« Politics on Pine Ridge | Main | Aristotle & Abraham (Lincoln) »

Thursday, August 05, 2010

Comments

William

"The people of Missouri cannot nullify Federal Law"; that's true enough, as far as it goes, because it's not accepted by the public at large, but the legitimacy of any government ultimately requires the consent of the governed.

Don't we already see, what are in essence, acts (legal and/or symbolic) of nullification being effected across the country by both the Left and the Right? Aren't "Sanctuary Cities", States "Legalization of Marijuana", MOs "Proposition C" and the MT & SD "Firearms Freedom Acts" all examples of how the States are increasingly pushing back against Federal intrusion over State power? The "popular will" of California and Missouri are certainly very different, which is ultimately the point.

Certainly, Thomas Jefferson made the case that Nullification is not only Constitutional but necessary, in order to preserve it. "Thomas Jefferson's Kentucky Resolutions claim that the U. S. Constitution was a compact among the several states-whereby the states delegated certain limited powers to the U.S. government; any undelegated power exercised by the U. S. government is thus void. Furthermore, the general government is not the final and authoritative judge of its own powers, since that would make the government's discretion, and not the Constitution, the measure of those powers-but rather the parties to the contract, the states, have each an equal right to judge for themselves whether the Constitution has been violated as well as "the mode and measure of redress"-since there is no common judge of such matters among them. Thus, every state can of its own authority nullify within its territory "all assumptions of power by others"-i.e., all perceived violations of the Constitution by the federal government."

If, or when, the American public at large view the actions of the Federal Government to be at odds with US Constitution (which appears to be a growing belief) it's not unlikely that the public will turn to Nullification as a means to address the limits of the Federal Government. One may argue that the Supreme Court will rule against the Constitutionality of Nullification BUT if the public believes the Supreme Court has exceeded ITS authority, the authority of the Court itself is at risk.

I see a growing acceptance of Nullification that is likely to continue if the Federal Government does not take action to curb itself. A Lame Duck session of Congress could very likely be a tipping point, if Congress uses the session to enact sweeping and unpopular legislation after the elections. That is likely to test the limits of the "consent of the governed".

Bill Fleming

When it comes to human rights, KB, the Constitution trumps public opinion. Perhaps you have it backwards. Sometimes — especially when it involves our "inalienable rights" — the majority is contemptuous of our Constitution. That's why we have a Republic and three branches of Government as opposed to a direct democracy.

Another case in point: show of hands... how many here think we need to amend or nullify the 14th Amendment?

Bill Fleming

Ha! Looks like William and I were typing our somewhat opposing views at the same time. His post wasn't there when I started mine. Clearly, he types faster than I do!

So William, sometimes I hear the anti-abortion folks say that they would like to modify the 14th Amendment to include unborn human life (i.e. fertilized ovum, zygotes, blastocysts, embryos, fetuses, etc.), and lately, some of those same folks saying they want to change Amendment 14 to exclude from citizenship those same life forms once given birth in cases where neither parent is a US citizen. Do you support either of these two forms of Constitutional nullification?

Jason

I don't think we are going to find too many people that want to amend or nullify the 14th amendment. However, show of hands....how many here would like to see the 14th amendment applied the way it was intended, and not used as a tool in a political agenda?

Bill Fleming

Jason, what do you mean by "the way it was intended" exactly? I assume you mean it shouldn't be used as a way for the Supreme Court to overrule Florida's wish to recount the votes for President in their state, and instead appoint a President of their own choosing by judicial fiat, in a vote of 5-4, right? ;^)

Donald Pay

This vote was held during primaries where Democratic races were hardly contested. As a result the vote was skewed heavily in favor of Republican voters. I don't think that shows much except that Republican voters don't like reasonable requirements for people to be covered by health insurance Thanks, but we already knew that. The measure's opponents, which included virtually the entire health care system in Missouri, didn't bother to spend money against it because it was so badly written that it will be struck down.

duggersd

Sen. Jacob Howard of Michigan,the author of the 14th amendment said this: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers." I believe this tells what was intended by the amendment. Perhaps you were gone that day when the 14th amendment was discussed and its intended purpose to prevent the former Confederate states from blocking citizenship upon the former slaves and their children. As a matter of fact, if you read the amendment, it says "and subject to the jurisdiction thereof". Now, is a person who is here illegally "subject to the jurisdiction thereof"? Do you REALLY believe it is OK for a woman who is 8 1/2 months pregnant to come into the US and have a baby at an emergency room in the US and that baby is a citizen?
As for your problem with the same-sex marriage thingy. Marrying a person of the same sex is not an inalienable right. NOBODY was having their inalienable rights trampled upon in CA.

Bill Fleming

"Now, is a person who is here illegally "subject to the jurisdiction thereof"?"

Yes, of course. A person who is born here is not here illegally.

William

It's always been obvious to any casual reader of the 14th Amendment that its expressed purpose was to provide a broad definition of citizenship that overruled the decision in Dred Scott v. Sandford (1857), which held that blacks could not be citizens of the United States.

The 14th Amendment explicitly granted citizenship to former SLAVES, it was not a "broadbrush" definition of "birthright citizenship".
http://www.14thamendment.us/

Bill Fleming

DuggerSD and William. The same argument you are using here was used for years to deny American Indians rights to citizenship IN THEIR OWN LAND. You may think it's a clever gambit, and a patriotic thing to do, but I don't.

http://www.dailykos.com/storyonly/2010/8/4/890249/-14th-AmendmentAmerican-Indians

William

BF,

Misinterpretation of the 14th Amendment, does not invalidate the 14th Amendment, it is what it is.

duggersd

Bill, I finally agree with you. You don't think.

Bill Fleming

Yes, William, it is what it is. Isn't everything? I hope you two can someday gain insight into the absurdity of your position here. Until then, were kind of off topic, (this is supposed to be about Health Care) so I won't pursue the argument further at this time. Maybe later when an appropriate topic comes up.

KB

Donald: You say: "This vote was held during primaries where Democratic races were hardly contested. As a result the vote was skewed heavily in favor of Republican voters." I can see you're a bit rattled. In Missouri, both Republican and Democratic senate primaries were easily won by the front runners. Yet about 18 voters participated in the Republican primary for every 10 who did so in the Democratic primary.

You also say: "I don't think that shows much except that Republican voters don't like reasonable requirements for people to be covered by health insurance Thanks, but we already knew that." You think that 71% of the vote is not significant! I can't imagine what you would view as significant. You are in a dream world, my friend. Scott Brown really did replace Ted Kennedy.

BF: No. "Human Rights" do not trump the voters; constitutional rights do. That includes rights in the Constitution, not rights dreamed up out of thin air by maximalist judges.

To all: The purpose of the 14th Amendment citizenship clause was, as noted, to overrule Dred Scott and create a national definition of citizenship. That purpose not with standing, like the Second Amendment, it says what it says and it does what it does. Someone born here is subject to the jurisdiction of a state and is a citizen.

Bill Fleming

KB, yes well okay, kind of. The Constitution does not grant rights, but rather it protects and secures "natural" (endowed) ones. As per numerous places in the founding documents and evolution of same (DOI, Constitution, Bill of Rights, etc) we the people have far more rights than are specifically enumerated therein. The Constitution serves to elucidate for us a few of those inalienable rights which may seem to some, for whatever reason, not quite so "self-evident ." It is by no means to be considered an all inclusive list. Hence the need for the Judicial branch of government and Amendments via the Legislative.

Bill Fleming

By the way, KB, when it comes to rights protected (secured) by the Constitution, are there any that are NOT "human?"

duggersd

Professor Blanchard:
Yes, the 14th amendment was in response to the Dred Scott decision and the need to define citizenship and the need to prevent former Confederate states from denying citizenship to former slaves. I will also stipulate that we have given citizenship to anybody who is lucky enough to be born here. However, unless I am mistaken, this has not actually been brought up to the SCOTUS. Now, if you will humor me for just a moment.
Let us suppose the US passed a law that said any child born in the US and under the jurisdiction thereof is required to have a measles immunization by the time said child is three years old. Enter our French couple who are here on a work VISA for five years. They have a child shortly after their arrival. Can the US force that couple which happens to not want that immunization for their child to have their child immunized? I would say the answer is no because the child is not under the jurisdiction thereof. That child is under the jurisdiction of France and subject to the laws of France, right? If I am correct, then this would apply to any child of people here illegally.

Bill Fleming

DuggerSD, why do you want to be right about this? What's the point? Don't you like babies? Do you think some babies should become criminals and outcasts from the country of their birth the moment they are born? Or what? I don't get it. Sorry, but anyone who can have contempt for a mother wanting her child to have the best life possible is at a level of thinking that is beyond my comprehension. Tell me something, DuggerSD, do you claim to be "pro-life?"

duggersd

Bill, why do you like being wrong in this. It is not a matter of contempt, but of respecting the law. What is your problem with respecting the law? Yes, a mother would want the best possible life for her child, as would most fathers. However, as an American I want the best possible life for my children. One of the things that leads to the best possible life for my children (and my grandchildren) is having an economy that is strong, a government able to govern and borders that are respected.
Tell me Bill, just why is it you want to encourage women to break the law just so they can have their child where they might have a better chance? Also, would you please give me a list of just which laws it is OK for people to break and which ones should be enforced? It would make it easier for our law enforcement personnel.
BTW, you have already defined me as pro-choice.

Bill Fleming

Most mothers I know would break the law to save their children, DuggerSD. So would I as a father.

KB

BillF: I emphatically agree that the Constitution is designed to protect natural rights. It is order formed, specifically, to protect the natural rights outlined in the Declaration. But all the powers of government flow directly from the Constitution.

Thus a judge would be well-advised, when interpreting the 1st or 14th Amendments, to consult the Declaration. They rarely do. But the judge can only legitimately enforce what the Constitution authorizes. Suppose a judge such believe, as I do, that human beings are moral persons from the moment of conception. Can he then declare by judicial fiat that the Federal Government and the states must ban abortions, and authorize lower courts to take charge of state institutions to see that this is done? I say no, because the Constitution does not answer the question of when legal, constitutional personhood begins.

I am in favor of gay marriage as a matter of policy. Can a judge legitimately mandate legal gay marriages for all the states, as has now been done in California? No, because the Constitution provides no standards as to who and who may not legally marry? In same sex couples have an "equal protection" right to marry, what about first cousins? Second cousins? Brothers and sisters? Neither the 14th amendment nor any other part of the constitution answers such questions. The judge merely wrote his political opinions into the text of the law. If you think that's cricket, let's see how you like if should the political balance on the court shift the other way.


KB

Duggersd: a French couple here on a work VISA is emphatically the jurisdiction of the state wherein they reside. If they announce they intend to kill their child, the state will (I hope!) step in and stop it. Which laws apply to such residents is a matter for law to decide.

KB

ps. BillF: I missed one of your comments. In fact there are rights in the Constitution that are not human rights. The right to vote, for example, is a civil right. I have the right to vote in South Dakota elections because I am a citizen of the United States and a resident of South Dakota. Human residents of South Dakota have no right to vote for South Dakota's next Senator (if he had an opponent)nor do resident aliens, let alone illegal aliens have a right to vote in American elections at all (human though they are). Likewise human beings who are below a certain age have no right to vote at all, or run for several offices.

Human rights are those that you have merely because you are a human being.

Bill Fleming

Okay, KB, I think I understand your semantic distinction of "human" versus "civil" rights. In that case, the right to bear arms is thus a "civil" versus "human" right, if I'm following you correctly, yes?

As to the disposition of judges, it seems to me that they are the final, legal arbiters of such things as stipulated by law, and can decide, in conjunction with their fellow justices anything they darn well please and the rest of us have to live with it. Take the "appointment" of GW Bush as POTUS for example. This was accomplished by just such a 14th Amendment "equal protection" interpretation as I recall. Interesting (maybe even karmic?) isn't it that those same two lawyers are on the same side arguing the gay marriage issue in court.

DuggerSD do you think the people who escaped from East Berlin to West Berlin were wrong? They most surely broke the law, didn't they? "Mr. Gorbachev, tear down this wall!"

duggersd

KB, it is against the law to murder. I agree. You cannot come in to a country and break their laws. However you failed to answer the question I put forth. Can the government force the couple to give their child that immunization? If the answer is no, then they are not under the jurisdiction of the US.
Let us turn the question just a little. Let us suppose Israel passed a law requiring ALL boys to be circumcised then they are six weeks old. A US couple is staying in Israel working for a US company for five years. When President Netanyahu tells that couple they have to circumcise their son, what would Hillary Clinton and President Obama tell President Netanyahu? I would venture to say they would say that child is not under the jurisdiction of Israel and cannot be forced to be circumcised.
Bill, they broke the law of East Germany, but not West Germany. If they went back to East Germany I suspect they would have to suffer the consequences. Now Bill, no more questions until you tell us just which laws should not be enforced.

KB

Dugger: If you can arrest a resident alien for murder, then the resident alien is under your jurisdiction. The only remaining question is whether your laws are reasonable. Would it be reasonable to expect a French couple wishing to enter the U.S. to show immunization records for their child? Surely, just as we do when children begin school. Would it be reasonable to forcibly immunize their child? Hardly, but that has nothing to do with jurisdiction.

Likewise with your circumcision example. Such a law would be universally considered unreasonable; but you are emphatically under the jurisdiction of Israel when you travel there. You have to obey Israeli law and can be hauled into Israeli courts for breaking it. That's what "under the jurisdiction" means.

Aliens in the U.S., legal or otherwise, are under the jurisdiction of the states wherein they reside. No amount of creative scrabble can escape that.

KB

Bill: a right to self-defense in some circumstances is certainly a human right. That has been recognized since the beginning of liberal democracy. Whether that translates into a right to bear arms is another question. So long as the second amendment protects the latter as a civil right, the question is largely moot. I don't think this is merely a "semantic" distinction. We are morally obligated to protect the human rights of Minnesotans. We really don't have to let them vote in South Dakota elections.

If you are right that Judges are our Lords and we have to put up with whatever they say, then why not simply abolish elections and let the Judges decide? You seem to object to what the Court did in Bush v. Gore, and then undercut any grounds you might have to object.

After the 2000 election, the Florida State Supreme Court tried to throw the election to Gore by mandating a counting method that, Gore thought, would give him a Florida victory. It turns out that he was wrong. The U.S. Supreme Court was forced in at that point, and basically required that the votes be counted according to laws in place before the election. That was the right decision, though I think their argument was bad. At any rate, one can agree of disagree with what the Court did.

Bill Fleming

All laws should be enforced, DuggerSD, I've not argued otherwise. KB's topic here is nullification and other forms of civil disobedience. I am arguing as Thoreau did that sometimes one has a moral obligation do disregard the law. That said, anyone who knowingly and intentionally breaks the law should be prepared to accept the consequences.

Bill Fleming

I think all laws should be enforced, duggerSD. I also think, as did Thoreau, Gandhi, MLK, and my old boss Cesar Chavez that sometimes they must be disobeyed as a matter of moral obligation. Isn't that after all what this thread is all about? Nullification of the law by popular vote, and civil disobedience as a matter of moral conscience?

That said, anyone who intentionally breaks the law should be prepared to accept the consequences for doing so.

KB

Dugger: If the state can arrest you, throw you in the slammer, and haul you into court, then you are by God under that states' jurisdiction. Can a state require that resident aliens immunize their children? I don't know, but I can't see why not. As long as the law is equitably applied, it sounds like an ordinary health and safety regulation. I am sure that such aliens would have the choice of leaving if they chose not to comply. If for some reason the state chose to exempt resident aliens, that would be an exercise of jurisdiction. If Congress chose to enact a blanket exemption, that would in effect remove state jurisdiction over a specific question, but not over the person to whom it applies.

If Israel made circumcision a requirement for all males crossing their border, that law would arouse intense opposition. But the issue would not be Israel's jurisdiction, which is complete within its borders. The issue would be a ridiculous law.

The only possible exceptions to state or federal jurisdiction over persons within their borders that I can think of would be Ambassadors and their families. Perhaps Native Americans on reservations are another. I am no expert. In such cases, the exceptions to jurisdiction would exist because they are explicit in Federal Law or inferred from Constitutional text.

Give it up. A child born to undocumented parents in your local hospital is certainly under the jurisdiction of the United States and of the State where he or she squeezed out into the light. Logic affords no other conclusion.

KB

BillF: a limited right to self-defense has been recognized as a human right since the beginning of liberal thought. The specific right to keep and bear arms is certainly a civil right, though the Court has determined that the 2nd Amendment it is an expression of that human right and interpreted it accordingly.

If judges are the final arbiters of such things, as you say, then why bother to have elections at all? Just let our black-robed masters make all the decisions. In fact, judges have authority only over specific cases. When we think they have gone off the rails, there are a number of devices available. Congress can remove the court's jurisdiction over certain cases, for example. We can amend the Constitution.

As to Bush v. Gore, the Federal Court acted only after the Florida State Supreme Court tried to throw the election to Gore. Gore wanted to change the rules for counting ballots in such a way as he thought would result his winning that state. It turns out he was wrong, but the Florida court didn't know that. The U.S. Supreme Court insisted that the state election rules in place before the election couldn't be changed after the election. Funny, but that seems like common sense to me.

Bill Fleming

I think all the laws should be enforced, DuggerSD. Did you understand me to say that they shouldn't? My point, which is the same as Thoreau's, MLK's, Ghandi's and yes, even the Founders', is that sometimes civil disobedience is the more moral and noble course of action.

The comments to this entry are closed.