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Thread: Incorporation doctrine is supported by Article VI

  1. #1

    Incorporation doctrine is supported by Article VI

    A6:
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

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  3. #2
    If that's the case then why did the Incorporation Doctrine not only started appearing in the late 1800s, early 1900s?
    __________________________________________________ ________________
    "A politician will do almost anything to keep their job, even become a patriot" - Hearst

  4. #3
    Quote Originally Posted by Matt Collins View Post
    If that's the case then why did the Incorporation Doctrine not only started appearing in the late 1800s, early 1900s?
    The Authors wouldnít learn that they had intended that all along, until an average of 70 years after their deaths. When informed of their newly discovered original intent shortly after the Civil War, Benjamin Franklinís coffin began shuddering and loud raucous laughter was heard before a voice said, ďPass an Amendment you retards.Ē So thatís what they did.

  5. #4
    Quote Originally Posted by Matt Collins View Post
    If that's the case then why did the Incorporation Doctrine not only started appearing in the late 1800s, early 1900s?
    The BoR is part of the Constitution and is therefore binding on the Judges in every State, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Only the 1stA (and perhaps only the first part of that) specifies that it only applies to Congress.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  6. #5
    Quote Originally Posted by Matt Collins View Post
    If that's the case then why did the Incorporation Doctrine not only started appearing in the late 1800s, early 1900s?
    The fact that people violated the Constitution until it was later amended to be more specific doesn't change anything.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  7. #6
    Quote Originally Posted by GunnyFreedom View Post
    The Authors wouldn’t learn that they had intended that all along, until an average of 70 years after their deaths. When informed of their newly discovered original intent shortly after the Civil War, Benjamin Franklin’s coffin began shuddering and loud raucous laughter was heard before a voice said, “Pass an Amendment you retards.” So that’s what they did.
    The founders specified that the 1stA (or perhaps just the first part) only applied to Congress, the fact that they thought that necessary shows that they knew it would apply to the states if they didn't, they then refrained from specifying that on every other part of the BoR.

    The Founders believed that the rights in the BoR were fundamental and GOD given, they would not have believed that the states should have been allowed to violate them.

    What use is the 2ndA if the militia and the people are disarmed by the states? Not only would the rights of the people be destroyed but the "well regulated militia" purpose would be frustrated.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  8. #7
    The 5th Amendment's prohibition against taking private property without compensating the owner (and presumably the rest of the Bill of Rights) was held to apply only to Congress and not the States in Barron v. Mayor and City Council of Baltimore, 32 U.S. 343 (1833). The Court's reasoning is as follows:

    The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.

    If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

    The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.

    The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States.

    It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the General Government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the General Government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found generally to restrain State legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words.

    If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason.

    Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

    But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.

    We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  9. #8
    Quote Originally Posted by Sonny Tufts View Post
    The 5th Amendment's prohibition against taking private property without compensating the owner (and presumably the rest of the Bill of Rights) was held to apply only to Congress and not the States in Barron v. Mayor and City Council of Baltimore, 32 U.S. 343 (1833). The Court's reasoning is as follows:
    Right, imo each Amendment individually describes whether it applies to just the fed or to everyone in the country. You don’t need “incorporation” just take the text at face value. Amd 1 CONGRESS shall make no law. Amd 2 the PEOPLE shall not be infringed.



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  11. #9
    Quote Originally Posted by Swordsmyth View Post
    The BoR is part of the Constitution and is therefore binding on the Judges in every State, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

    Only the 1stA (and perhaps only the first part of that) specifies that it only applies to Congress.
    I am pretty positive that at no time prior to the made up incorporation doctrine did the Bill of Rights apply to state governments.
    __________________________________________________ ________________
    "A politician will do almost anything to keep their job, even become a patriot" - Hearst

  12. #10
    Quote Originally Posted by Sonny Tufts View Post
    The 5th Amendment's prohibition against taking private property without compensating the owner (and presumably the rest of the Bill of Rights) was held to apply only to Congress and not the States in Barron v. Mayor and City Council of Baltimore, 32 U.S. 343 (1833). The Court's reasoning is as follows:
    A bad and tyrannical ruling.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  13. #11
    Quote Originally Posted by GunnyFreedom View Post
    Right, imo each Amendment individually describes whether it applies to just the fed or to everyone in the country. You don’t need “incorporation” just take the text at face value. Amd 1 CONGRESS shall make no law. Amd 2 the PEOPLE shall not be infringed.
    Exactly, Article VI already binds the states with the Constitution and the BoR is part of the Constitution.
    Incorporation as the result of a later amendment may or may not apply to the 1stA (or the first part of it) to the states but it was only required for the rest because the plain text of Article VI had been ignored.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  14. #12
    Quote Originally Posted by Swordsmyth View Post
    A bad and tyrannical ruling.
    But a ruling nevertheless that established what the law was before the ratification of the 14th Amendment. Your wish for what the law should have been doesn't make it so.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  15. #13
    Quote Originally Posted by Sonny Tufts View Post
    But a ruling nevertheless that established what the law was before the ratification of the 14th Amendment. Your wish for what the law should have been doesn't make it so.
    I’m going to have to disagree with this. For my part, any SCOTUS ruling that is not consistent with the actual Constitution is inherently invalid. If I may take it ad ridiculum to illustrate the point, SCOTUS could rule tomorrow that homicide for the purpose of sustenance cannibalism was “legal.” Regardless of whatever their opinion may be, it’s just not “legal,” because - among other reasons - no American may be deprived of life without due process. No matter WHAT SCOTUS says, even if it’s a 9-0 decision, cannot change that fact.

    I’ve made this same point before even if I didn’t draw it out as much, but since people are on different sides of the question this is probably a good time to do it.

    SCOTUS is not supposed to make law. They are supposed to decide cases. I know what Common Law is, and we cannot abracadabra go back to 1801 right now because too much would break. Nevertheless the fact remains that SCOTUS cannot render a valid opinion that contravenes the Constitution. SCOTUS maybe can render an opinion that contravenes the Constitution, and they do often, but that decision is inherently invalid. Invalid decisions are not law, just “bad choices.”

  16. #14
    Quote Originally Posted by Sonny Tufts View Post
    But a ruling nevertheless that established what the law was before the ratification of the 14th Amendment. Your wish for what the law should have been doesn't make it so.
    Quote Originally Posted by GunnyFreedom View Post
    I’m going to have to disagree with this. For my part, any SCOTUS ruling that is not consistent with the actual Constitution is inherently invalid. If I may take it ad ridiculum to illustrate the point, SCOTUS could rule tomorrow that homicide for the purpose of sustenance cannibalism was “legal.” Regardless of whatever their opinion may be, it’s just not “legal,” because - among other reasons - no American may be deprived of life without due process. No matter WHAT SCOTUS says, even if it’s a 9-0 decision, cannot change that fact.

    I’ve made this same point before even if I didn’t draw it out as much, but since people are on different sides of the question this is probably a good time to do it.

    SCOTUS is not supposed to make law. They are supposed to decide cases. I know what Common Law is, and we cannot abracadabra go back to 1801 right now because too much would break. Nevertheless the fact remains that SCOTUS cannot render a valid opinion that contravenes the Constitution. SCOTUS maybe can render an opinion that contravenes the Constitution, and they do often, but that decision is inherently invalid. Invalid decisions are not law, just “bad choices.”
    ^^^THIS^^^


    And the Constitution has been amended since that bad ruling in order to neutralize it.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankindÖitís people I canít stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  17. #15
    Quote Originally Posted by GunnyFreedom View Post
    For my part, any SCOTUS ruling that is not consistent with the actual Constitution is inherently invalid. If I may take it ad ridiculum to illustrate the point, SCOTUS could rule tomorrow that homicide for the purpose of sustenance cannibalism was “legal.” Regardless of whatever their opinion may be, it’s just not “legal,” because - among other reasons - no American may be deprived of life without due process. No matter WHAT SCOTUS says, even if it’s a 9-0 decision, cannot change that fact.

    I’ve made this same point before even if I didn’t draw it out as much, but since people are on different sides of the question this is probably a good time to do it.

    SCOTUS is not supposed to make law. They are supposed to decide cases. I know what Common Law is, and we cannot abracadabra go back to 1801 right now because too much would break. Nevertheless the fact remains that SCOTUS cannot render a valid opinion that contravenes the Constitution. SCOTUS maybe can render an opinion that contravenes the Constitution, and they do often, but that decision is inherently invalid. Invalid decisions are not law, just “bad choices.”
    The question is, who gets to decide whether a law contravenes the Constitution? In the first instance, it's SCOTUS. Its decision may not comport with your notion of what's constitutional or unconstitutional, but you don't get to have your opinions have any legal effect. Has there been resistance to unpopular SCOTUS decisions? Of course; I'm old enough to remember the reaction of the southern States to the 1954 Brown v. Board of Education decision, which was deemed by them to be an illegitimate decision that violated States' Rights. "Impeach Earl Warren!" signs proliferated (never mind that it was a 9-0 opinion), and the foot-dragging on the part of local governments resulted in President Eisenhower's having to send the National Guard to Little Rock and Presedent Kennedy's having to send the National Guard to Tuscaloosa. Orval Faubus and George Wallace thought that they, not the Court, got to decide constitutional issue, but they were wrong.

    Some decisions have been overturned by constitutional amendments -- the 11th, 13th-15th, 16th, and 19th -- so the people have the final say in the long run. But until a decision is overturned, either by an amendment or by the Court reversing itself, it is legally binding.

    You're right -- the Court is supposed to decide cases. But in doing so it has to determine how the law (whether constitutional, statutory, or common law) applies to the facts of the case. How the law applies to the facts isn't always clear-cut, and many times opinions differ on whether a set of facts violates things like "due process", "equal protection", or "freedom of speech". But the process of deciding such matters results in making law.

    The notion that courts aren't supposed to make law is a myth. Courts have been making law in the Anglo-American judicial system for centuries. Common law was made by courts. Tort law was developed by courts. Even where a statutory or a constitutional provision is involved, a court's application of the provision to a given set of facts will result in a rule of law that will be applied in similar cases. For example, no one who is involved in a defamation case is going to ignore the SCOTUS decisions that have ruled on the effect of the First Amendment on the law of defamation.

    Your hypothetical about cannibalism is unrealistic. SCOTUS justices aren't stupid, and they know they have no ability to enforce their own judgments. They also know that Congress controls their budgets and that too many partisan or unpopular decisions will erode the Court's legitimacy in the eyes of the people.

    It always amuses me when I see people compiling a list of what they consider to be the worst SCOTUS decisions. It invariably includes some in which the Court struck down a law as being unconstitutional; these (e.g., the Brown case) are lambasted as being undemocratic and beyond the authority of the Court (i.e., judicial review is bad). But the list also includes those in which the Court didn't overturn a law (e.g., the Kelo eminent domain case); these are lambasted as being wrong because the Court didn't strike down the law that violated the Constitution (i.e., judicial review should have been exercised). So SCOTUS is damned when it does and damned when it doesn't. It all boils down to whose ox is getting gored.
    Last edited by Sonny Tufts; 08-30-2019 at 10:27 AM.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous

  18. #16
    Quote Originally Posted by Sonny Tufts View Post
    The question is, who gets to decide whether a law contravenes the Constitution?
    Every individual that takes the Oath.
    In the first instance, it's SCOTUS.
    Article, Section and Clause please.

    Its decision may not comport with your notion of what's constitutional or unconstitutional,
    Why are we talking about different people’s “interpretations” of the Constitution, when we can just open it up and read it?

    but you don't get to have your opinions have any legal effect. Has there been resistance to unpopular SCOTUS decisions? Of course; I'm old enough to remember the reaction of the southern States to the 1954 Brown v. Board of Education decision, which was deemed by them to be an illegitimate decision that violated States' Rights. "Impeach Earl Warren!" signs proliferated (never mind that it was a 9-0 opinion), and the foot-dragging on the part of local governments resulted in President Eisenhower's having to send the National Guard to Little Rock and Presedent Kennedy's having to send the National Guard to Tuscaloosa. Orval Faubus and George Wallace thought that they, not the Court, got to decide constitutional issue, but they were wrong.
    Wallace tried to nullify Constitutional Law. You can’t do that. Colorado just nullified unconstitutional law, and nobody invaded them. Have you ever considered that your perception may be distorted by the establishment narrative here?

    Some decisions have been overturned by constitutional amendments -- the 11th, 13th-15th, 16th, and 19th -- so the people have the final say in the long run. But until a decision is overturned, either by an amendment or by the Court reversing itself, it is legally binding.
    Can you show me that provision in the actual Constitution?

    You're right -- the Court is supposed to decide cases. But in doing so it has to determine how the law (whether constitutional, statutory, or common law) applies to the facts of the case. How the law applies to the facts isn't always clear-cut, and many times opinions differ on whether a set of facts violates things like "due process", "equal protection", or "freedom of speech". But the process of deciding such matters results in making law.

    The notion that courts aren't supposed to make law is a myth. Courts have been making law in the Anglo-American judicial system for centuries. Common law was made by courts. Tort law was developed by courts. Even where a statutory or a constitutional provision is involved, a court's application of the provision to a given set of facts will result in a rule of law that will be applied in similar cases. For example, no one who is involved in a defamation case is going to ignore the SCOTUS decisions that have ruled on the effect of the First Amendment on the law of defamation.

    Your hypothetical about cannibalism is unrealistic. SCOTUS justices aren't stupid,
    I do not have your faith in SCOTUS.

    and they know they have no ability to enforce their own judgments. They also know that Congress controls their budgets and that too many partisan or unpopular decisions will erode the Court's legitimacy in the eyes of the people.

    It always amuses me when I see people compiling a list of what they consider to be the worst SCOTUS decisions. It invariably includes some in which the Court struck down a law as being unconstitutional; these (e.g., the Brown case) are lambasted as being undemocratic and beyond the authority of the Court (i.e., judicial review is bad). But the list also includes those in which the Court didn't overturn a law (e.g., the Kelo eminent domain case); these are lambasted as being wrong because the Court didn't strike down the law that violated the Constitution (i.e., judicial review should have been exercised). So SCOTUS is damned when it does and damned when it doesn't. It all boils down to whose ox is getting gored.
    I don’t believe the Constitution is nearly as difficult to read as you seem to think it is.



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  20. #17
    The Constitutional limitation to SCOTUS is not that “they aren’t stupid.”

  21. #18
    Quote Originally Posted by GunnyFreedom View Post
    Article, Section and Clause please.
    Article III, Section 1: "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."

    What is encompassed by "judicial power"? At a minimum it must include the authority to determine how the law applies to the facts. So what happens if a party to a lawsuit claims that a statute passed by Congress violates the Constitution?

    If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

    It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

    If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

    Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

    This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure...

    The judicial power of the United States is extended to all cases arising under the Constitution. Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

    This is too extravagant to be maintained.

    In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

    There are many other parts of the Constitution which serve to illustrate this subject.

    It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

    The Constitution declares that "no bill of attainder or ex post facto law shall be passed."

    If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

    "No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

    Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

    From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

    Marbury v. Madison, 5 U.S. 137 (1803)
    Quote Originally Posted by GunnyFreedom View Post
    Why are we talking about different people’s “interpretations” of the Constitution, when we can just open it up and read it?
    Because the application of phrases like "due process", "equal protection", and "freedom of speech" aren't always self-evident. It's easy to apply the rule that one must be at least 25 to be a Representative in Congress. It's more difficult to determine whether the First Amendment prohibits a State from criminalizing the desecration of the flag of the Unuted States.

    Quote Originally Posted by GunnyFreedom View Post
    Wallace tried to nullify Constitutional Law. You can’t do that.
    Constitutional law as decreed by whom? SCOTUS, perhaps?

    Quote Originally Posted by GunnyFreedom View Post
    Colorado just nullified unconstitutional law, and nobody invaded them.
    If you're referring to Colorado's legalizing pot, the federal law was held to be constitutional (an erroneous decision, IMHO). It's not so much that Colorado nullified it as the Justice Department hasn't enforced it.

    Quote Originally Posted by GunnyFreedom View Post
    Can you show me that provision in the actual Constitution?
    See above.

    Quote Originally Posted by GunnyFreedom View Post
    I don’t believe the Constitution is nearly as difficult to read as you seem to think it is.
    If it were so clear, there wouldn't be so many 5-4 decisions.
    We have long had death and taxes as the two standards of inevitability. But there are those who believe that death is the preferable of the two. "At least," as one man said, "there's one advantage about death; it doesn't get worse every time Congress meets."
    Erwin N. Griswold

    Taxes: Of life's two certainties, the only one for which you can get an automatic extension.
    Anonymous



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