johnwk
05-11-2009, 08:37 PM
Today on Glenn Beck’s TV show 5/11/09, Randy Barnett, Professor of Legal Theory at the Georgetown University Law Center, appeared as a guest to discuss federal and state laws regulating fire arms and the “State’s Rights issue”, an issue which ought to be referred to as an issue concerning the powers reserved to the States respectively, or to the people, as per our Constitution‘s Tenth Amendment. Keep in mind we are talking about a constitutional question which revolves around “powers” and not “rights“.
For the gun law in question see: Montana sovereignty bills have national scope (http://www.kpvi.com/Global/story.asp?S=10190400)
Associated Press - April 15, 2009 5:24 PM ET
HELENA, Mont. (AP) - Gov. Brian Schweitzer has signed into law a bill that aims to exempt Montana-made guns from federal regulation.
Mr. Barnett asserted during Beck’s show that the law in question will probably not be bought by the SC unless the intrastate market is totally divorced from the interstate market. Mr. Beck then asked Mr. Barnett if he had a winning argument and Barnett’s response was, not for this argument, and he went on to say we need additional amendments to the Constitution that’s going to make clear that the Supreme Court has misconstrued the commerce clause and necessary and proper clause of the Constitution, and he thinks nothing short of such amendments is going to get federalism back on the road again. Keep in mind that Mr. Barnett is a great fan of convening a constitutional convention which I’m sure he is aware would allow for a total rewrite of our existing Constitution.
Mr. Beck then pointed out that when states like Montana joined the union they didn’t think they were joining something that would have all this regulation ___ the federal government has changed the deal [constitutionally authorized regulatory powers] since States like Montana joined the union.
In response Mr. Barnett asserted there is absolutely no constitutional doctrine that says the powers of the federal government are dictated by any understanding that any people of a territory had when they applied to become a state of the union. That, Mr. Barnett, is the muddled thinking which has allowed the federal government and the progressive movement to assume countless regulatory powers which have never been delegated to the federal government by our Constitution!
The truth is, there is a constitutional doctrine that the federal government‘s powers are limited to the intentions and beliefs under which our Constitution was adopted and the documented understanding of enumerated powers being delegated by those who framed and ratified our Constitution. As a matter of fact, this just happens to be the most fundamental rule of constitutional law ___ carrying out the documented intentions and beliefs under which our Constitution, [each article, section, clause and amendment] was adopted.
16 Am Jur 2d Constitutional law
Par. 92. Intent of framers and adopters as controlling.
The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.
So, let us unravel just what was the understanding of those who framed and ratified our Constitution with respect to the commerce clause.
Tell us Mr. Barnett, did it ever dawn upon you to unearth the meaning of the word “commerce’ as used by our founding fathers during our Constitution‘s framing and ratification process?
THE FOLLOWING IS TAKEN FROM THE MASSACHUETTS RATIFING CONVENTION WHEN THE CONVENTION WAS DISCUSSING ART. 1 SEC. 8, PROPOSED POWERS OF CONGRESS AND RAISING REVENUE as appears in Elliots Debates
Mr. DAWES SPEAKING:
“As to commerce, it is well known that the different states” PAGE 57:
now pursue different systems of duties in regard to each other. By this, and for want of general laws of prohibition through the Union, we have not secured even our own domestic traffic that passes from state to state. This is contrary to the policy of every nation on earth. Some nations have no other commerce. The great and flourishing empire of China has but little commerce beyond her own territories; and no country is better circumstanced than we for an exclusive traffic from state to state; yet even in this we are rivalled by foreigners--by those foreigners to whom we are the least indebted. A vessel from Roseway or Halifax finds as hearty a welcome with its fish and whalebone at the southern ports, as though it was built, navigated, and freighted from Salem or Boston. And this must be the case, until we have laws comprehending and embracing alike all the states in the Union.
But it is not only our coasting trade--our whole commerce is going to ruin. Congress has not had power to make even a trade law, which shall confine the importation of foreign goods to the ships of the producing or consuming country
From the above and a number of other examples, which there is not enough space to quote here, we find that the word ‘commerce’ as used during our Constitution’s framing and ratification process, is synonymous with “trade” ___ the exchange and movement of goods between the states. ___ the transportation and exchange of goods between point A and point B, and/or, between the people of point A and point B. There is absolutely nothing to be found during the debates to suggest the word “commerce” as used by the founders carries with it a meaning to regulate the manufacturing of goods, industries which produced goods, contractual agreements between employer and employee involved in the production of goods, nor a power allowing Congress to regulate the manufacture, sale or ownership of firearms!
As a matter of fact it is sheer insanity to suggest the State Delegates to the Convention of 1787 which framed our Constitution, or the States when ratifying the Constitution, intended by the power to regulate commerce was a surrendering of their internal policing powers to Congress, and allowing Congress to henceforth enter the states to dictate the regulation of a state’s manufacturing industry, or regulate its agricultural industry, or dictate the use of, or prohibition of consumer articles of consumption within the states.
So, let us take a look at the documented intentions for which power was granted to Congress to regulate commerce among [not within] the states. An immediate clue to those intentions is surprisingly discovered in another part of our Constitution, Art. 1, Sec. 9:
“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”(my emphasis)
Indeed, we now begin to learn the intentions of our founding fathers with regard to commerce, which was to insure free trade [movement of goods] among the states.
And, in Federalist Paper No. 42 (http://www.yale.edu/lawweb/avalon/federal/fed42.htm) Madison articulates the very reasons for which the power to regulate commerce ought to be placed under the national legislature‘s powers:
“A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”
The power to regulate commerce among the states was primarily intended to prevent one state from taxing another state’s goods as those goods passed through its borders. Additionally, Congress was also to have oversight in a specific and narrowly defined area__ a state‘s inspection laws:
Bottom line is, instead of Mr. Barnett sounding the alarm that we have a federal government acting in rebellion to the documented intentions and beliefs under which our Constitution was adopted, and spending his time educating people to the most fundamental rule of constitutional law which is carrying out the documented intentions and beliefs under which our Constitution was adopted, he panhandles a calling for a constitutional convention during which time the opportunity will present itself for the Washington Establishment to rewrite our entire Constitution and make constitutional various current acts of Congress which are best described as acts of tyranny!
Regards,
JWK
Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.
For the gun law in question see: Montana sovereignty bills have national scope (http://www.kpvi.com/Global/story.asp?S=10190400)
Associated Press - April 15, 2009 5:24 PM ET
HELENA, Mont. (AP) - Gov. Brian Schweitzer has signed into law a bill that aims to exempt Montana-made guns from federal regulation.
Mr. Barnett asserted during Beck’s show that the law in question will probably not be bought by the SC unless the intrastate market is totally divorced from the interstate market. Mr. Beck then asked Mr. Barnett if he had a winning argument and Barnett’s response was, not for this argument, and he went on to say we need additional amendments to the Constitution that’s going to make clear that the Supreme Court has misconstrued the commerce clause and necessary and proper clause of the Constitution, and he thinks nothing short of such amendments is going to get federalism back on the road again. Keep in mind that Mr. Barnett is a great fan of convening a constitutional convention which I’m sure he is aware would allow for a total rewrite of our existing Constitution.
Mr. Beck then pointed out that when states like Montana joined the union they didn’t think they were joining something that would have all this regulation ___ the federal government has changed the deal [constitutionally authorized regulatory powers] since States like Montana joined the union.
In response Mr. Barnett asserted there is absolutely no constitutional doctrine that says the powers of the federal government are dictated by any understanding that any people of a territory had when they applied to become a state of the union. That, Mr. Barnett, is the muddled thinking which has allowed the federal government and the progressive movement to assume countless regulatory powers which have never been delegated to the federal government by our Constitution!
The truth is, there is a constitutional doctrine that the federal government‘s powers are limited to the intentions and beliefs under which our Constitution was adopted and the documented understanding of enumerated powers being delegated by those who framed and ratified our Constitution. As a matter of fact, this just happens to be the most fundamental rule of constitutional law ___ carrying out the documented intentions and beliefs under which our Constitution, [each article, section, clause and amendment] was adopted.
16 Am Jur 2d Constitutional law
Par. 92. Intent of framers and adopters as controlling.
The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.
So, let us unravel just what was the understanding of those who framed and ratified our Constitution with respect to the commerce clause.
Tell us Mr. Barnett, did it ever dawn upon you to unearth the meaning of the word “commerce’ as used by our founding fathers during our Constitution‘s framing and ratification process?
THE FOLLOWING IS TAKEN FROM THE MASSACHUETTS RATIFING CONVENTION WHEN THE CONVENTION WAS DISCUSSING ART. 1 SEC. 8, PROPOSED POWERS OF CONGRESS AND RAISING REVENUE as appears in Elliots Debates
Mr. DAWES SPEAKING:
“As to commerce, it is well known that the different states” PAGE 57:
now pursue different systems of duties in regard to each other. By this, and for want of general laws of prohibition through the Union, we have not secured even our own domestic traffic that passes from state to state. This is contrary to the policy of every nation on earth. Some nations have no other commerce. The great and flourishing empire of China has but little commerce beyond her own territories; and no country is better circumstanced than we for an exclusive traffic from state to state; yet even in this we are rivalled by foreigners--by those foreigners to whom we are the least indebted. A vessel from Roseway or Halifax finds as hearty a welcome with its fish and whalebone at the southern ports, as though it was built, navigated, and freighted from Salem or Boston. And this must be the case, until we have laws comprehending and embracing alike all the states in the Union.
But it is not only our coasting trade--our whole commerce is going to ruin. Congress has not had power to make even a trade law, which shall confine the importation of foreign goods to the ships of the producing or consuming country
From the above and a number of other examples, which there is not enough space to quote here, we find that the word ‘commerce’ as used during our Constitution’s framing and ratification process, is synonymous with “trade” ___ the exchange and movement of goods between the states. ___ the transportation and exchange of goods between point A and point B, and/or, between the people of point A and point B. There is absolutely nothing to be found during the debates to suggest the word “commerce” as used by the founders carries with it a meaning to regulate the manufacturing of goods, industries which produced goods, contractual agreements between employer and employee involved in the production of goods, nor a power allowing Congress to regulate the manufacture, sale or ownership of firearms!
As a matter of fact it is sheer insanity to suggest the State Delegates to the Convention of 1787 which framed our Constitution, or the States when ratifying the Constitution, intended by the power to regulate commerce was a surrendering of their internal policing powers to Congress, and allowing Congress to henceforth enter the states to dictate the regulation of a state’s manufacturing industry, or regulate its agricultural industry, or dictate the use of, or prohibition of consumer articles of consumption within the states.
So, let us take a look at the documented intentions for which power was granted to Congress to regulate commerce among [not within] the states. An immediate clue to those intentions is surprisingly discovered in another part of our Constitution, Art. 1, Sec. 9:
“No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.”(my emphasis)
Indeed, we now begin to learn the intentions of our founding fathers with regard to commerce, which was to insure free trade [movement of goods] among the states.
And, in Federalist Paper No. 42 (http://www.yale.edu/lawweb/avalon/federal/fed42.htm) Madison articulates the very reasons for which the power to regulate commerce ought to be placed under the national legislature‘s powers:
“A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”
The power to regulate commerce among the states was primarily intended to prevent one state from taxing another state’s goods as those goods passed through its borders. Additionally, Congress was also to have oversight in a specific and narrowly defined area__ a state‘s inspection laws:
Bottom line is, instead of Mr. Barnett sounding the alarm that we have a federal government acting in rebellion to the documented intentions and beliefs under which our Constitution was adopted, and spending his time educating people to the most fundamental rule of constitutional law which is carrying out the documented intentions and beliefs under which our Constitution was adopted, he panhandles a calling for a constitutional convention during which time the opportunity will present itself for the Washington Establishment to rewrite our entire Constitution and make constitutional various current acts of Congress which are best described as acts of tyranny!
Regards,
JWK
Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.