party member just because you swallow the line--that makes you as free as a worm on a hook.
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Pinky said...

By the way, it's easy to get elected as a county delegate. A dozen votes will probably put you in on a write in.
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Tom Van Dyke said...

Those last couple bits are damn interesting, Pinky, and are very good advice.

Surely you know that's how Sarah Palin got started, at the very bottom of local politics, in friggin Alaska. Say what you want about her---and you certainly have, accompanied by a large amount of spittle---but there's no silver spoon in that girl's mouth, and neither did she make her way as somebody's wife, or even as the wife of a rich man. She did it all on her own.

I learn a lot by listening to you, Phil. And I do think you should listen to yourself sometimes. You might learn something.

;-[D>

Joe Winpisinger said...

"The Supremacy Clause itself embodies this concurrent jurisdiction principle"

Only for delegated enumerated powers I would argue.