Well, whaddya know? I leave for a couple of days and an actual debate on a legal topic breaks out!
Not according to the self-appointed "welcoming committee." My reviving of this dead thread by offering my "opinion" has, in one person's assessment, hijacked it and is entirely unwelcome.
joefromchicago wrote: Surf_Fish
, you've raised some valuable points. But your reliance on some of the sources is misplaced. Your quotation from Calder v. Bull
, for instance, is hardly conclusive on the issue. After all, Justice Chase's opinion wasn't the majority opinion in that case: the SCOTUS was still issuing seriatim
opinions in those days, so each justice wrote separately.
I place weight on Chase's opinion for two reasons. 1st, it was offered contemporaneously with the debate and ratification of the Constitution and Bill of Rights. 2nd, no rebuttal or refutation to Chase's basic premise exists in the opinion. While Justice Patterson does say, . . .
"Though I concur in the general result of the opinions, which have been delivered, I cannot entirely adopt the reasons that are assigned upon the occasion."
. . . he acknowledges that an act of the legislature that violates the "natural laws of justice" is void; he states that the judiciary's power only extends to declaring the act is violative of the fundamental principles not to bindingly declaring it void.
"If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid. 2nd. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act."
I realize that this case discusses laws created by the regular legislative power granted to these bodies. I realize that the amendment process is of a different nature; if the process is followed the outcome is inherently "constitutional." The amendment process remains though, an action of those bodies operating under their federal constitutional authority.
That constitutional authority was originally granted to those bodies to be exercised in conformity with the founding principles. All legislative action is especially controlled by the clearly defined and delineated exceptions
to the exercise of governmental power, (ex post facto, titles of nobility, BoR). These issues were never intended to be within the orbit of governmental influence. Any
claim to them by government under any pretense, including amendment, is illegitimate.
The amendment process should be held to the same standard of legitimacy as the normal legislative power; the people are excluded from the process they remain at the mercy of their representatives who can only act under their limited powers. The legislature's constitutional powers cannot extend to acting in violation of the principles behind the Constitution. As Marbury v. Madison held;
"The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent."
That speaks volumes about the shared responsibility for vigilance held by each branch of the government and the citizenry. All of them should be able to recognize and none of them can allow, governmental overstepping of authority. In simpler terms it states;
Those long and well established principles are fundamental. They act as the bedrock, the foundation for the Constitution and its authority, from which all governmental power is granted. But while the Constitution is supreme, the governmental power granted by it, "can seldom act," (is strictly limited and has no power to change those principles) so, those principles are designed to be permanent. The child can not change an attribute of its parent.
As I said before, I take this to mean those principles are so permanent, there is no way
(even amendment) to empower the government to retroactively change them, anymore than Congress could repeal a law of physics. What would happen if Congress, in the hopes of reducing injuries and deaths from falls, were to ban gravity? A law violating a founding principle would have exactly the same effect. (only speaking of legitimate action of course)
I do not take the court's language to mean that those principles, on which our Constitution rests, are flexible or evolving, or subject to modern reconstruction or worse of all, the ignorant whims of popular opinion.
Note also that SCOTUS makes no statement that they must speak on the law to reach that conclusion. Apparently, those principles should be known by all citizens. After all, they were once described as "self evident."
So, here's the rub. . .
Nowhere have I said that it is impossible to pass an amendment violative of the founding principles, only that it is illegitimate. We the people ordained and established this Constitution to act in certain specific ways 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." This assumes that the founder's posterity would hold the same principles dear as the founders did. If, in our "modern" and "enlightened" times we don't hold those principles dear and are willing to surrender to government that which was never contemplated to fall under their power, then this Constitution, as a whole
, is deficient for our modern needs.
One can not say it is possible to debone this document and expect it to remain standing.
Moreover, Chase's position in Calder embodied a "natural law" vision of the law that has largely been repudiated (although justices Scalia and Thomas have, at times, suggested that it is still viable).
I wouldn't characterize it as repudiated, I would say it has been ignored. In SEMINOLE TRIBE OF FLORIDA v. FLORIDA, ___ U.S. ___ (1996), the premise seems to have reared its ugly head recently.
Likewise, in West Virginia Bd. of Ed. v. Barnette
, although the court correctly held that constitutional rights were not subject to legislative rescission, it was not suggesting that rights embodied in the constitution were not subject to constitutional amendment
(that issue was simply not before the court).
But an amendment just repealing a provision of the Bill of Rights would not remove the right. An amendment with that intention must grant a new power to government to act upon a subject that beforehand, it was forbidden to do so. Since the Constitution does not give us our rights, there is nothing for government to "take back."
A fundamental principle (without dispute I hope) is that whatever "We the People" did not surrender, was retained.
I'm not sure what those fundamental and unwavering principles might be. If, for instance, we were to hold that "one person, one vote" constitutes a fundamental premise of the constitution, then everything before the enactment of the Nineteenth Amendment would, arguably, be unconstitutional.
I mentioned above what I believe to be the elementary founding principles.
Surf_Fish_IBSP on Sun Jan 11, 2004 12:30 pm in Post: 516474 wrote:
" . . . principles of limited, delegated powers, held by a government that only keeps that power with the consent of the governed. The citizens retained everything not delegated to the government. Our rights were understood to be inherent and inalienable. That is, our rights are endowed by the Creator, not by the magistrate and that each person's natural rights are of such intrinsic value that a person, even willingly, can not surrender, relinquish or transfer their care to another person."
I recommend Federalist numbers 37, 38 and 39, all by Madison, for some insight also.
I would not consider "one person, one vote" a fundamental principle of this Republic. The founders worked very hard to dilute the will of the masses and foreclose a foothold for democracy.
In other words, if a provision (or an omission) contrary to the fundamental tenets of American democracy renders the constitution "unconstitutional," then can we honestly say that the constitution has always been constitutional?
The three-fifths compromise and other considerations regarding slaves were undoubtedly violative of the basic principle of all men created equal. In that regard, the 13th and 14th Amendments remedied the Constitution's inconsistencies with the founding principles. The founder's knew the Constitution was flawed in these instances and the amendment process certainly worked as envisioned in this regard.
I am resetting my preferences to cancel my e-mail notifications from here; I'll check back to read your reply (if there is one). I am very busy on other boards, I can't promise I'll reply.