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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Tenn. AG reveals ICE released thousands of ‘murderers and rapists’ from detention centers into US streets Kamala Harris Touts Mass Amnesty Offering Fast-Tracked Citizenship to Nearly Every Illegal Alien in U.S. Migration Crisis Fueled Rise in Tuberculosis Cases Study Finds "They’re Going to Try to Kill Trump Again" "Dems' Attempts at Power Grab Losing Their Grip" "Restoring a ‘Great Moderation’ in Fiscal Policy" "As attacks intensify, Trump becomes more popular" Posting Articles Now Working Here Another Test Testing Kamala Harris, reparations, and guaranteed income Did Mudboy Slim finally kill this place? "Why Young Americans Are Not Taught about Evil" "New Rules For Radicals — How To Reinvent Kamala Harris" "Harris’ problem: She’s a complete phony" Hurricane Beryl strikes Bay City (TX) Who Is ‘Destroying Democracy In Darkness?’ ‘Kamalanomics’ is just ‘Bidenomics’ but dumber Even The Washington Post Says Kamala's 'Price Control' Plan is 'Communist' Arthur Ray Hines, "Sneakypete", has passed away. No righT ... for me To hear --- whaT you say ! "Walz’s Fellow Guardsmen Set the Record Straight on Veep Candidate’s Military Career: ‘He Bailed Out’ " "Kamala Harris Selects Progressive Minnesota Governor Tim Walz as Running Mate" "The Teleprompter Campaign" Good Riddance to Ismail Haniyeh "Pagans in Paris" "Liberal groupthink makes American life creepy and could cost Democrats the election". Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: Restoring the 10th Amendment Source: [None] URL Source: [None] Published: Apr 25, 2015 Author: Sen. Roger F. Wicker Post Date: 2015-04-25 12:11:49 by tpaine Keywords: None Views: 18580 Comments: 72 http://townhall.com Restoring the 10th Arrangement Editor's note: This column was co-authored by Congressman John Culberson (R- Texas). One of the basic responsibilities of the executive branch is to execute the law faithfully. The Obama Administration, however, has no problem ignoring this duty to create its own rules. Instead of working with Congress on substantive, collaborative legislation, the president has routinely opted to govern by decree, empowering bureaucrats at the expense of the democratic process. His misguided approach puts partisan politics – not the will of the people – at the forefront of decision-making in Washington. Our reasons for introducing the “Restoring the 10th Amendment Act” stem from serious concerns about the administration’s power grabs. One of the Constitution’s most comprehensive protections is the 10th Amendment, which puts a clear limit on the federal government’s reach. Ratified on December 15, 1791, it states, “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.” Despite these constitutional protections, our personal lives and state authority continue to be affected by federal oversteps. Like many individuals and businesses, we are frustrated by Washington’s red tape and sweeping bureaucratic authority. The president’s big-government agenda lacks transparency and accountability, intruding into our households, businesses, schools, and churches in alarming ways. The 2,700-page health-care law is a prime example of costly government interference, prompting the rise of health-care premiums and cancellations of insurance coverage. The same is true for onerous carbon dioxide rules that hurt U.S. energy independence and ultimately Americans’ wallets. Many of the president’s executive actions have ended up in the courts because of their overwhelming scope. Earlier this year, a federal judge issued a temporary injunction to block the president’s immigration plan until it can be settled in court. More than two-dozen states, including our home states of Mississippi and Texas, have joined the lawsuit against the administration, claiming that the immigration overhaul is a costly and burdensome violation of states’ rights. Our Founding Fathers foresaw the danger of unchecked federal power. In the Constitution, they set forth guiding principles to protect limited government in the new republic. The Bill of Rights, which includes the 10th Amendment, was added to allay fears that individual freedoms could be curtailed by federal encroachment. One wonders what our Founding Fathers would think of Washington today. The onslaught of regulations and executive orders from the Obama administration has chipped away at the 10th Amendment’s division of power, putting more control in bureaucratic hands than that of the people or the states. This executive overreach hardly reflects James Madison’s writings in The Federalist, which noted that the Constitution granted “few and defined” powers to the federal government and left “numerous and indefinite” power to the states. As elected officials, members of Congress have a responsibility to challenge excessive executive action, upholding the Constitution’s time-tested system of checks and balances. We believe the 10th Amendment is integral to this responsibility and the preservation of limited power. Our “Restoring the 10th Amendment Act” would give state government officials special standing in court to dispute regulations and executive orders proposed by a federal agency or the President. In other words, states would have the tools to push back against violations of the 10th Amendment, helping to restore individual liberty and limit the size, power, and cost of the federal government. For the past six years, the Obama administration has used executive measures to score partisan wins on controversial issues. This tactic denies Americans the right to open and transparent debate, one of the core elements of a functioning democracy. The “Restoring the 10th Amendment Act” would be an important step toward restoring accountability, protecting the spirit and letter of the Constitution, and reining in the federal government. Notice anything wrong? Send Silk feedback Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Comments (1-16) not displayed.       .       .       . #17. To: SOSO (#16) The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it. So you claim. -- Post your article, story, or a link. And I'll read it.. I an't believe you haven't already read about this. Pick up any reputable history book about the early days of the Republic and the first few presidents. Translation: -- 'I can't cite anything specific, so I'll fake a reply'. tpaine  posted on  2015-04-26   16:23:47 ET  Reply   Trace   Private Reply   #18. To: tpaine (#17) Translation: -- 'I can't cite anything specific, so I'll fake a reply'. Are you really that ignorant? Or perhaps just unintelligent? If so you won't understand anything that is referenced to you. I guess you never heard of things like the Whiskey Rebellion, Alien Sedition Act, Lousiana Purchase, etc., etc., etc. Out of pity of your ignorance I will just refer you to Madison vs. Marbury. Knock youself put, Sparky. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   16:31:47 ET  Reply   Trace   Private Reply   #19. To: nolu chan, tpaine (#14) "How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:" How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:................................... "the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way?" Incidentally, that's not the only time an early congress mandated that Americans purchase privately sold products: In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[...] Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams." So what is your argument again? потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   16:40:37 ET  Reply   Trace   Private Reply   #20. To: SOSO (#15) For example, can you tell me what the Consitution means by the word person? I certainly can tell you what the Consitution means by the word citizen. I cghallenge you to do the same for person. When they refer to the States, they refer to the political communities of people. If you can tell me what the Constitution means by the word citizen, go ahead and do so. The Fathers and Framers used the term the people in more than one context, and their intended meaning was clear to them. The People. — When the term the people is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise. Thus, the people elect delegates to a constitutional con­vention, and determine by their votes whether the com­pleted work of the convention shall or shall not be adopted; the people choose the officers under the constitution, and so on. For these and similar purposes the electors, though constituting but a small minority of the whole body of the community, nevertheless act for all, and, as being for the time the representatives of sover­eignty, they are considered and spoken of as the sovereign people. But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equally protected. In this case, therefore, the right to assemble is preserved to all the people, and not merely to the electors, or to any other class or classes of the people. [Italics in original, boldface added.] Thomas M Cooley, LL.D.; The General Principles of Constitutional Law in the United States of America; Boston; Little Brown, and Company; 1880; pages 267-268. nolu chan  posted on  2015-04-26   16:43:24 ET  Reply   Trace   Private Reply   #21. To: nolu chan (#20) If you can tell me what the Constitution means by the word citizen, go ahead and do so. Easy Amendment XIV SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. Now please tell me what the Consitution means by the word person. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   17:01:22 ET  Reply   Trace   Private Reply   #22. To: nolu chan (#20) ....and their intended meaning was clear to them. I guess it sure was. The first words of the U.S. Consitution are "We the People of the United States.... Tell me again about how the collective people of the U.S. never did anything. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   17:04:37 ET  Reply   Trace   Private Reply   #23. To: SOSO (#18) (Edited) The constitution itself, in Art III, tells us the powers delegated to the SCOTUS.- - You should try reading it The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it. So you claim. -- Post your article, story, or a link, make a point, and I'll read it and reply I an't believe you haven't already read about this. Pick up any reputable history book about the early days of the Republic and the first few presidents. Translation: -- 'I can't cite anything specific, so I'll fake a reply'. Are you really that ignorant? Or perhaps just unintelligent? If so you won't understand anything that is referenced to you. I guess you never heard of things like the Whiskey Rebellion, Alien Sedition Act, Lousiana Purchase, etc., etc., etc. Out of pity of your ignorance I will just refer you to Madison vs. Marbury. Fine, you're being specific, -- Madison vs Marbury, - correct? You claim that ; -- "The meaning of the Constitution started to be tested the first day of Washington's presidency, and started to be violated almost that same day. You should try reading about it." What exactly should I read about Marbury, or of the other specific topics you listed, that proves some specific point? Do you even have a specific point? Knock youself out, Sparky. -- But make a specific point that's debatable, or post more obvious generalities. tpaine  posted on  2015-04-26   17:26:44 ET  Reply   Trace   Private Reply   #24. To: SOSO, tpaine (#19) So what is your argument again? My first argument is that you used a prohibited large quote from the Washington Post. My second argument is that nobody was arguing the Obama individual mandate. My third argument is that the article you cribbed from Ezra Klein was dated June 26, 2012. What you overlook in quoting his socialist agenda is that on June 28, 2012, the United States Supreme Court ruled the Obamacare individual mandate unconstitutional as a penalty and upheld only under the plenary power to tax. http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf SUPREME COURT OF THE UNITED STATES Syllabus NATIONAL FEDERATION OF INDEPENDENT BUSINESS ET AL. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 2012* [At 2:] Held: The judgment is affirmed in part and reversed in part. 648 F. 3d 1235, affirmed in part and reversed in part. 1. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit. The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be main­tained in any court by any person,” 26 U. S. C. §7421(a), so that thosesubject to a tax must first pay it and then sue for a refund. The pre­sent challenge seeks to restrain the collection of the shared responsi­bility payment from those who do not comply with the individualmandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Con­stitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15. 2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the indi­vidual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30. (a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be reg­ulated. This Court’s precedent reflects this understanding: As ex­pansive as this Court’s cases construing the scope of the commerce 3 Cite as: 567 U. S. ____ (2012) Syllabus power have been, they uniformly describe the power as reaching “ac­tivity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individ­ual mandate, however, does not regulate existing commercial activi­ty. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Con­gress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the prin­ciple that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sus­tained under Congress’s power to “regulate Commerce.” Pp. 16–27. nolu chan  posted on  2015-04-26   20:33:26 ET  Reply   Trace   Private Reply   #25. To: SOSO (#21) Easy Amendment XIV SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. The 14th Amendment is not exclusive and is only a partial declaration of who are citizens. Try again. nolu chan  posted on  2015-04-26   20:41:10 ET  Reply   Trace   Private Reply   #26. To: SOSO, tpaine (#19) If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way? Because interstate commerce is not national defense. The grant of authority is different. And the Obamacare individual mandate only purported to regulate interstate commerce, a meritless legal argument that was rejected by the U.S. Supreme Court. In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. Ezra Klein's assertion is quoted from Einer Elhauge. The Elhauge comment appeared in The New Republic here, If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them? of April 13, 2012. Below is an extract of An Act for the government and regulation of Seamen in the merchants service, of July 20, 1790, consisting of Section 8 regarding Seamen in the merchants service and medical provisions aboard ship. Sec. 8. And be it [further] enacted, That every ship or vessel belonging to a citizen or citizens of the United States, of the burthen of one hundred and fifty tons or upwards, navigated by ten or more persons in the whole, and bound on a voyage without the limits of the United States, shall be provided with a chest of medicines, put up by some apothecary of known reputation, and accompanied by directions for administering the same; and the said medicines shall be examined by the same or some other apothecary, once at least in every year, and supplied with fresh medicines in the place of such as shall have been used or spoiled; and in default of having such medicine chest so provided, and kept fit for use, the master or commander of such ship or vessel shall provide and pay for all such advice, medicine, or attendance of physicians, as any of the crew shall stand in need of in case of sickness, at every port or place where the ship or vessel may touch or trade at during the voyage, without any deduction from the wages of such sick seaman or mariner.(a) (a) The act of Congress of July 20, 1790, for the government and regulation of seamen in the merchant service, has not changed the maritime law, except, perhaps, so far as respects medicines and medical advice, when there is a proper medicine chest, and medical directions on board the vessel. The charges for nursing and lodging are not affected by the act. Harden v. Gordon et al., 2 Mason, 541. The expense of curing a sick seaman, in the course of a voyage, is a charge on the ship by the maritime law. Ibid. The onus probandi in respect to the sufficiency of the medicine chest, lies on the owner, in an action by the seamen for wages. Ibid. A stipulation that the seamen shall pay for medical advice and medicine, without any condition that there shall be a suitable medicine chest, &c, is void as contrary to the act of Congress. Ibid. When a seaman at a foreign port, contracts an ordinary disease, without any fault of his own, and remains on board a vessel which is properly provided with a medicine chest, the expense of a physician, if necessary for the safety of his life is to be deducted from his wages. Holmes v. Hutchinson, Gilpin’s Rep. 448. Ezra Klein quoted Einer Elhauge Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. Here is the alleged law with the alleged employer mandate to buy medical insurance for seaman covered drugs and physician services but not hospital stays. 605 FIFTH CONGRESS. Sess. II. Ch. 77. 1798. Statute II. Chap. LXXVII.—An Act for the relief of sick and disabled Seamen.(a) Section I. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen, that shall have been employed on board such vessel since she was last entered at any port in the United States,—and shall pay to the said collector, at the rate of twenty cents per month for every __________ (a) The acts passed by Congress, for the relief of sick and disabled seamen, have been ; An act for the relief of sick and disabled seamen, July 16, 1798, chap. 77; an act in addition to an act for the relief and protection of American seamen, March 2, 1799, chap. 36; an act for the relief and protection of American seamen, May 28, 1796, chap. 36; an act supplementary to the "act concerning consuls and vice consuls," and for the further protection of American seamen, February 28, 1803, chap. 9. 606 FIFTH CONGRESS. Sess. II. Ch. 77. 1798. seaman so employed; which sum he is hereby authorized to retain out of the wages of such seamen. Sec. 2. And be it further enacted, That from and after the first day of September next, no collector shall grant to any ship or vessel whose enrolment or license for carrying on the coasting trade has expired, a new enrolment or license before the master of such ship or vessel shall first render a true account to the collector, of the number of seamen, and the time they have severally been employed on board such ship or vessel, during the continuance of the license which has so expired, and pay to such collector twenty cents per month for every month such seamen have been severally employed, as aforesaid; which sum the said master is hereby authorized to retain out of the wages of such seamen. And if any such master shall render a false account of the number of men, and the length of time they have severally been employed, as is herein required, he shall forfeit and pay one hundred dollars. Sec. 3. And be it further enacted, That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the Secretary of the Treasury; and the President of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick or disabled seamen, in the hospitals or other proper institutions now estab-lished in the several ports of the United States, or, in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the monies collected in any one district, shall be expended within the same. Sec. 4. And be it further enacted, That if any surplus shall remain of the monies to be collected by virtue of this act, after defraying the expense of such temporary relief and support, that the same, together with such private donations as may be made for that purpose (which the President is hereby authorized to receive) shall be invested in the stock of the United States, under the direction of the President; and when, in his opinion, a sufficient fund shall be accumulated, he is hereby authorized to purchase or receive cessions or donations of ground or buildings, in the name of the United States, and to cause buildings, when necessary, to be erected as hospitals for the accommodation of sick and disabled seamen. Sec. 5. And be it further enacted, That the President of the United States be, and he is hereby authorized to nominate and appoint, in such ports of the United States, as he may think proper, one or more persons, to be called directors of the marine hospital of the United States, whose duty it shall be to direct the expenditure of the fund assigned for their respective ports, according to the third section of this act; to provide for the accommodation of sick and disabled seamen, under such general instructions as shall be given by the President of the United States, for that purpose, and also subject to the like general instructions, to direct and govern such hospitals as the President may direct to be built in the respective ports: and that the said directors shall hold their offices during the pleasure of the President, who is authorized to fill up all vacancies that may be occasioned by the death or removal of any of the persons so to be appointed. And the said directors shall render an account of the monies received and expended by them, once in every quarter of a year, to the Secretary of the Treasury, or such other person as the President shall direct; but no other allowance or compensation shall be made to the said directors, except the payment of such expenses as they may incur in the actual discharge of the duties required by this act. Approved, July 16, 1798. nolu chan  posted on  2015-04-26   21:00:17 ET  Reply   Trace   Private Reply   #27. To: SOSO (#22) I guess it sure was. The first words of the U.S. Consitution are "We the People of the United States.... Tell me again about how the collective people of the U.S. never did anything. Tell me how the consolidated, collective people of the United States ever did anything. The collective people of the United States did not draft or ratify the Constitution. The Union under the Articles of Confederation contained 13 states. After Washington was inaugurated, the new constitutional union was a union of 11 ratifying states. nolu chan  posted on  2015-04-26   21:05:13 ET  Reply   Trace   Private Reply   #28. To: nolu chan (#25) The 14th Amendment is not exclusive and is only a partial declaration of who are citizens. Try again. As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   21:38:42 ET  Reply   Trace   Private Reply   #29. To: nolu chan (#27) The collective people of the United States did not draft or ratify the Constitution. Then how do contemporary US politicians truthfully remark that they are performing: "the will of the People?" buckeroo  posted on  2015-04-26   21:42:11 ET  Reply   Trace   Private Reply   #30. To: nolu chan, tpaine (#27) Tell me how the consolidated, collective people of the United States ever did anything. First, as soon as you tell me the meaning of person in the Constitution. Second, I just proved the contention that people meant the States as you claimed more than once is inaccurate. Do you not understand what We The People of The United States means, the very first words of the U.S. Constitution? To who were the Founding Fathers referring? Themselves? The States? Explain to me to who the Rights enumerated in the Bill of Rights accure. The individual States? The people of the respective States? Or to the People of the U.S. collectively, whether a citizen or not? Third, it must be very tiring going that far you your asses to pull out the nonesense you are trying to peddle. Fourth, the plain simple truth is none of the framers, signatories or ratifiers of the U.S. Constitution had a clear and accurate understanding of what the Consitution meant, much less was there total agreement on what the intention was other than to deliberately make the language less than definitive, to make the language flexible and subject to interpretation. Fifth, at least one of you is a total disingenous idiot in pretending not to know that Executive and Legislative Branches, partically the Executive, starting pushing the limits of their respective authorities under the Constitution virtually from day one of Washington's presidency. It's incredible that all that dolt can do is continue to babble horse crap of not making a point when I have made it crystal clear and will do again below. Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. Historically it has been the Executive Office that has pushed the boundardies, but not exclusively. And guess what, when there was no push back voila the power that was claimed de facto became constitutional. That is an indisputable fact of how we got to where we are today, i.e. an ever more poweful and unchecked Imperial Presidency, an ever more powerful and unchecked Federal government, the ever diminishing power of the States, and, ever changing, redefinition of individual rights. потому что Бог хочет это тот путь SOSO  posted on  2015-04-26   22:10:37 ET  Reply   Trace   Private Reply   #31. To: SOSO, tpaine (#19) "How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:" How far can the definition of Congress' enumerated powers be stretched? As Justice Scalia asked during oral arguments:................................... "the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way?" People not familiar with these statements might just be led to believe that Justice Antonin Scalia said such a thing. "the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a 'well-regulated' militia with a mandate, why can’t Congress regulate interstate commerce the same way?" That part is a quote from Akhil Reed Amar. Scalia and other conservative justices eviscerated the meritless argument of Solicitor General Donald Verrilli. JUSTICE KENNEDY: I'm not sure which way it cuts. If the Congress has alternate means, let's assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it's using and use the correct power. On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I'm not sure which the way the argument goes. GENERAL VERRILLI: Let me try to answer that question, Justice Kennedy, and get back to the question you asked me earlier. The, the — I do think one striking feature of the argument here that this is a novel exercise of power is that what Congress chose to do was to rely on market mechanisms and efficiency and a method that has more choice than would the traditional Medicare/Medicaid type model; and so it seems a little ironic to suggest that that counts against it. But beyond that, in the sense that it's novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones and Laughlin; or the — the dairy price supports in Wrightwood Dairy and Rock Royal - JUSTICE SCALIA: Oh, no, it's not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you're regulating somebody who isn't covered. By the way, I don't agree with you that the relevant market here is health care. You're not regulating health care. You're regulating insurance. It's the insurance market that you're addressing and you're saying that some people who are not in it must be in it and that's — that's difference from regulating in any manner commerce that already exists out there. GENERAL VERRILLI: Well, to the extent that we are looking at the comprehensive scheme, Justice Scalia, it is regulating commerce that already exists out there. And the means in which that regulation is made effective here, the minimum coverage provision, is a regulation of the way in which people participate, the method of their payment in the health care market. That is what it is. And I do think, Justice Kennedy, getting back to the question you asked before, what — what matters here is whether Congress is choosing a tool that's reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past. That's not something that counts against the provision in a Commerce Clause analysis. JUSTICE SCALIA: Wait. That's — that's --it's both "Necessary and Proper." What you just said addresses what's necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we've held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also is — may be necessary, but it's not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do? GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation - JUSTICE SCALIA: No, that wasn't my point. That is not the only constitutional principle that exists. GENERAL VERRILLI: But it - JUSTICE SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that's a principle? GENERAL VERRILLI: Of course we do, Your Honor. JUSTICE SCALIA: Okay. That's what we are talking about here. GENERAL VERRILLI: And the way in which this Court in its cases has policed the boundary that — of what's in the national sphere and what's in the local sphere is to ask whether Congress is regulating economic activity with a substantial effect on interstate commerce. And here I think it's really impossible, in view of our history, to say that Congress is invading the State sphere. This is a — this is a market in which 50 percent of the people in this country get their health care through their employer. There is a massive Federal tax subsidy of $250 billion a year that makes that much more affordable. ERISA and HIPAA regulate that to ensure that the kinds of bans on pre-existing condition discrimination and pricing practices that occur in the individual market don't occur. JUSTICE SCALIA: I don't understand your - GENERAL VERRILLI: This is in - JUSTICE SCALIA: Whatever the States have chosen not to do, the Federal Government can do? GENERAL VERRILLI: No, not at all. JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not. GENERAL VERRILLI: But this — but, Your Honor, this is — what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce that will be upheld. And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process - CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it's an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner. - - - - - JUSTICE SCALIA: Why do you — why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why - GENERAL VERRILLI: That's correct, Justice Scalia, but you never know whether you're going to be that person. JUSTICE SCALIA: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli. GENERAL VERRILLI: No, that's quite different. That's quite different. The food market, while it shares that trait that everybody's in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don't know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can't pay for it. It doesn't - JUSTICE SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis? I mean, it's — it's a basis that explains why the government is doing this, but is it — is it a basis which shows that this is not going beyond what — what the — the system of enumerated powers allows the government to do. GENERAL VERRILLI: Yes, for two reasons. First, this — the test, as this Court has articulated it, is: Is Congress regulating economic activity with a substantial effect on interstate commerce? - - - - - GENERAL VERRILLI: That — that absolutely is a justification for Congress's action here. That is existing economic activity that Congress is regulating by means of this rule. JUSTICE SCALIA: General Verrilli, you --you could say that about buying a car. If — if people don't buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car. GENERAL VERRILLI: That is not what we are saying, Justice Scalia. JUSTICE SCALIA: That's not — that's not what you're saying. GENERAL VERRILLI: That's not — not - JUSTICE SCALIA: I thought it was. I thought you were saying other people are going to have to pay more for insurance because you're not buying it. GENERAL VERRILLI: No. It's because you're going — in the health care market, you're going into the market without the ability to pay for what you get, getting the health care service anyway as a result of the social norms that allow — that — to which we've obligated ourselves so that people get health care. JUSTICE SCALIA: Well, don't obligate yourself to that. Why — you know? GENERAL VERRILLI: Well, I can't imagine that that — that the Commerce Clause would —would forbid Congress from taking into account this deeply embedded social norm. JUSTICE SCALIA: You — you could do it. But — but does that expand your ability to, to issue mandates to — to the people? GENERAL VERRILLI: I — I — this is not a purchase mandate. This is a — this is a law that regulates the method of paying for a service that the class of people to whom it applies are either consuming -- - - - - - JUSTICE KENNEDY: Can you create commerce in order to regulate it? GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis. In this case, the — what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And -- JUSTICE SCALIA: Any self purchasing? Anything I — you know if I'm in any market at all, my failure to purchase something in that market subjects me to regulation. GENERAL VERRILLI: No. That's not our position at all, Justice Scalia. In the health care market, the health care market is characterized by the fact that aside from the few groups that Congress chose to exempt from the minimum coverage requirement — those who for religious reasons don't participate, those who are incarcerated, Indian tribes — virtually everybody else is either in that market or will be in that market, and the distinguishing feature of that is that they cannot, people cannot generally control when they enter that market or what they need when they enter that market. CHIEF JUSTICE ROBERTS: Well, the same, it seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don't know when you're going to need it; you're not sure that you will. But the same is true for health care. You don't know if you're going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it. So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are? GENERAL VERRILLI: No, Mr. Chief Justice. think that's different. It's — We — I don't think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won't be able to control what they need when they enter but when they - CHIEF JUSTICE ROBERTS: It seems to me that's the same as in my hypothetical. You don't know when you're going to need police assistance. You can't predict the extent to emergency response that you'll need. But when you do, and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it — get it. GENERAL VERRILLI: I think the fundamental difference, Mr. Chief Justice, is that that's not an issue of market regulation. This is an issue of market regulation, and that's how Congress, that's how Congress looked at this problem. There is a market. Insurance is provided through the market system - JUSTICE ALITO: Do you think there is a, a market for burial services? GENERAL VERRILLI: For burial services? JUSTICE ALITO: Yes. GENERAL VERRILLI: Yes, Justice Alito, I think there is. JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, "You know what you're doing? You are financing your burial services right now because eventually you're going to die, and somebody is going to have to pay for it, and if you don't have burial insurance and you haven't saved money for it, you're going to shift the cost to somebody else." Isn't that a very artificial way of talking about what somebody is doing? GENERAL VERRILLI: No, that - JUSTICE ALITO: And if that's true, why isn't it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services? GENERAL VERRILLI: It's, I think it's completely different. The — and the reason is that the, the burial example is not — the difference is here we are regulating the method by which you are paying for something else — health care — and the insurance requirement — I think the key thing here is my friends on the other side acknowledge that it is within the authority of Congress under Article I under the commerce power to impose guaranteed-issue and community rating forms, to end — to impose a minimum coverage provision. Their argument is just that it has to occur at the point of sale, and -- JUSTICE ALITO: I don't see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What's the difference? GENERAL VERRILLI: Well, one big difference, one big difference, Justice Alito, is the — you don't have the cost shifting to other market participants. Here -- JUSTICE ALITO: Sure you do, because if you don't have money then the State is going to pay for it. Or some -- GENERAL VERRILLI: That's different. JUSTICE ALITO: Or a family member is going to pay. GENERAL VERRILLI: That's a difference and it's a significant difference. In this situation one of the economic effects Congress is addressing is that the — there — the many billions of dollars of uncompensated costs are transferred directly to other market participants. It's transferred directly to other market participants because health care providers charge higher rates in order to cover the cost of uncompensated care, and insurance companies reflect those higher rates in higher premiums, which Congress found translates to a thousand dollars per family in additional health insurance costs. JUSTICE ALITO: But isn't that a very small part of what the mandate is doing? You can correct me if these figures are wrong, but it appears to me that the CBO has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in — in 2016. Respondents — the economists have supported — the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't — if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else. GENERAL VERRILLI: No, I think that — I do think that's what the Respondents argue. It's just not right. I think it — it really gets to a fundamental problem with their argument. nolu chan  posted on  2015-04-26   23:16:44 ET  Reply   Trace   Private Reply   #32. To: SOSO (#28) [SOSO #28] As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? A human being from birth to death. Courts consider corporations and similar entities as fictional persons for legal purposes. You are invited to share your insight into the Court's opinion in Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394 (1886). [SOSO #15] For example, can you tell me what the Consitution means by the word person? I certainly can tell you what the Consitution means by the word citizen. I cghallenge you to do the same for person. [SOSO #21] Easy Amendment XIV SECTION. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. If that is the definition of citizen, there were no defined citizens before 1868. Moreover, persons born overseas to U.S. parents become natural born U.S. citizens at birth. They are not born in the United States nor are they naturalized. You volunteered to share your knowledge about citizenship. nolu chan  posted on  2015-04-26   23:37:58 ET  Reply   Trace   Private Reply   #33. To: SOSO (#30) First, --- you tell me the meaning of person in the Constitution. No, not untill you explain what would be the point of doing so. Second, I just proved the contention that people meant the States as you claimed more than once is inaccurate. You may think you proved something, but I doubt it. Do you not understand what We The People of The United States means, the very first words of the U.S. Constitution? To who were the Founding Fathers referring? Themselves? The States? Explain to me to who the Rights enumerated in the Bill of Rights accure. The individual States? The people of the respective States? Or to the People of the U.S. collectively, whether a citizen or not? Sorry, but your multi question demand will not be answered tonite.. Give me a day or so to write the multi-thousand word book length reply. Third, it must be very tiring going that far you your asses to pull out the nonesense you are trying to peddle. The only nonsense here is the pointless generalities you've posted so far. Fourth, the plain simple truth is none of the framers, signatories or ratifiers of the U.S. Constitution had a clear and accurate understanding of what the Consitution meant, much less was there total agreement on what the intention was other than to deliberately make the language less than definitive, to make the language flexible and subject to interpretation. Finally! - A specific opinion about what you think of our constitution and its framers.. Where did you come up with such a bizarre interpretation? Fifth, at least one of you is a total disingenous idiot in pretending not to know that Executive and Legislative Branches, partically the Executive, starting pushing the limits of their respective authorities under the Constitution virtually from day one of Washington's presidency. It's incredible that all that dolt can do is continue to babble horse crap of not making a point when I have made it crystal clear and will do again below. I'm holding my breath for 'the point'... Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. That's your point? That the real meaning of our constitution is defined by how it's tested? -- Weird reasoning, and you're right, I can't understand it.. Historically it has been the Executive Office that has pushed the boundardies, but not exclusively. And guess what, when there was no push back voila the power that was claimed de facto became constitutional. That is an indisputable fact of how we got to where we are today, i.e. an ever more poweful and unchecked Imperial Presidency, an ever more powerful and unchecked Federal government, the ever diminishing power of the States, and, ever changing, redefinition of individual rights. Well, I asked for specifics, and you finally gave them. Now I just have to figure out how to formulate a reasonable response to an unreasonable theory. --- Maybe tomorrow.. tpaine  posted on  2015-04-27   0:04:59 ET  Reply   Trace   Private Reply   #34. To: nolu chan (#32) [SOSO #28] As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? A human being from birth to death. Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:35:38 ET  Reply   Trace   Private Reply   #35. To: tpaine (#33) Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. That's your point? That the real meaning of our constitution is defined by how it's tested? Not how its tested but what is tested. Man are you dense. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:37:27 ET  Reply   Trace   Private Reply   #36. To: buckeroo (#29) The collective people of the United States did not draft or ratify the Constitution. Then how do contemporary US politicians truthfully remark that they are performing: "the will of the People?" Contemporary US politicians do not truthfully remark much at all. If you like your doctor, you can keep your doctor. Period. If you like your plan, you can keep your plan. Period. They lie. Shocker! There has never been a national referendum to decide anything. Whether to elect a president or to amend the Constitution, the people act, and can only act, as States. Only 12 states even participated in the Constitutional Convention. Only 11 states ratified before Washington was inaugurated. Only 10 states participated in the electoral college. There was no popular vote. There were a few more presidential elections with no popular vote. There is no individual right to vote for president. It is up to the State legislatures to designate how the election is done. The State can change its laws and go back to having the State legislature select the delegates for the Electoral College. The people of the United States have no power to do anything as one big consolidated political community. nolu chan  posted on  2015-04-27   0:38:14 ET  Reply   Trace   Private Reply   #37. To: tpaine (#33) Sorry, but your multi question demand will not be answered tonite.. Give me a day or so to write the multi-thousand word book length reply. LMAO. That's very Linconesque of you. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:38:38 ET  Reply   Trace   Private Reply   #38. To: SOSO (#34) Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. No. It is long past time for you to answer questions. nolu chan  posted on  2015-04-27   0:39:09 ET  Reply   Trace   Private Reply   #39. To: SOSO (#35) -- you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. That's your point? That the real meaning of our constitution is defined by how it's tested? Not how its tested but what is tested. That's your point? That the real meaning of our constitution is defined by how it's tested? -- Or by what is tested? Man are you dense. Man, are you pedantic. tpaine  posted on  2015-04-27   0:49:40 ET  Reply   Trace   Private Reply   #40. To: SOSO (#37) Sorry, but your multi question demand will not be answered tonite.. Give me a day or so to write the multi-thousand word book length reply. LMAO. That's very Linconesque of you. Your gullibility aside, thanks for the compliment.. tpaine  posted on  2015-04-27   0:52:16 ET  Reply   Trace   Private Reply   #41. To: nolu chan (#38) Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. No. It is long past time for you to answer questions. Stop playing games. You know quite well that you can't defend your answer as the Constitution does not define person at all. The best we can do is to infer what the FF meant by the term in the context of specific usage, which opens the door wide to interpretation and assumptions. Confounding the issue us that sometimes person is spelled with an upper case p and sometimes a lower case p. It is long past time for you to answer questions. Ask away. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   0:56:29 ET  Reply   Trace   Private Reply   #42. To: tpaine (#39) Or by what is tested? Try to learn something. "Washington believed he had to act. He and his cabinet members met with Pennsylvania officials. They decided to present evidence of the violence to Associate Justice of the Supreme Court James Wilson. After reviewing the evidence, Wilson certified that the situation could not be controlled by civil authorities alone. A military response could proceed." Try to learn some more. "The Whiskey Rebellion also occupies a distinguished place in American jurisprudence. Serving as the backdrop to the first treason trials in the United States, the Whiskey Rebellion helped delineate the parameters of this constitutional crime. Article III, Section 3 of the U.S. Constitution defines treason as "levying War" against the United States. During the trials of the two men convicted of treason, Circuit Court Judge william paterson instructed the jury that "levying war" includes armed opposition to the enforcement of a federal law." потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   1:01:46 ET  Reply   Trace   Private Reply   #43. To: tpaine (#42) If you have the stomach, learn some more. "The first test of the strength of the government founded on the new Constitution was made in Pennsylvania, in 1794, by a rebellion against the payment of the excise tax.". The Whiskey Rebellion was the first test of the Consitution and it was done by GW in person. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   1:06:44 ET  Reply   Trace   Private Reply   #44. To: SOSO (#42) (Edited) That's your point? That the real meaning of our constitution is defined by how it's tested? -- Or by what is tested? Try to learn something. --- "Washington believed he had to act. He and his cabinet members met with Pennsylvania officials. They decided to present evidence of the violence to Associate Justice of the Supreme Court James Wilson. After reviewing the evidence, Wilson certified that the situation could not be controlled by civil authorities alone. A military response could proceed. There you go again, pasting up the above link, pretending you've made some sort of point. Boy, are you dense. If you have the stomach, learn some more. --- "The first test of the strength of the government founded on the new Constitution was made in Pennsylvania, in 1794, by a rebellion against the payment of the excise tax.". The Whiskey Rebellion was the first test of the Consitution and it was done by GW in person So? What exactly do you imagine you're proving? tpaine  posted on  2015-04-27   1:16:22 ET  Reply   Trace   Private Reply   #45. To: SOSO, tpaine (#30) Third, it must be very tiring going that far you your asses to pull out the nonesense you are trying to peddle. Speaking of which, I suggest you back up fifty paces, sprint forward as fast as you can, do a triple somersault and disappear up your own ass. May the force be with you and thank you for your cooperation. nolu chan  posted on  2015-04-27   16:44:14 ET  Reply   Trace   Private Reply   #46. To: SOSO, tpaine (#30) First, as soon as you tell me the meaning of person in the Constitution. Already done. #32. Second, I just proved the contention that people meant the States as you claimed more than once is inaccurate. Saying you proved something is not the same as proving it. You are proving you can give a reasonable impression of yukon. States are the political communities of the United States. The people of the United States are the citizens of the states. When Washington was inaugurated, it was eleven political communities known as states. Do you not understand what We The People of The United States means, the very first words of the U.S. Constitution? To who were the Founding Fathers referring? Themselves? The States? The Founding Fathers were not addressing anyone. The Constitution was drafted by the Framers in 1787, not the Founders. They were the citizens of the thirteen states. The thirteen separate political communities were connected together by the Articles of Confederation. By a "state," I mean a complete body of free persons united together for their common benefit to enjoy peaceably what is their own and to do justice to others. It is an artificial person. U.S. Supreme Court, 2 Dal. 455 (1793) "The PEOPLE of the United states" are the first personages introduced. Who were those people? They were the citizens of thirteen states, each of which had a separate constitution and government, and all of which were connected together by Articles of Confederation. U.S. Supreme Court, 2 Dal. 463 (1793) thirteen sovereignties were considered as emerged from the principles of the Revolution U.S. Supreme Court, 2 Dal. 463 (1793) There is at least one strong undeniable fact against this incompatibility, and that is this -- any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. U.S. Supreme Court, 2 Dal. 473 (1793) All the people of one state are the state. U.S. Supreme Court, 9 Wheat. 187 (1824) As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. The States? Explain to me to who the Rights enumerated in the Bill of Rights accure. Tom, Dick and Harry. And Jane. Fourth, the plain simple truth is none of the framers, signatories or ratifiers of the U.S. Constitution had a clear and accurate understanding of what the Consitution meant, much less was there total agreement on what the intention was other than to deliberately make the language less than definitive, to make the language flexible and subject to interpretation. Gee, if nobody knew what anything meant, not even the people who wrote it, how did it create a binding agreement? Is that the words living constitution that you are trying to channel? If you somehow adopt a philosophy that the Constitution itself is not static, but rather, it morphs from age to age to say whatever it ought to say — which is probably whatever the people would want it to say — you've eliminated the whole purpose of a constitution. And that's essentially what the 'living constitution' leaves you with Scalia says. Fifth, at least one of you is a total disingenous idiot in pretending not to know that Executive and Legislative Branches, partically the Executive, starting pushing the limits of their respective authorities under the Constitution virtually from day one of Washington's presidency. It's incredible that all that dolt can do is continue to babble horse crap of not making a point when I have made it crystal clear and will do again below. You have made absolutely nothing crystal clear, not even who you are addressing. Perhaps both of you don't understand that the de facto meaning of the Consitution was, and continues to be, defined by testing it with actions. Historically it has been the Executive Office that has pushed the boundardies, but not exclusively. And guess what, when there was no push back voila the power that was claimed de facto became constitutional. That is an indisputable fact of how we got to where we are today, i.e. an ever more poweful and unchecked Imperial Presidency, an ever more powerful and unchecked Federal government, the ever diminishing power of the States, and, ever changing, redefinition of individual rights. You are the one who says "none of the framers, signatories or ratifiers of the U.S. Constitution had a clear and accurate understanding of what the Consitution meant, much less was there total agreement on what the intention was other than to deliberately make the language less than definitive, to make the language flexible and subject to interpretation." It seems the new standard to test whether something is constitutional is to determine if anyone has done something. If they have, it's constitutional. But Obama and Congress passed a law implementing an individual mandate as a penalty and the Court said that was unconstitutional. Indeed, after segregation was constitutional for a long, long time, the Court somehow discovered it wasn't. After about two centuries of banning same-sex marriage, such a ban has recently been discovered to be unconstitutional. I just do not understand why the de facto standard failed. Apparently, they were all just stumbling around clueless, waiting for an enlightened someone such as yourself to come along and explain it all. And guess what, when there was no push back voila the power that was claimed de facto became constitutional. In your certain knowledge that everything being done is constitutional, you have nothing left to blather about. What is the constitutional meaning of the word is? nolu chan  posted on  2015-04-27   16:46:07 ET  Reply   Trace   Private Reply   #47. To: SOSO (#34) Please give the specific citint/language in the Constitution that says a person is a human being from birth to death. 90. A number of rules have been adopted, the ob­servance of which will enable the judge to discover the intention of the legislature, and thus decide what the law is. They are principally the following: 1. When the law is clear, it must not be eluded under the pretext of grasping its intention.(c) Words must be used in their usual and most known significa­tion, unless they appear plainly to have been used in another sense;(d) and in the construction of an obscure law, the most natural sense is to be preferred, or that which is the least difficult of execution.(e) (c) Crocker v. Crane, 21 Wend. 211; Bartlet v. Morris, 9 Port. 266. (d) Merchants' Bank v. Cook, 4 Pick. 405. (e) 1 BL Com. 60. John Bouvier, Institutes of American Law, Vol. 1, (1854), p. 41. Person used in its most usual and most known signification means a human being. Persons as used in the Constitution refers to human beings, but does not include the dead, the undead, or the unborn. If you have a better definition, give it and justify it. I you believe you can either add to or delete from those I include in the definition, state your case. The original Law Dictionary adopted by Congress for its use was Bouvier's Law Dictionary. Here is it's 1856 edition definition of person. PERSON. This word is applied to men, women and children, who are called natural persons. In law, man and person are not exactly-synonymous terms. Any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c. A person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes. 1 Bouv. Inst. n. 137. 2. It is also used to denote a corporation which is an artificial person. 1 Bl. Com. 123; 4 Bing. 669; C. 33 Eng. C. L R. 488; Wooddes. Lect. 116; Bac. Us. 57; 1 Mod. 164. 3. But when the word "Persons" is spoken of in legislative acts, natural persons will be intended, unless something appear in the context to show that it applies to artificial persons. 1 Scam. R. 178. 4. Natural persons are divided into males, or men; and females or women. Men are capable of all kinds of engagements and functions, unless by reasons applying to particular individuals. Women cannot be appointed to any public office, nor perform any civil functions, except those which the law specially declares them capable of exercising. Civ. Code of Louis. art. 25. 5. They are also sometimes divided into free persons and slaves. Freemen are those who have preserved their natural liberty, that is to say, who have the right of doing what is not forbidden by the law. A slave is one who is in the power of a master to whom he belongs. Slaves are sometimes ranked not with persons but things. But sometimes they are considered as persons for example, a negro is in contemplation of law a person, so as to be capable of committing a riot in conjunction with white men. 1 Bay, 358. Vide Man. 6. Persons are also divided into citizens, (q. v.) and aliens, (q. v.) when viewed with regard to their political rights. When they are considered in relation to their civil rights, they are living or civilly dead; vide Civil Death; outlaws; and infamous persons. 7. Persons are divided into legitimates and bastards, when examined as to their rights by birth. 8. When viewed in their domestic relations, they are divided into parents and children; hushands and wives; guardians and wards; and masters and servants son, as it is understood in law, see 1 Toull. n. 168; 1 Bouv. Inst. n. 1890, note. nolu chan  posted on  2015-04-27   16:48:51 ET  Reply   Trace   Private Reply   #48. To: SOSO (#41) Stop playing games. You know quite well that you can't defend your answer as the Constitution does not define person at all. You did not ask for the Constitution's definition of person. [SOSO #28] As soon as you give me the Consitution's meaning of the word person. You asked for the meaning of the word person as used in the Constitution. The best we can do is to infer what the FF meant by the term in the context of specific usage, which opens the door wide to interpretation and assumptions. Mainly, it opens the door to the conclusion that you are clueless as to the difference between the Founding Fathers (FF) and the Framers. The Framers wrote the Constitution. Confounding the issue us that sometimes person is spelled with an upper case p and sometimes a lower case p. Some people are more easily confounded than others. You have not offered any meaning other than that which I provided. nolu chan  posted on  2015-04-27   16:56:46 ET  Reply   Trace   Private Reply   #49. To: SOSO (#41) It is long past time for you to answer questions. Ask away. I already did. #28. To: nolu chan (#25) The 14th Amendment is not exclusive and is only a partial declaration of who are citizens. Try again. As soon as you give me the Consitution's meaning of the word person. You can keep dancing all night and I will keep challenging to you to answer my question which you now ducked how many times? SOSO  posted on  2015-04-26   21:38:42 ET I'm still waiting for you to figure out your definition of citizen. The 14th Amendment which you blindly cut and pasted does not provide a definition of citizen any more than saying trout and guppies are fishes provides a definition of fishes. I gave specific examples of citizens that do not fit within what you claim to be a definition of citizen. At #32, "persons born overseas to U.S. parents become natural born U.S. citizens at birth. They are not born in the United States nor are they naturalized." Try to come up with a better definition that does not leave anyone out. nolu chan  posted on  2015-04-27   17:34:03 ET  Reply   Trace   Private Reply   #50. To: SOSO, tpaine (#1) SOSO #1: What does the phrase "or to the people" mean? tpaine #4: Obviously, to them, the people of the States held ALL the power within the State. SOSO #7: It could just as easily mean the people of the U.S.. tpaine #8: The people of the United States are also (obviously) the same 'people of the States'. SOSO #22: The first words of the U.S. Consitution are "We the People of the United States.... Tell me again about how the collective people of the U.S. never did anything. "the people" are the same as those in "We the people." It refers to the people of the States. Saying it refers to the consolidated mass of people as a nation requires willful bastardization of the Constitution. "The PEOPLE of the United states" are the first personages introduced. Who were those people? They were the citizens of thirteen states, each of which had a separate constitution and government, and all of which were connected together by Articles of Confederation. 2 Dal. 468 (1793) thirteen sovereignties were considered as emerged from the principles of the Revolution 2 Dal. 470 (1793) There is at least one strong undeniable fact against this incompatibility, and that is this -- any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. 2 Dal. 473 (1793) All the people of one state are the state. Albert T. Bledsoe, The War Between the States, 1915. [51] CHAPTER VII THE CONSTITUTION “A COMPACT BETWEEN” THE STATES— THE LANGUAGE OF THE CONSTITUTION The Preamble Quoted. “We the people of the United States, in order to form a more perfect union, . . . do ordain and establish this Constitution for the United States of America.” The first clause of this preamble to the Constitution, wholly detached from its history and from every other portion of the same instrument, as well as from all the contemporary and subsequent expositions of its authors, is made the very corner-stone of the Northern theory of the general government of the United States. That tremendous theory, or scheme of power, has been erected on this naked, isolated, and, as we expect to show, grossly misinterpreted clause. From the bare words of this clause it is concluded, both by Story and Webster, that the Constitution was established or ratified, not by a federal but by a national act; or, in other terms, that it was not ratified by the States, but by a power superior to the States, that is, by the sovereign will of “the whole people of the United States in the aggregate,” acting as one nation or political community. With Puritanical zeal they stick to “the very words of the Constitution,” while the meaning of the words is unheeded by them, either because it is unknown, or because it does not suit their purpose. But words are not the money, they are merely the counters, of wise men. The meaning of the Constitution is the Constitution. In arriving at the meaning of these words, of the very clause in question, I shall not do the least violence to any law of language, or to any rule of interpretation. I shall, on the contrary, show that we are not “obliged to depart from the words of the instrument,”1 as Mr. Justice Story alleges, in order to sustain our interpretation of any portion of it. I shall show that the Southern interpretation __________ 1 “Commentaries on the Constitution, book III, chap ii. [52] of the clause in question is, in reality, the only fair, legitimate, and reasonable sense of the preamble itself. Nor shall I, for this purpose, repeat the arguments which are usually employed by the friends of the South in this controversy. Those arguments are amply sufficient to refute the interpretation of Story and Webster. But they are so well put by others—by John Taylor, of Caroline; by Judge Upshur, of Virginia; by John C. Calhoun, of South Carolina; and especially by Mr. Spence, of Liverpool, that I need not repeat them here. Every one may find access to them in the admirable work of Mr. Spence.1 Hence, passing by those arguments, I shall, by an appeal to the records of the Convention of 1787, make my position good, and annihilate the great corner-stone of the Northern theory of the Constitution of the United States. The Preamble Discussed “We, the people of the United States.” The history of these words is curious and instructive. Only a portion of that history has, as yet, been laid before the public of England or of the United States. In the light of that history the great corner-stone in question will be found to crumble into dust and ashes; and the only wonder will be that considerations so clear and so conclusive should have been so long locked up, as a profound secret, in the records of the very Convention that formed the Constitution of the United States. It is well known that in the original draft of the Constitution its preamble, instead of saying, “We, the people of the United States,” specified each State by name, as the previous Articles of Confederation had done. If it had remained thus, then the States would have appeared, on the very face of the preamble itself, as the parties to the Constitution. But the preamble, as is well known, was afterwards changed by omitting to mention the States by name. There are, however, some most important facts __________ 1 We have only said admirable; but, all things considered, Mr. Spence’s work is truly a wonderful production. [53] connected with the change and the origin of the words in question, which seem to be wholly unknown on both sides of the Atlantic. They have, certainly, attracted no notice whatever from any of the writers on the great controversy between the North and the South. The first of these facts relates to the person by whom, and the manner in which, the change in question was effected; or, the words, “We, the people of the United States,” were substituted for an enumeration of the States by name. During all the great discussions of the Convention, the preamble to the Constitution retained its original form; nor was there, from the beginning to the end of their deliberations, a single whisper of dissatisfaction with it in that form. Every member of the Convention appeared perfectly satisfied that the States should stand, on the very front of the Constitution, as the parties to the compact into which they were about to enter. It was only after the provisions of the Constitution were agreed upon, and its language was referred to “a committee on style,” that the names of the States were silently omitted,” and the clause, “We, the people of the United States,” substituted in their place. Now, it will not be denied that if this change had not been made by the “committee on style,” then the States would have been the parties to the new Constitution just as they had been, to the old Articles of Confederation. Hence, if the interpretation of Story and Webster be the true one, then it must be admitted that the “committee on style,” appointed merely to express the views of the Convention, really transformed the nature of the Constitution of the United States! Then it must be admitted that the “committee on style,” by a single turn of its pen, changed the course of history and the meaning of its facts; causing the supreme power of the Federal Government to emanate, not from the States, but from the people of America as one political community! Did the “committee on style” do all this? And is it on legislation like this that a sovereign State is to be deemed guilty of treason and rebellion against the sublime authority of the people of America, and visited with the utmost vengeance? The [54] sublime authority of the people of America, the one grand nation, erected and established solely by the pen of the “committee on style !” This clause, “We, the people of the United States,” introduced by the “committee on style,” and passed over in perfect silence by the whole Convention, is the great stronghold, if it has one, of the Northern theory of the Constitution. The argument from these words appears in every speech, book, pamphlet, and discussion by every advocate of the North. It was wielded by Mr. Webster in his great debate with Mr. Calhoun, in 1833, and still more fully in his still more eloquent speech on Foot’s resolutions in 1830. “The Constitution itself,” says he, “in its very front, declares that it was ordained and established by the people of the United States in the aggregate.” The fact is not so. The Constitution neither declares that it was established by the people of the United States in the aggregate, nor by the people of the United States in the segregate. But if we look into the history of the transaction we shall find that it was established by them in the latter character, and not in the former. We shall find that each State acted separately, and for itself alone; and that no one pretended, or imagined, that the whole aggregate vote of any twelve States could bind the thirteenth State, without its own individual consent and ratification. In order to make out his interpretation, Mr. Webster interpolates the legislation of the “committee on style” with words of his own. How the Preamble Was Changed The change in the preamble to the Constitution was effected by the pen of Gouverneur Morris, one of the most zealous advocates in the Convention of 1787 for a strong national government. He certainly wished all power to emanate from the people of America, and to have them regarded as one great nation. But did he accomplish his wish? In the Convention, says the record, “Gouverneur Morris moved that the reference of the plan [i. e., of the Convention] be made to one General Convention, chosen [55] and authorized by the people to consider, amend, and establish the same.”1 This motion, if adopted, would indeed have caused the Constitution to be ratified by “the people of the United States in the aggregate,” or as one nation. This would, in fact, have made it a government emanating from the people of America in one General Convention assembled, and not from the States. But how was this motion received by the Convention? Was it approved and passed in the affirmative by that body? It did not even find a second in the Convention of 1787. So says the record,1 and this is a most significant fact. So completely was such a mode of ratification deemed out of the question that it found not the symptom or shadow of support from the authors of the Constitution of the United States. Now was the very object, which Gouverneur Morris so signally failed to accomplish directly and openly by his motion, indirectly and covertly effected by his style? And if so, did he design to effect such a change in the fundamental law of the United States of America? It is certain that precisely the same effect is given to his words, to his style, as would have resulted from the passage of his motion by the Convention. Did Gouverneur Morris then intend that his words should have such force and effect? In supposing him capable of such a fraud on the Convention of 1787, I certainly do him no injustice, since we have his own confession that he actually perpetrated several such frauds on that assembly of Constitution-makers. “That instrument,” says he, in reference to the Constitution, “was written by the fingers which write this letter. Having rejected redundant terms, I believed it to be as clear as language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject conflicting opinions had been maintained with so much professional astuteness that it became necessary to select phrases which, expressing my own notions, would not alarm others, nor shock their self-love; and to the best of my recollection this was the only part which passed without cavil.”2 How adroitly, then, how cunningly, he __________ 1 “The Madison Papers,” p. 1184. 2 “Life and Writings of Gouverneur Morris,” Vol. iii, p. 323. [56] cheats the Convention into the unconscious sanction of his “own notions”; and this great legislator of the North even in the purer days of the infant republic, was proud of the fraud! Nor is this the only instance in which, according to his own confession and boast, Gouverneur Morris tricked the Convention into the adoption of his own private views. “I always thought,” says he, in another letter, “that when we should acquire Canada and Louisiana, it would be proper to govern them as provinces, and allow them no voice in our councils. In wording the third section of the fourth article I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief that, had it been more pointedly expressed, a strong opposition would have been made.”1 Thus, as the penman of the “committee on style,” he abused his high position, not only to mould the judiciary system of the United States to suit his “own notions,” but also to determine the fate of two vast empires! Is not such legislation truly wonderful? Instead of weighing every word with the utmost care, and then depositing it in the Constitution as under the solemn sanction of an oath, the Convention trusts the style of the instrument to a fine writer, who cunningly gives expression to his own views in opposition to those of the assembly! “In a play, or a moral,” says Jeremy Bentham, “an improper word is but a word; and the impropriety, whether noted or not, is attended with no consequences. In a body of laws—especially of laws given as Constitutional ones—an improper word would be a national calamity and civil war may be the consequences of it. Out of one foolish word may start a thousand daggers.” How true, and how fearfully has this truth been illustrated by the history of the United States! But although Gouverneur Morris was capable of such a fraud on the Convention, we have no good reason to believe he intended one by the substitution of the words, “We, the people of the United States,” for the enumeration of all the States by name. He has nowhere confessed to any such thing; and, besides, he did not understand his own words as they are so confidently understood by Story and __________ 1 “Life and Writings of Governeur Morris,” vol iii, p. 193. [57] Webster. Every rational inquirer after truth should, it seems to me, be curious to know what sense Gouverneur Morris attached to the words in question, since it was by his pen that they were introduced into the preamble of the Constitution. Nor will such curiosity be diminished, but rather increased, by the fact that he did, in some cases, aim to foist his own private views into the Constitution of his country. How, then, did Gouverneur Morris understand the words, “We, the people of the United States?” Did he infer from these words that the Constitution was not a compact between States, or that it was established by the people of America, and not by the States? I answer this question in the words of Gouverneur Morris himself. “The Constitution,” says he, “was a compact, not between individuals, but between political societies, the people, not of America, but of the United States, each enjoying sovereign power and of course equal rights.”1 Language could not possibly be more explicit. Nor could it be more evident than it is that Gouverneur Morris, the very author of the words in question, entertained precisely the same view of their meaning as that maintained by Mr. Calhoun and his school. This point was, indeed, made far too clear by the proceedings of the Convention of 1787 for any member of that body to entertain the shadow of a doubt in relation to it. Nor can any one read these proceedings, as they deserve to be read, without agreeing with Gouverneur Morris that the authors of the Constitution designed it to be ratified, as in fact it was, by “the people of the United States,” not as individuals, but as “political societies, each enjoying sovereign power, and of course equal rights.” Or, in other words, without seeing that “the Constitution was a compact,” not between individuals, “but between political societies,” between sovereign States. This, in the next chapter, I hope and expect to make perfectly clear, by bringing to view the origin of the words, “We, the people,” and by showing the sense in which they were universally understood and used by the member of the Convention of 1787 in the very act of framing the Constitution of the United States. __________ 1 “Life and Writings,” vol iii, p. 193. [58] CHAPTER VIII THE CONSTITUTION OF 1787 A COMPACT BETWEEN THE STATES—THE LANGUAGE OF THE CONSTITUTION (Continued) FURTHER DISCUSSION OF THE CHANGE IN THE PREAMBLE The Convention of 1787 did, as we have seen, refnse to call the government a national one, and gave it the name of “the government of the “United States.” Did they then make it a national one by enacting that it should be ordained by “the whole people of the United States in the aggregate” as one political society? Again, when it was proposed in the Convention to ordain the Constitution by “the people of the United States in the aggregate,” in one General Convention assembled, the motion failed, as we have seen, to secure a second. Did Gouverneur Morris, then, the author of that proposal, achieve by his style what he failed to accomplish by his motion? If so, what should we think of the incompetency of the Convention? Nor was this all. For Madison introduced a motion which required “a concurrence of a majority of both the States and the people”1 at large to establish the Constitution; and this proposition was rejected by the Convention. All these motions, designed to connect the new government with a national origin, were lost, and the decree went forth that the Constitution should be established by the accession of nine States, each acting for itself alone, and to be bound only by its own voluntary act. Now, the question is, was all this action of the Convention overruled and defeated by the committee on style, or rather by its penman, Gouverneur Morris? If he formed such design, then it must be admitted that the Northern theory of the Constitution was conceived in fraud and brought forth in iniquity; and every honest man at the North ought to be ashamed both of its origin and its existence. __________ 1“The Madison Papers,” p. 1470. [59] But, as we have already seen, Gouverneur Morris did not understand his own words, “We, the people,” as they are understood by the more modern expounders of the Constitution at the North. Hence we have no reason to believe that he intended, in this case at least, a fraud on the design and will of the Convention. Was the whole thing done then, and the nature of the Constitution transformed, by a slip of the pen, or by accident? After all their opposition both to the name and to the thing, did the Convention, by sheer oversight, blunder into the construction of a purely national government, by permitting it to be established by the people of America as one grand political community? If Mr. Justice Story’s view of the words, “We, the people of the United States,” be correct, how did it happen that the opponents of such a mode of ratification said absolutely nothing? The whole instrument, as amended by the committee on style, was read in the hearing of the Convention, beginning with the preamble, and yet the words, “We, the people of the United States,” now deemed so formidable to the advocates of State sovereignty, did not raise a single whisper of opposition. How could this have happened if the words in question were supposed to mean the people of America, or the whole people of the United States as one political society? Were Mason, and Martin, and Paterson, and Ellsworth all too dull to perceive that meaning, which is so perfectly obvious to Mr. Justice Story, and which he imagines that nothing but the most purblind obstinacy can resist? Were all the friends of the States, as independent sovereignties, asleep on their posts while Gouverneur Morris thus transformed the nature of the Constitution, without knowing it himself, by causing it to emanate, not from the States, but from the people of America as one nation? No. Not one of these suppositions is the true one. The whole mystery is explained in the proceedings of the Convention of 1787, as exhibited in “The Madison Papers”; an explanation which, however, has hitherto been most unaccountably overlooked. We may there find the real meaning of the words in question, and see why they gave no alarm to the advocates of State sovereignty. [60] THE MODE OF RATIFICATION OF THE CONSTITUTION If we cast our eyes all along the subject of “the mode of ratification,” ranging from page 735 to page 1632 of “The Madison Papers,” we shall perceive that the question, whether the Constitution should be ratified by the people of “the United States in the aggregate,” or by the several States, was not considered by the Convention at all. No such question was before the Convention. It was neither mooted nor considered by them. The error of Story and Webster is, that they construe the first clause of the Constitution as if it referred to one question; whereas, in fact, it referred to quite another and a far different question—that is, they construed this clause in profound darkness as to the origin of its words, as well as to their use and application in the Convention of 1787. If they had understood them as actually and uniformly used or applied by the framers of the Constitution, then they could neither have deceived themselves nor the people of the North. If, indeed, they had been members of that Convention, or had only examined its proceedings, they would have seen why the staunch advocates of State sovereignty raised not even the slightest whisper of opposition to the words, “We, the people.” Or, if Patrick Henry had been a member of that assembly, then he could not have exclaimed, as he did, “Why say ‘We, the people,’ and not We, the States?”—an exclamation so often quoted by Story, Webster, and the whole Northern school of politicians as a conclusive authority—for then he would have seen that “We, the people,” in the language of the framers of the Constitution, meant precisely the same thing as “We, the States,” and neither more nor less. The question before the Convention was, whether the Constitution should be ratified by the legislatures or by the sovereign peoples of the several States. No one doubted that it was to be ratified by the States. This, as we shall see, was on all hands regarded as a settled point. The only question was, whether it “should be ratified by the States, acting through their legislatures, or through [61] Conventions elected to represent the people for that special purpose. In the discussion of this question, most of the members insisted that the Constitution should be ratified by the people, by the States in their sovereign capacity, or by their Conventions. These several modes of expression were, in the vocabulary of the Convention, used as convertible terms, as perfectly synonymous with each other. Hence the phrase, “the people of the United States,” as used and understood by them, meant the people of the several States as contradistinguished from their legislatures, and not the people of America as contradistinguished from the distinct and separate sovereign peoples of the different States. This application of the words is the invention of theorists merely. It was unknown to the Convention of 1787, and has had no existence except in the imaginations of those by whom their labors have been systematically misconstrued and perverted from their original design. Some few members of the Convention were in favor of leaving “the States to choose their own mode of ratification”; but the great majority of them insisted that the Constitution should be referred to the States for ratification, either through their legislatures or through their people in Conventions assembled. It was in regard to these two methods that the Convention was divided. All agreed that it should be done by “the States,” and the only question was as to how “the States” should do it. The idea that it was designed to be done, or that it was done, by the people of America as one nation, is the dream of a later day, and, as we shall see, is nothing but a dream. Some insisted that it should be ratified by the States in their corporate capacity—this is, by their legislatures; and others that it should be ratified by the States in their sovereign political capacity—that is, by their Conventions assembled for that express purpose. Or, in other words, some contended that it ought to be ratified by their general agents, the legislatures; and others that it ought to be ratified by their special agents, the Conventions elected and assembled to perform that high act of sovereign [62] power. In both cases, it was to be ratified by the States, but the opposite parties preferred different modes of ratification by them. THE DEBATE ON RATIFICATION In debating this question, as to the mode of ratification by the States (the only one before the Convention), some of the most inflexible advocates of State sovereignty insisted that it should be ratified by “the people of the United States.” But then they understood this language, and every member of the Convention understood it to mean the peoples of the several States, as distinguished from their legislatures. If, for one moment, they had imagined that their language could have been construed to mean a ratification of the Constitution by the collective will of the whole people of America, they would have shrunk from its use with horror! for they dreaded nothing more than the idea of such an immense consolidated democracy. On the contrary, they clung to the States, and to their rights, as the only sheet-anchor of safety against the overwhelming and all-devouring floods of such a national union of mere numbers or individuals. George Mason, no less than Patrick Henry, would have exclaimed against the words, “We, the people,” if, as a member of the Convention of 1787, he had not learned that they only meant “We, the States.” In discussing the question as to the mode of ratification by “the States,” Mr. Mason said “he considered a reference of the plan to the authority of the people as one of the most important and essential of the resolutions. The legislatures have no power to ratify it. . . . Another strong reason, said he, was that admitting the legislatures to have a competent authority it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors.”1 This argument was repeatedly urged by other members, and it was insisted that if the Constitution should be ratified by the legislatures of the States, instead __________ 1 “Madison Papers,” p. 1177. [63] of by the people of the States, it would rest upon a weak and tottering foundation, since the legislatures which had established might claim the power to repeal. In like manner Mr. Madison said, “For these reasons, as well as for others, he thought it indispensable that the new Constitution should be ratified in the unexceptionable form, and by the supreme authority of the people themselves1—that is, as the context shows, by the supreme authority of the people of the several States in opposition to their “legislative sanction only.” Not one word was ever said during the whole of the debate about referring the Constitution to the people of the whole country in the aggregate for ratification. This idea had not then risen above the horizon of the political world, though it afterwards became the great political sun of the Northern section of the Union. Those who advocated the mode of ratification by the people, or by the Conventions of the States elected for that purpose, prevailed over those who urged the ratification by the legislatures. The majority favored the mode of ratification by the people or the Conventions. Accordingly, when the committee of detail reported a draft of the Constitution, we find these words: “Article XXI. The ratifications of the Conventions of —— States shall be sufficient for the organization of this Constitution.”2 Thus it came to be perfectly understood that it should be ratified by the Conventions or the peoples of the several States, and not by their legislatures. But here the question arose, if the blank for the number of States should be filled with “seven,” “eight,” or “nine.” The Constitution, as it stood, might, in the opinion of Mr. Madison, be put in force over “the whole body of the people, though less than a majority of them should ratify it.” But, in the opinion of Mr. Wilson, “As the Constitution stands, the States only which ratify can be bound.”3 In order to remove this difficulty, and settle the question, Mr. King moved to add, at the end of Article XXI, the words “between the said States, so as to confine the opera- __________ 1 “Madison Papers,” p. 796 2 “Ibid., p. 1241 3 Ibid., p. 1469 [64] tion of the government to the States ratifying the same.”1 Thus it was Rufus King, at first one of the most strenuous advocates in the Convention of 1787 for a strong national government, who introduced the words by which the Constitution was made binding “between the States so ratifying the same.” These words proved acceptable to Madison and Wilson, though both were among the most zealous advocates of a strong general government in the Convention of 1787, and they became a part of the new Constitution. Thus it was universally understood by the Convention, and so expressed, that the new Constitution was to be established “by the ratification of the Conventions of —— States,” and to be binding only “between the States so ratifying the same.” During all this time the name of each State still retained its place in the preamble to the Constitution, in which the committee of detail made no change; and if the party, with Gerry and Hamilton at their head, who wished to fill the blank with the whole thirteen States, had prevailed, we have no reason to believe that any alteration would in this respect have been made in the preamble to the Constitution. But when, after debate, the blank was filled with “nine,” it became impossible to specify the States between whom the new Constitution might be established or the new government organized. Hence it became proper, if not necessary, to drop the specification of the States by name—a change which, as we have seen, was first introduced by the committee on style, and read to the Convention without raising the slightest objection or murmur. We are now prepared to see, as in the clear light of noonday, why the words, “We, the people of the United States,” which have since made so much noise in the political world, did not make any whatever in the Convention of 1787. Why should George Mason, or any other adherent of State sovereignty, object to the words introduced by the committee on style? They merely expressed the very thing for which he had contended, and which had been fully expressed in the seventh Article of the new __________ 1 “Madison Papers,” p. 1470. [65] Constitution. For when it was determined that the Constitution should be ratified by “the Conventions of the States,” and not by the legislatures, this was exactly equivalent, in the uniform language of the Convention of 1787, to saying that it shall be ratified by “the people of the States.” Hence, the most ardent friend of State rights, or State sovereignty, saw no reason why he should object to the words, “We, the people of the United States,” because he knew they were only intended to express the mode of ratification by the States for which he had contended—that is, by the States in their sovereign capacity, as so many political societies or peoples, as distinguished from their legislatures. nolu chan  posted on  2015-04-27   17:55:34 ET  Reply   Trace   Private Reply   #51. To: nolu chan (#49) Birther stuff again? Where is that dentist/attorney/real estate broker/Martial arts expert Orly Taint when you need her? PS: I don't get when last we spoke you went ballistic over Ted Cruz when I called him a grifter. Pericles  posted on  2015-04-27   18:16:02 ET  Reply   Trace   Private Reply   #52. To: nolu chan, tpaine (#49) I gave specific examples of citizens that do not fit within what you claim to be a definition of citizen. At #32, "persons born overseas to U.S. parents become natural born U.S. citizens at birth. They are not born in the United States nor are they naturalized." Post the specific citing in the Constitution that says this. We know from the exact words in the Consitution that someone born in a state is a citizen of that state. That is the only thing we know which comes directly from the words in the Constitution about who or what is a citizen. What the courts have subsequently ruled as to who may be a citizen comes from interpretation of the Constitution through testing it. All of your references are secondhand opinions or rulings of what the Consitution means and as such can readily change over time. The Consitution itself says nothing about who or what a person is. Any such court determination (which now deems a corporation to be a person) likewise are secondhand opinions or rulings of what the Consitution means and as such can readily change over time. "the people" are the same as those in "We the people." It refers to the people of the States. Saying it refers to the consolidated mass of people as a nation requires willful bastardization of the Constitution." I will grant that this MAY be one interpretation but a highly bastardize one. The words clearly refer to the collective people of the U.S. "All the people of one state are the state." Really? What happens when a citizen of one state moves to another. Of which state are they citizen (NB - Unless they renounce it they are ALWAYS a citizen of the U.S.). They can only vote (NB - a Constitutional right on a national/collective basis) in one state. In which state MUST they vote? потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   19:36:14 ET  Reply   Trace   Private Reply   #53. To: Pericles (#51) Birther stuff again? No, constitutional stuff. Do you have any substantive issue with it? nolu chan  posted on  2015-04-27   21:48:08 ET  Reply   Trace   Private Reply   #54. To: SOSO, tpaine (#52) "the people" are the same as those in "We the people." It refers to the people of the States. Saying it refers to the consolidated mass of people as a nation requires willful bastardization of the Constitution." I will grant that this MAY be one interpretation but a highly bastardize one. The words clearly refer to the collective people of the U.S. You have some dissent from the U.S. Supreme Court: "The PEOPLE of the United states" are the first personages introduced. Who were those people? They were the citizens of thirteen states, each of which had a separate constitution and government, and all of which were connected together by Articles of Confederation. 2 Dal. 463 (1794) There is at least one strong undeniable fact against this incompatibility, and that is this -- any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. 2 Dal. 473 (1794) And, of course, the records of the Constitutional Convention document that you are full of crap. FARRAND’s RECORDS and the Preamble, We the People nolu chan  posted on  2015-04-27   21:58:39 ET  Reply   Trace   Private Reply   #55. To: nolu chan (#54) "The PEOPLE of the United states" are the first personages introduced. Who were those people? They were the citizens of thirteen states, each of which had a separate constitution and government, and all of which were connected together by Articles of Confederation. Yes, collecively called the U.S. It doesn't mean jack sh*t if a person moved from one state to another, that person is still a citizen of the U.S. It doesn't mean jack sh*t that each state has its separate constitution and government. The overarching principle is that they are all part of the U.S., collectively. Over a lifetime a person could live in all 50 states, his status as a citizen of the U.S. or more accurately of We The People, does not change one iota. So sayeth SCOTUS. I will abide by that. You? потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   22:12:36 ET  Reply   Trace   Private Reply   #56. To: nolu chan (#54) There is at least one strong undeniable fact against this incompatibility, and that is this -- any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. So what? That doesn't support your psotion at all. People within each state can also sue each other. BFD. потому что Бог хочет это тот путь SOSO  posted on  2015-04-27   22:14:23 ET  Reply   Trace   Private Reply   #57. To: SOSO, tpaine (#15) I gave specific examples of citizens that do not fit within what you claim to be a definition of citizen. At #32, "persons born overseas to U.S. parents become natural born U.S. citizens at birth. They are not born in the United States nor are they naturalized." Post the specific citing in the Constitution that says this. Your question is just bullshit. John McCain was born outside the United States and was not naturalized, and ran for President. He is a Senator and a citizen. Ted Cruz was born in Canada and is a Senator and a citizen through birth to a U.S. citizen parent. You are the one who said at #15, "I certainly can tell you what the Consitution means by the word citizen." Actually, you have proven that you cannot accurately explain who are citizens. You suffer from the delusion that the 14th Amendment contains an exclusive definition of citizenship. It doesn't and never has. People born overseas, outside the territory or jurisdiction of the United States, are natural born U.S. citizens if a parent is a citizen. You are so legally incompetent that you cannot identify the part of the Constitution that applies, or why it applies. nolu chan  posted on  2015-04-27   22:27:58 ET  Reply   Trace   Private Reply         .       .       . Comments (58 - 72) not displayed. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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