Feds Override Montana State Law

[Kevin_Kennedy]

Not just as President.

Are you referring to his owning slaves?

Among many, many other things. That however is a topic for another day.

I look forward to it.

 

[Arawyn]

Federal law is only supreme over state law if it's based on the Constitution. Drug nor firearm regulation is based on the Constitution, and is therefore not supreme.

Bullshit. That is opinion not fact. All federal law is Consititutional until proven otherwise.

But why does the federal government have a monopoly on the right to define what is or is not constitutional? It makes no sense and is the reason for the explosion in the size and scope of the federal government since the Civil War.

Because the Constitution set it out that way......

 

[Arawyn]

That would be because the Supreme Court decided that the 10th limited their power too much, so they decided to make it toothless. Unluckily for them, the only way to actually make the 10th toothless would be to pass an amendment repealing it.

Regardless of whether or not you agree with SCOTUS decisions, and I ASSume you are anti Marbury v. Madison the judiciary was part of the checks and balances.

Your argument that case law (from SCOTUS) is unConstitutinal is essentially chicken v. egg. The decisions might be wrongly decided, based upon our views of law and the Constitution but it doesn't make the decisions unConstitutional.

Checks and balances are important of course, but far more important is a system of federalism.

An amendment to the Constitution cannot be unconstitutional because it becomes a part of the Constitution, not so with caselaw. The Supreme Court cannot just willy-nilly decide to change the meaning of the Constitution or miraculously find some hitherto unsuspected power of the federal government without an amendment.

Ok, I'm going to throw your words back at you here a bit, paraphrased of course. We talked about legislative intention earlier, correct?

You argued legislative intent as it relates to the Constitution.

Well, part of that legislative intent was case law. The Constitution did NOT erase case law *as inherited* thus, implicitly approved it

 

[Kevin_Kennedy]

Bullshit. That is opinion not fact. All federal law is Consititutional until proven otherwise.

But why does the federal government have a monopoly on the right to define what is or is not constitutional? It makes no sense and is the reason for the explosion in the size and scope of the federal government since the Civil War.

Because the Constitution set it out that way......

No, it most certainly didn't.

 

[Kevin_Kennedy]

Regardless of whether or not you agree with SCOTUS decisions, and I ASSume you are anti Marbury v. Madison the judiciary was part of the checks and balances.

Your argument that case law (from SCOTUS) is unConstitutinal is essentially chicken v. egg. The decisions might be wrongly decided, based upon our views of law and the Constitution but it doesn't make the decisions unConstitutional.

Checks and balances are important of course, but far more important is a system of federalism.

An amendment to the Constitution cannot be unconstitutional because it becomes a part of the Constitution, not so with caselaw. The Supreme Court cannot just willy-nilly decide to change the meaning of the Constitution or miraculously find some hitherto unsuspected power of the federal government without an amendment.

Ok, I'm going to throw your words back at you here a bit, paraphrased of course. We talked about legislative intention earlier, correct?

You argued legislative intent as it relates to the Constitution.

Well, part of that legislative intent was case law. The Constitution did NOT erase case law *as inherited* thus, implicitly approved it

I'm not sure I fully understand what you're saying here.

 

[Arawyn]

But why does the federal government have a monopoly on the right to define what is or is not constitutional? It makes no sense and is the reason for the explosion in the size and scope of the federal government since the Civil War.

Because the Constitution set it out that way......

No, it most certainly didn't.

Article 3

Section 1 - Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 - Treason Note

It didn't? See bolded portions

 

[Kevin_Kennedy]

Because the Constitution set it out that way......

No, it most certainly didn't.

Article 3

Section 1 - Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 - Treason Note

It didn't? See bolded portions

Where does it say that they were granted a monopoly on that power and that the states do not have the right to nullify a law that they deem unconstitutional?

 

[Arawyn]

Checks and balances are important of course, but far more important is a system of federalism.

An amendment to the Constitution cannot be unconstitutional because it becomes a part of the Constitution, not so with caselaw. The Supreme Court cannot just willy-nilly decide to change the meaning of the Constitution or miraculously find some hitherto unsuspected power of the federal government without an amendment.

Ok, I'm going to throw your words back at you here a bit, paraphrased of course. We talked about legislative intention earlier, correct?

You argued legislative intent as it relates to the Constitution.

Well, part of that legislative intent was case law. The Constitution did NOT erase case law *as inherited* thus, implicitly approved it

I'm not sure I fully understand what you're saying here.

Case law, precedent, was the law colonies operated under, as it is a strong portion of British law, i.e. common law.

If, as you say, legislative intent, alone governs the Constitution, and not case law, you'd then be ignoring that precedent/case law, was the law used during and after the days of not only the Consitution but the Articles of Confederation. Can you cite a founding father who advocated the destruction of precedent? And if that said destruction was "intended" why didn't the Constitution abolish the practice?

 

[Arawyn]

No, it most certainly didn't.

Article 3

Section 1 - Judicial powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 - Treason Note

It didn't? See bolded portions

Where does it say that they were granted a monopoly on that power and that the states do not have the right to nullify a law that they deem unconstitutional?

It directly states that only the SCOTUS can make those decisions.

 

[Kevin_Kennedy]

Ok, I'm going to throw your words back at you here a bit, paraphrased of course. We talked about legislative intention earlier, correct?

You argued legislative intent as it relates to the Constitution.

Well, part of that legislative intent was case law. The Constitution did NOT erase case law *as inherited* thus, implicitly approved it

I'm not sure I fully understand what you're saying here.

Case law, precedent, was the law colonies operated under, as it is a strong portion of British law, i.e. common law.

If, as you say, legislative intent, alone governs the Constitution, and not case law, you'd then be ignoring that precedent/case law, was the law used during and after the days of not only the Consitution but the Articles of Confederation. Can you cite a founding father who advocated the destruction of precedent? And if that said destruction was "intended" why didn't the Constitution abolish the practice?

I am not advocating the destruction of precedent, and your history is quite sound in this post. My point is that the Constitution came before case law. If case law does not follow the Constitution in the way the founders intended then it is obviously unconstitutional, but that does not mean I am advocating we get rid of precedent. It simply means that I believe that the Supreme Court should follow what the Constitution actually says, and if that's unclear turn to the writing of the founders for further enlightenment. Don't simply make it up as they go along.

 

[Kevin_Kennedy]

Article 3



It didn't? See bolded portions

Where does it say that they were granted a monopoly on that power and that the states do not have the right to nullify a law that they deem unconstitutional?

It directly states that only the SCOTUS can make those decisions.

It doesn't directly state that, and it doesn't deny the right of nullification to the states.

 

[Arawyn]

I'm not sure I fully understand what you're saying here.

Case law, precedent, was the law colonies operated under, as it is a strong portion of British law, i.e. common law.

If, as you say, legislative intent, alone governs the Constitution, and not case law, you'd then be ignoring that precedent/case law, was the law used during and after the days of not only the Consitution but the Articles of Confederation. Can you cite a founding father who advocated the destruction of precedent? And if that said destruction was "intended" why didn't the Constitution abolish the practice?

I am not advocating the destruction of precedent, and your history is quite sound in this post. My point is that the Constitution came before case law. If case law does not follow the Constitution in the way the founders intended then it is obviously unconstitutional, but that does not mean I am advocating we get rid of precedent. It simply means that I believe that the Supreme Court should follow what the Constitution actually says, and if that's unclear turn to the writing of the founders for further enlightenment. Don't simply make it up as they go along.

And I agree with you.......more than not. Am just saying SCOTUS decisions, while sometimes flying in the face of what we believe to be Constitutional, unConstitutional, is incorrect because it is OUR interpretation v. theirs. And they were granted the right to determine Constitutionality......and us, the people, were not.

 

[Arawyn]

Where does it say that they were granted a monopoly on that power and that the states do not have the right to nullify a law that they deem unconstitutional?

It directly states that only the SCOTUS can make those decisions.

It doesn't directly state that, and it doesn't deny the right of nullification to the states.

How do you view it doesn't directly state that?

Their power (SCOTUS) shall *key legal terminology* extend to ALL cases arsing under this Constitution.

How more directly can that be stated?

 

[Kevin_Kennedy]

Case law, precedent, was the law colonies operated under, as it is a strong portion of British law, i.e. common law.

If, as you say, legislative intent, alone governs the Constitution, and not case law, you'd then be ignoring that precedent/case law, was the law used during and after the days of not only the Consitution but the Articles of Confederation. Can you cite a founding father who advocated the destruction of precedent? And if that said destruction was "intended" why didn't the Constitution abolish the practice?

I am not advocating the destruction of precedent, and your history is quite sound in this post. My point is that the Constitution came before case law. If case law does not follow the Constitution in the way the founders intended then it is obviously unconstitutional, but that does not mean I am advocating we get rid of precedent. It simply means that I believe that the Supreme Court should follow what the Constitution actually says, and if that's unclear turn to the writing of the founders for further enlightenment. Don't simply make it up as they go along.

And I agree with you.......more than not. Am just saying SCOTUS decisions, while sometimes flying in the face of what we believe to be Constitutional, unConstitutional, is incorrect because it is OUR interpretation v. theirs. And they were granted the right to determine Constitutionality......and us, the people, were not.

Well if the argument is that my opinion has no force of law then I think we're in agreement.

 

[Kevin_Kennedy]

It directly states that only the SCOTUS can make those decisions.

It doesn't directly state that, and it doesn't deny the right of nullification to the states.

How do you view it doesn't directly state that?

Their power (SCOTUS) shall *key legal terminology* extend to ALL cases arsing under this Constitution.

How more directly can that be stated?

I'm not denying that it says the Supreme Court can hear cases arising under the Constitution. I'm saying that it doesn't say they have a monopoly on deciding what is or is not constitutional. For instance, Chief Justice John Marshall decided that the Second Bank of the United State was constitutional but President Andrew Jackson disagreed.

"John Marshall has made his decision; now let him enforce it."

The Constitution does not deny the right of nullification to the states, and under the 10th Amendment they have that right.

 

[Arawyn]

I am not advocating the destruction of precedent, and your history is quite sound in this post. My point is that the Constitution came before case law. If case law does not follow the Constitution in the way the founders intended then it is obviously unconstitutional, but that does not mean I am advocating we get rid of precedent. It simply means that I believe that the Supreme Court should follow what the Constitution actually says, and if that's unclear turn to the writing of the founders for further enlightenment. Don't simply make it up as they go along.

And I agree with you.......more than not. Am just saying SCOTUS decisions, while sometimes flying in the face of what we believe to be Constitutional, unConstitutional, is incorrect because it is OUR interpretation v. theirs. And they were granted the right to determine Constitutionality......and us, the people, were not.

Well if the argument is that my opinion has no force of law then I think we're in agreement.

I thought the core of the argument was whether decisions made by SCOTUS could actually be defined as unConstitutional, LOL.

 

[Kevin_Kennedy]

And I agree with you.......more than not. Am just saying SCOTUS decisions, while sometimes flying in the face of what we believe to be Constitutional, unConstitutional, is incorrect because it is OUR interpretation v. theirs. And they were granted the right to determine Constitutionality......and us, the people, were not.

Well if the argument is that my opinion has no force of law then I think we're in agreement.

I thought the core of the argument was whether decisions made by SCOTUS could actually be defined as unConstitutional, LOL.

Well I define them as unconstitutional if they don't follow the Constitution. Case law is not a part of the Constitution, so if it violates the Constitution I don't see why it can't be defined as unconstitutional. Though once again, I do understand that my opinion has no force of law.

 

[Arawyn]

It doesn't directly state that, and it doesn't deny the right of nullification to the states.

How do you view it doesn't directly state that?

Their power (SCOTUS) shall *key legal terminology* extend to ALL cases arsing under this Constitution.

How more directly can that be stated?

I'm not denying that it says the Supreme Court can hear cases arising under the Constitution. I'm saying that it doesn't say they have a monopoly on deciding what is or is not constitutional. For instance, Chief Justice John Marshall decided that the Second Bank of the United State was constitutional but President Andrew Jackson disagreed.

"John Marshall has made his decision; now let him enforce it."

The Constitution does not deny the right of nullification to the states, and under the 10th Amendment they have that right.

I think you are missing the subtlety on that one......John Marshall made his decision......BUT Andrew Jackson was going to find away to make it work, through legislation, IOW, working AROUND the decision.

And like Crimson said earlier, the Constitution doesn't deny the right to drugs.........but yet........

 

[Kevin_Kennedy]

How do you view it doesn't directly state that?

Their power (SCOTUS) shall *key legal terminology* extend to ALL cases arsing under this Constitution.

How more directly can that be stated?

I'm not denying that it says the Supreme Court can hear cases arising under the Constitution. I'm saying that it doesn't say they have a monopoly on deciding what is or is not constitutional. For instance, Chief Justice John Marshall decided that the Second Bank of the United State was constitutional but President Andrew Jackson disagreed.

"John Marshall has made his decision; now let him enforce it."

The Constitution does not deny the right of nullification to the states, and under the 10th Amendment they have that right.

I think you are missing the subtlety on that one......John Marshall made his decision......BUT Andrew Jackson was going to find away to make it work, through legislation, IOW, working AROUND the decision.

And like Crimson said earlier, the Constitution doesn't deny the right to drugs.........but yet........

Yet if the Supreme Court's decision were the end-all of constitutional debate then Andrew Jackson would not have been able to end the Bank.

I am aware the Constitution doesn't deny the right to drugs, and that's why I support the states being allowed to legalize drugs if they wish.

 

[Arawyn]

I'm not denying that it says the Supreme Court can hear cases arising under the Constitution. I'm saying that it doesn't say they have a monopoly on deciding what is or is not constitutional. For instance, Chief Justice John Marshall decided that the Second Bank of the United State was constitutional but President Andrew Jackson disagreed.

"John Marshall has made his decision; now let him enforce it."

The Constitution does not deny the right of nullification to the states, and under the 10th Amendment they have that right.

I think you are missing the subtlety on that one......John Marshall made his decision......BUT Andrew Jackson was going to find away to make it work, through legislation, IOW, working AROUND the decision.

And like Crimson said earlier, the Constitution doesn't deny the right to drugs.........but yet........

Yet if the Supreme Court's decision were the end-all of constitutional debate then Andrew Jackson would not have been able to end the Bank.

I am aware the Constitution doesn't deny the right to drugs, and that's why I support the states being allowed to legalize drugs if they wish.

No, the issue is, especially in their decisions, or reading cases is finding what their (SCOTUS) issue is and finding a way to circumvent their decision. Which, IMO, should be the true indicator of checks and balances. For example, I can't count the decisons upon which SCOTUS said a law was either too broad (then come legislation narrowing it, nullifying the decision) or where they said it was too narrow (then legislation then broadens it, nullifying).