Who said anything about the 10th amendment being void? Do you seriously believe that is my argument, or are you politically posturing because you know there is no 10th amendment argument?
Fact of the matter is in 1868, July 9th to be exact, the Constitution itself prohibited the states from enacting or enforcing any laws that deprived it's citizens of life, liberty, and property without the due process of law. Hence, the 10th amendment itself prohibited the states from doing so likewise. (You know that whole, "nor prohibited it by it to the states" clause.) That is not to say the 10th amendment is void, just not applicable law in this case.
There is ABSOLUTELY NO 10th amendment argument in this case. The only viable constitutional argument stems from the 14th amendment. You may argue as to the courts definiton of liberty in such cases, but it has nothing to do with the 10th amendment. In fact anyone who petitioned to the court citing a 10th amendment violation in such cases as these would be considered a laughingstock, that is if the petition did not make it to the circular file first.
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Discussion in 'Political Debate & Discussion' started by Dragoon68, May 24, 2007.
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Much of our law was based on English common law but we sure didn't want to be governed like England else we'd not have revolted.
Judical review is one thing but judical legislation is yet another. What we have today is the latter of these two and it is rampant both at the federal and state level.
The States would not have ratified the original federal Constitution nor any of its amendments if they intended them to mean they would become provinces of the federal government or have their own duly enacted laws over ruled by an out of control Court.
The States wanted that 10th amendment to protect themselves from a perceived threat. Several of the founders had correctly warned against it. The only problem is they didn't realize that threat would still materialize into accepted practice as it has for so many today.
The Court is the weakness of the American system. We are doomed if we don't get a handle on it. -
The lawyers really do resent the non-lawyers having anything to say about or do with the law. It's a tight little bunch isn't it?
We have far too many lawyers involved in government and society in general. -
Judicial review is the very authority of the court to strike down as unconstitutional acts judged to be in violation of the Constitution, (including state laws), and/or to determine the constitutionality of acts committed by the legislature and the executive. It is by its very nature judicial legislation!
Do you not agree with Marbury v. Madison, (1803)? You do know that most of the original founders were alive at the time Marshall and his court issued their opinion? There was not a huge outcry then, now was there? Hmmm... I wonder why? Marshall himself states very clearly that "It is emphatically the province and duty of the judicial department to say what the law is". Honestly, what do you believe the purpose of the judiciary is?
The states wanted the 10th amendment for their protection, I grant you that, but that is not the issue in this case! Not to mention the states, i.e., the founders, realized just how much of a flop the AOC, i.e., state supremity over a centralized government, really was. They did have first hand knowledge of its failure you know. The states gave up their right, so to speak, to enact and enforce laws that deprived life, liberty, or property to their citizens without due process of law when THEY, THE STATES, ratified the 14th amendment to the constitution on July 9th, 1868. Do you or do you not believe the constitution is the supreme law of the land, or do you skip over Article VI altogoether?
BTW, basing our judicial sustem on English common law has nothing to do with governing ourselves as the English. What do you think the other two branches are for? C'mon, you know your history better than that. Our judiciary was based on English common law because the founders knew the system worked, point blank. Read the FP's, especially Hamilton, and you'll see for yourself. -
Do you or do you not believe that the 10th amendment is still part of the Constitution? -
The 10th amendment is part of the constitution, it is just not applicable law in this case! Why is that so difficult to understand? I have given plenty of legal reasons, basic ones at that, as to why it is not applicable and you have yet to give one. Why? If you really believe this is a 10th amendment case show some legal proof. -
James Madison said: "As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary dept. paramount in fact to the Legislature, which was never intended, and can never be proper."
We have come far into that which was never intended and not proper. -
The 10th amendment applies because it justifies the rights of the state to regulate matters such as sodomy and prohibits the federal government for interferring. It is most certainly applicable to the discussion. Why is that so difficult for you to understand? Surely you, as a legal wizard, know better?
If the 14th amendment was intended to remove such rights from the states, then they would be powerless to make and enforce much of any law. -
Chew on this for minute.
Alexander Hamilton Federalist 78
"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm, that the deputy is greater than the principal."
(In case you didn't know, it's a pretty clear justification for judical review......) -
The problem is that this good thing has been expanded into a very bad thing. That bad thing is called judicial legislation. Do you know what that is? This is where the courts decide to take on the authority vested in the legislative branch in order to implement some policy or make some de facto law they believe is in the best interest of the nation as they see it. These acts violate the legitimate rights of the majority to regulate society through law in the interest of illegitimate objections or imaginary rights of a minority. This extends even to policy designed to implement rulings that otherwise involve proper judical review. -
It could also be said "No judical act, therefore, contrary to the Constitution can be valid. ..."! -
With that being said it useless to go in circles arguing the same thing. It's a complete waste of time, and it's very counterproductive. FTR, I am not saying there is not a constitutional argument in this case, only that you are not arguing the correct one. I personally believe the court was right in that I don't believe it is in the scope of any government, federal or state, to criminalize private behavior between consenting adults. I certainly don't want to give them the rights to my private life, nor should you. If you want to argue the court was wrong, so be it. The correct way to do so would be to show why their interpretation of liberty does not extend to said behavior. -
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George Mason said regarding the Court: "... that in this capacity they could impede, in one case only, the operation of laws. They could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive or peernicious, that did not come plainly under this description, they would be under the necessity, as judges, to give it a free course."
That old boy had a lot to do with writing the Bill of Rights. -
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