[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

"Analysis: The Final State of the Presidential Race"

He’ll, You Pieces of Garbage

The Future of Warfare -- No more martyrdom!

"Kamala’s Inane Talking Points"

"The Harris Campaign Is Testament to the Toxicity of Woke Politics"

Easy Drywall Patch

Israel Preparing NEW Iran Strike? Iran Vows “Unimaginable” Response | Watchman Newscast

In Logansport, Indiana, Kids are Being Pushed Out of Schools After Migrants Swelled County’s Population by 30%: "Everybody else is falling behind"

Exclusive — Bernie Moreno: We Spend $110,000 Per Illegal Migrant Per Year, More than Twice What ‘the Average American Makes’

Florida County: 41 of 45 People Arrested for Looting after Hurricanes Helene and Milton are Noncitizens

Presidential race: Is a Split Ticket the only Answer?

hurricanes and heat waves are Worse

'Backbone of Iran's missile industry' destroyed by IAF strikes on Islamic Republic

Joe Rogan Experience #2219 - Donald Trump

IDF raids Hezbollah Radwan Forces underground bases, discovers massive cache of weapons

Gallant: ‘After we strike in Iran,’ the world will understand all of our training

The Atlantic Hit Piece On Trump Is A Psy-Op To Justify Post-Election Violence If Harris Loses

Six Al Jazeera journalists are Hamas, PIJ terrorists

Judge Aileen Cannon, who tossed Trump's classified docs case, on list of proposed candidates for attorney general

Iran's Assassination Program in Europe: Europe Goes Back to Sleep

Susan Olsen says Brady Bunch revival was cancelled because she’s MAGA.

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 Compact Theory Is Vital to Restoring the Constitution
Source: [None]
URL Source: [None]
Published: Sep 2, 2015
Author: Tim Dunkin
Post Date: 2015-09-02 18:57:29 by tpaine
Keywords: None
Views: 903
Comments: 15

canadafreepress.com

Restoring the Compact Theory Is Vital to Restoring the Constitution

Author By Tim Dunkin -- Bio and Archives September 2, 2015

When he authored the Kentucky Resolution of 1798, Thomas Jefferson based his arguments for nullification, in part, upon the compact theory of the relationship between the states and the Federal Government. According to this original understanding of the State-Federal relationship, the Constitution under which the Republic was to operate was the creation of the several states, and thus the Federal government was also the creation of these states.

Jefferson used this understanding to argue that when the Federal government violates the Constitution, the states themselves have the power, as ascendants to the compact of the states, to judge these violations on their own cognizance. The Resolution, along with its sister resolution from Virginia authored by James Madison, were intended as a call to action aimed at the legislatures of the other 14 states, urging them to join Virginia and Kentucky in declaring the recently passed Alien and Sedition Acts as null and void.

Unfortunately, this call to action failed completely. Several of the other states simply ignored these resolutions, while others specifically rebutted it, arguing that only the federal judiciary had the right to rule on the constitutionality of a federal action. Included in these rebuttals was a rejection of the compact theory, and its replacement with the theory of direct incorporation – the belief that the Constitution was incorporated directly by the people of the United States, and therefore was not a creation of the states, but was instead a muzzle on the states put in place by the people themselves.

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble. This view gradually caught on in the early Republic. Daniel Webster also rejected the compact theory, instead asserting the Constitution to have been directly formed by the people of the United States as a body. Joseph Story, in his Commentaries on the Constitution of the United States, concurred. The Supreme Court (naturally) affirmed this view in several subsequent rulings (Martin v. Hunter’s Lessee [1816], McCulloch v. Maryland [1819]), using the same reasoning as Jay used in the 1793 case.

Special: New Probiotic Fat Burner Takes GNC by Storm The compact theory was often relied upon by Southern states to justify both nullification and then secession up until the Civil War. After that war, of course, the theory was completely expunged from the American political lexicon by the victors.

Two general arguments were consistently used by proponents of the direct incorporation theory to attempt to discredit the compact theory. These were:

1) The Preamble of the Constitution declares that, “We the people of the United States, in order to form a more perfect union…” As a result, the Constitution was clearly intended from the very beginning to be a direct creation of the body of people in the nation themselves. As a result, the states have no prior claim, via the compact theory, to sit in judgment upon unconstitutional federal acts – only the people themselves, through the federal government, may do so.

2) As a consequence of the first argument, the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.

Special: Having One of These Credit Cards Means You Have Excellent Credit Before I address these two arguments specifically, I’d first like to make some general observations about the political climate in the United States in 1798. No republic is perfect, and even the best intended will sooner rather than later fall into the clutches of the partisan spirit. America was no different. The Alien and Sedition Acts were the creatures of the Federalists who controlled the national legislature at this time, and were approved by President John Adams, also a Federalist. In many ways, these acts were intended to target the Federalists’ political opponents, the Democratic Republicans (the party of, among others, Jefferson and Madison). The Alien acts were designed to target for deportation foreign nationals, especially Frenchmen, who were allies of the Democratic Republicans (many DRs tended to support the Revolutionaries in the French Revolution, while the Federalists opposed them, and indeed were keen on any pretext for a war with France). The Sedition acts, as their subsequent employment showed, were put into place so as to allow the government to silence Democratic Republican opposition in the press.

At this time, the majority of the state legislatures were in the hands of the Federalists as well, especially those northern states such as Vermont and New Hampshire which were most vigorous in their opposition to the Kentucky and Virginia Resolutions. Chief Justice John Jay, whose opinion in Chisholm v. Georgia these states relied upon for support for the incorporation theory, was also a Federalist. The point to all of this is that incorporationist opposition to the assertion of the compact theory and nullification by Jefferson and Madison was not based on high-minded statesmanlike reverence for the Constitution. Rather, it was based on naked partisanship by Federalists who were supporting their Party and President and who were, thus, rejecting arguments using the compact theory because they originated with political enemies.

Now, to address the incorporationist arguments. First, was the Constitution a creation of the citizens of the United States as a mass, or was it a creation of the people of the states, through their states?

The answer to this question, contrary to the assertions of many in our history, is the latter. This can be seen clearly enough in the statements of ratification of the Constitution found in all 13 of the original states. For instance, in Virginia’s statement of ratification declares,

Special: Two Steps to Tightening Skin and Removing Eye Bags Overnight “We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…”

New Hampshire’s ratification statement, likewise, contains this injunction to their representatives concerning proposed changes to the document in question,

“In Convention of the Delegates of the People of the State of New-Hampshire June the Twenty first 1788…And the Convention do in the Name & behalf of the People of this State enjoin it upon their Representatives in Congress…”

In a similar vein, Massachusetts’ statement said,

“In Convention of the delegates of the People of the Commonwealth of Massachusetts February 6th 1788…And the Convention do in the name & in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress…”

New Jersey’s statement explicitly notes that the convention of the people in their state, meeting for the purpose of ratifying the Constitution, was authorized to do so by the state’s legislature,

“And Whereas the Legislature of this State did also on the first day of November last make and pass the following Act, Vizt- “An Act to authorize the People of this State to meet in Convention, deliberate upon, agree to, and ratify the Constitution of the United States, proposed by the late General Convention…”

And so on. Each and every state ratification convention asserted that the delegates who were meeting to ratify the new Constitution did so on behalf of the people of their states. Each one asserted that all power originated from the people…but also asserted that this power was being exercised by the people of their several states through the conventions of their states. The states, as bodies formed from their separate populations and existing prior to the Constitution, were the parties to the Constitution – not the body of citizens of the United States as a whole. This truth is further affirmed within the text of the Constitution itself. Article VII says,

“The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”

Clearly, this depicted the ratification of the new Constitution as an agreement between the several states acceding to it. As such, the relevant context from the time, both within and without the Constitution, points to the preamblatory comments that say…

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

…as meaning that the “we the people” were acting through their separate states. When “the people” formed the Union, it was not as an aggregate mass of individual people spanning from the northern tip of Maine to the southern border of Georgia. Rather, it was as political bodies, acting through their particular states, which were the parties to the Constitution.

That this view was the original intention is affirmed by Madison in Federalist #39,

“On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other hand, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State – the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.

“That it will be a federal and not a national act, as those terms are understood by the objectors – the act of the people, as forming so many independent States, not as forming one aggregate nation – is obvious from this single consideration: that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.”

In these two paragraphs, we witness the utter and complete destruction of the incorporationist argument as it is drawn from the Preamble. Quite obviously, the intention of the men writing the new Constitution, and one of the arguments they used to convince their contemporaries to ratify it, was that the States would be treated as sovereign powers acceding to the Constitution as separate entities. The later arguments, based as they were on partisan misinterpretations which were then carried through, cannot rightly be given serious weight.

Now for the second argument, which is that the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.

We should note that the first part of this argument, at least, is something of a straw man. Nobody has argued, or argues today, that the Constitution is not the supreme law of the land. But we should also note that the latter assertion in the incorporationist argument does not follow from the former. The Constitution itself, as well as the arguments used to garner support for it for ratification, clearly show that the states yielded up only as much of their full, sovereign, plenipotentiary powers as they had voluntarily acceded to yield when they ratified the Constitution - and no more. The 10th amendment makes this clear, and the Supremacy Clause in Article VI, far from denying power to the states, actually affirms the vast bulk of their powers that were not specifically ceded to the federal government – the federal government could only overrule the states on those things which were specifically granted to it “in pursuance” of the division of powers framed into this document. Everything else was beyond federal reach.

As such, the supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.

The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches). Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary. Now, judicial review can be understood as an implied power of the federal courts – it makes sense that the judicial branch of the federal government would have the right to pass judgment on acts of the other two. However, because this same power was never once explicitly given only to the federal bench, nor denied to the states, it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary.

As those who established, ratified, and ordained the Constitution, the states (representing their separate peoples) certainly do have the right to stand in judgment of federal actions. The incorporationist theory of federalism is completely contrary to the explicit statements and intentions of those Founders who were most responsible for drafting the Constitution. The compact theory, on the other hand, was explicitly affirmed by them, and thus finds much greater support from the origination of our system of government than does the notion that the federal government is a creature of the people en masse, and that the states are subordinate and “unlimited in their submission” to the federal government.

The incorporationist doctrine should be rejected. The simple fact of its long use lends it no credibility – a bad idea is still bad, even if it has the weight of long usage behind it. If constitutionalists want to get back to the Constitution as it was really meant to be, then we must swing the pendulum back towards an affirmation of states’ rights under the compact theory.

Notice anything wrong? Send Silk feedback

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

Begin Trace Mode for Comment # 12.

#8. To: tpaine (#0)

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble.

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

https://en.wikipedia.org/wiki/Chisholm_v._Georgia

Chisholm v. Georgia, 2 U.S. 419 (1793), is considered the first United States Supreme Court case of significance and impact. Given its date, there was little available legal precedent (particularly in American law). It was almost immediately superseded by the Eleventh Amendment.

http://www.georgiaencyclopedia.org/articles/government-politics/chisholm-v-georgia-1793

In the wake of this decision, however, howls of protest rose throughout the country. Within five years, U.S. Congress had proposed and the states had ratified the Eleventh Amendment, which overturned the principle of the Chisholm decision by providing that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State."

To this day, Chisholm stands as one of only a handful of Supreme Court rulings that have been overturned by constitutional amendment. Even more important, the Supreme Court has built on the repudiation of Chisholm to hold that the Eleventh Amendment exemplifies a sovereign-immunity principle that sweeps well beyond the amendment's text. Invoking this principle, the court has sheltered states from almost all money-damage actions brought in any court, even when initiated by a state's own residents based on clear violations of federal statutory law.

https://www.law.cornell.edu/constitution/amendmentxi

Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

nolu chan  posted on  2015-09-03   13:49:12 ET  Reply   Untrace   Trace   Private Reply  


#9. To: nolu chan (#8)

You claim that : ---

The direct incorporation theory --- "was squashed over two centuries ago by the 11th Amendment."

Your last post, and the wording of the 11th, does not prove that opinion.

Can you explain?

tpaine  posted on  2015-09-03   14:51:00 ET  Reply   Untrace   Trace   Private Reply  


#12. To: nolu chan, Y'ALL (#9)

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble. - from the article....

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

Just above you claim that : ---

(Speaking about the direct incorporation theory) --- "It was squashed over two centuries ago by the 11th Amendment."

Your last post, and the wording of the 11th, does not prove that opinion.

Can you explain? - Granted, --- Christhom was squashed, -- but the theory was not, and once again you attempt to bury that fact with legal quotes that do NOT prove your point.

tpaine  posted on  2015-09-04   14:56:24 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 12.

#13. To: tpaine (#12)

Just above you claim that : ---

(Speaking about the direct incorporation theory) --- "It was squashed over two centuries ago by the 11th Amendment."

A bullshit bastardized quote repeated does not get more impressive by bullshit repetition.

My #8 did not say that bullshit.

#8. To: tpaine (#0)

The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble.

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

https://en.wikipedia.org/wiki/Chisholm_v._Georgia

Chisholm v. Georgia, 2 U.S. 419 (1793), is considered the first United States Supreme Court case of significance and impact. Given its date, there was little available legal precedent (particularly in American law). It was almost immediately superseded by the Eleventh Amendment.

http://www.georgiaencyclopedia.org/articles/government-politics/chisholm-v-georgia-1793

In the wake of this decision, however, howls of protest rose throughout the country. Within five years, U.S. Congress had proposed and the states had ratified the Eleventh Amendment, which overturned the principle of the Chisholm decision by providing that "the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State."

To this day, Chisholm stands as one of only a handful of Supreme Court rulings that have been overturned by constitutional amendment. Even more important, the Supreme Court has built on the repudiation of Chisholm to hold that the Eleventh Amendment exemplifies a sovereign-immunity principle that sweeps well beyond the amendment's text. Invoking this principle, the court has sheltered states from almost all money-damage actions brought in any court, even when initiated by a state's own residents based on clear violations of federal statutory law.

https://www.law.cornell.edu/constitution/amendmentxi

Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

nolu chan  posted on  2015-09-03   13:49:12 ET

As was made very abundantly clear by my #11

#11. To: tpaine (#9)

You claim that : ---

The direct incorporation theory --- "was squashed over two centuries ago by the 11th Amendment."

What you meant to quote:

Chisholm was short lived and the author "forgot" to mention why. It was squashed over two centuries ago by the 11th Amendment.

Your bullshit "quotes" are not impressive. Chisholm was reversed by the 11th Amendment and jurisdiction of the Court over Chisholm and all such pending cases was taken removed by Hollingsworth v. Virginia.

The Court, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

American Constitutional Law, 10th Ed., Vol 1, 2013, p. 388. by Louis Fisher and Katy J. Harriger.

Louis Fisher worked at the Library of Congress as Senior Specialist in Separation of Powers and later as Senior Specialist in Constitutional Law.

Two months before the first Congress met, James Madison supported constitutional amendments to provide "for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c." 5 The Writings of James Madison 320 (letter to George Eve, January 2, 1789). The responsibility for moving these amendments through the House of Representatives fell to Madison, who argued that a Bill of Rights would remove apprehensions that the people felt toward the new national government. 1 Annals of Congress 431-33 (1789). He also wanted to place restrictions on the states and proposed that cc[n]o State shall violate the equal rights of conscience, of the freedom of the press, or the trial by jury in criminal cases." Id. at 435. The states "are as liable to attack these invaluable privileges as the General Government... Id. at 441. As finally drafted and ratified, however, the first ten amendments to the Constitution— the Bill of Rights—limited only the federal government.

In 1833, the Supreme Court reaffirmed that the Bill of Rights restrained only the federal government, not the states. At issue was the Just Compensation Clause of the Fifth Amendment. Barron v. Baltimore, 32 U.S. (7 Pet.) 243. The same conclusion was reached by the Court 25 years later. Withers v. Buckley, 20 How. (61 U.S.) 84, 89-90 (1858). However, the Civil War and passage of the Fourteenth Amendment in 1868 worked a fundamental change in federal-state relations.

A Practical Companion to the Constitution, p. 244, by Jethro K. Lieberman, emphasis as in original

In 1892 the first Justice John M. Harlan insisted that the Fourteenth Amendment prohibits the states from denying orr abridging any "of the fundamental rights of life, liberty or property, recognized and guaranteed by the Constitution of the United States. In other words, the Fourteenth Amendment incorporates every provision in the Bill of rights. Harlan's was a minority voice. But in 1897 the Court for the first time declared that a stateviolates due process when it takes property without paying just compensation.

American Constitutional Law, 5th Ed., 2012, p. 28, by Otis S. Stephens and John M. Scheb II, emphasis as in original.

The Court has, however, endorsed a doctrine of selective incorporation by whichy most of the provision of the Bill of Rights have been extended to limit actions of the state and local governments. The process of selective incorporation began in 1897 in the case of Chicago, Burlington & Quincy Railroad Company v. Chicago.

Chisholm v. Georgia

Chief Justice Jay,

The question we are now to decide has been accurately stated, viz., Is a State suable by individual citizens of another State?

Justice Cushing,

The grand and principal question in this case is, whether a State can, by the Federal Constitution, be sued by an individual citizen of another State?

Justice Wilson,

The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States?

The Court said yes. The 11th Amendment said no.

Constitutional Law, 2009, p. 264, by Erwin Chemerinsky

State legislators and governors were outraged by the Supreme Court's decision in Chisholm v. Georgia. Georgia adopted a statute declaring that anyone attempting to enforce the Supreme Curt's decision is "hereby declared to be guilty of a felony, and shall suffer death, without the benefit of clergy by being hanged." The intenst reaction of Chiholm is reflected in the speed with which a constitutional amendment to overturn the decision was adopted. The Supreme Court decided Chisholm on February 14, 1794. By March 4, 1794, less than three weeks later, both houses of Congress had approved the Eleventh Amendment. Within a year, the requisite number of states ratified it, although it was three more years until the President issued a proclamation declaring the Eleventh Amendment to have been properly ratified.

American Constitutional Law, 2 Ed., 1988, p. 174.

Eleventh Amendment jurisprudence has left no doubt that the amendment not only reversed Chisholm, but also countermanded any judicial inclination to interpret article III as a self-executing abrogation of state immunity from suit, thereby reinstating the original understanding that the states surrendered sovereign immunity only to the extent inherent "on the acceptance of the constitutional plan."

Constitutional Law, 2008, p. 74, by Randy Barnett, discussing Chisholm and the 11th Amendment, footnote 9.

9. In February term, 1794, judgment was rendered for the Plaintiff, and a Writ of Enquiry awarded. The Writ, however, was not sued out and executed; so that this cause and all the other suits against States, were swept at once from the Records of the Court, by the amendment to the Federal Constitution, agreeably to the unanimous determination of the Judges, in Hollingsworth et al. v. Virginia, argued at February Term, 1798.

U.S. Supreme Court

Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378

Olde English characters transliterated to modern characters for readability.

3 Dall. 378

The decision of the court, in the case of Chisholm Ex'or. versus Georgia, 2 Dall. Rep. 419, produced a proposition in Congress for amending the Constitution of the United States, according to the following terms:

"The judicial power of the United States shall not be construed to extend to any suit in law and equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

The proposition being now adopted by the constitutional number of states, Lee, Attorney General, submitted this question to the Court—Whether the Amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits against any one of the United States by citizens of another state.

[...]

3 Dall. 382

The Court, on the day succeeding the argument, delivered an unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens, or subjects, of any foreign state.

nolu chan  posted on  2015-09-03   18:01:02 ET

Can you explain? - Granted, --- Christhom was squashed, -- but the theory was not, and once again you attempt to bury that fact with legal quotes that do NOT prove your point.

The 11th Amendment overturned Chisholm and Hollingsworth retroactively stripped the Chisholm court of jurisdiction, reducing it to a nullity. Citing a nullity as a source is unpersuasive.

Your jackass source stated, "The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble."

Purportedly some theory, not mentioned by Jay, was supported by Jay by his citing the Preamble.

The preamble was not adopted at the meeting of the convention. It was added later by the Committee on Style. It is of no legal effect. It is just another bullshit "legal" source. Citing discredited bullshit as a source is unpersuasive.

Jacobson v. Massachusetts, 197 U.S. 11, 22 (1904)

MR. JUSTICE HARLAN, after making the foregoing statement, delivered the opinion of the court.

We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question (§ 137, c. 75) is in derogation of rights secured by the Preamble of the Constitution of the United States. Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom. 1 Story's Const. § 462.

Define your "direct incorporation theory" and cite a valid legal authority in support of this bullshit.

Try not to cite a court opinion that has been reversed and then reduced to a nullity, or the preamble which has never been adopted as law.

As for how Jay and his theory fared, Chemerinsky is worth repeating,

Constitutional Law, 2009, p. 264, by Erwin Chemerinsky

State legislators and governors were outraged by the Supreme Court's decision in Chisholm v. Georgia. Georgia adopted a statute declaring that anyone attempting to enforce the Supreme Court's decision is "hereby declared to be guilty of a felony, and shall suffer death, without the benefit of clergy by being hanged." The intense reaction of Chiholm is reflected in the speed with which a constitutional amendment to overturn the decision was adopted. The Supreme Court decided Chisholm on February 14, 1794. By March 4, 1794, less than three weeks later, both houses of Congress had approved the Eleventh Amendment. Within a year, the requisite number of states ratified it, although it was three more years until the President issued a proclamation declaring the Eleventh Amendment to have been properly ratified.

Georgia threatened to hang anyone who attempted to enforce the ruling of the court. The Congress drafted and passed an Amendment reversing the Court within three weeks, and within a year it was ratified by the states. Having achieved an elevated state of wisdom, and not wishing to be hanged without benefit of clergy, the Court proceeded to reverse itself and retroactively strip the Chisholm court of jurisdiction, reducing that entire case and all the opinions, including Jay's, to a nullity.

Whatever Jay was selling, the states and the people were not buying. No sale.

nolu chan  posted on  2015-09-04 17:51:46 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 12.

TopPage UpFull ThreadPage DownBottom/Latest

[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Please report web page problems, questions and comments to webmaster@libertysflame.com