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The New/Old Common Sense and The Rights of Human Beings - Part 7
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All in all, since the early to mid-1970s, the Supreme Court has been closely divided with respect to, among other things, the degree and manner to which the Tenth Amendment does, or does not, constrain congressional authority in relation to the governmental activities of the state and local governments. When the Supreme Court has been in the mood, it has permitted Congress to stretch the elasticity parameters of the commerce clause, as well as to stretch the meaning of the taxation for the general welfare section of Article I, Section 8 toward the beginning of that section, along with expanding the sphere of influence of the "necessary and proper" clause which appears toward the end of Article I, Section 8. When the Supreme Court has not been in the mood, it has stonewalled attempts by Congress to have its way with state governments.
There appears to be no discernible pattern linking first principles of justice or fundamental concepts of liberty, rights, and powers with Supreme Court judgments other than ideological ones. Before they begin deliberating, the Justices all have their individual, philosophical orientations and predispositions, and, then, once a case comes before them, they go in search of a defensible (at least in their own minds) pathway of legal logic which will enable them to link that case with, on the one hand, some part or parts of the Constitution in a manner which, on the other hand, is in accordance with their underlying philosophical ideologies.
Judicial review is not independent. It is not science. It is not an art form. Rather, judicial review is about ideology and having the power to impose that ideology on the citizenry.
Judicial review is about the shifting elements that lead to philosophical mood swings among jurists. Judicial review is about justice based upon mood swings that are driven by ideological considerations. The people deserve better than this
much better.
In 1985, the Supreme Court ruled in Garcia v. San Antonio Metropolitan Transit Authority, that Congress has the power, via the Commerce Clause, to expand the scope of the Fair Labor Standards Act to include the employees of state and local governments. Among the original provisions of that act is the requirement for private businesses to provide their employees with both minimum wage and overtime pay, and the 1985 Supreme Court ruling was extending these provisions to those who were employed by state and local governments.
The Garcia decision overruled a 1976 judgment of the Supreme Court in relation to National League of Cities v. Usery. In the earlier, 1976 decision, the Supreme Court maintained that Congress' desire to regulate the activities of state and local governments "in areas of traditional governmental functions" is unconstitutional because it violates the Tenth Amendment rights of states.
Here we have essentially the same set of issues yielding two diametrically opposed judgments within a period of ten years of one another. There is no underlying, unified theory of jurisprudence governing these decisions, but, rather, one has two more expressions of judicial review by ideological mood swings.
People who have to live with people suffering from some sort of mood disorders can testify to how difficult, frustrating, unpredictable, dangerous, and heartbreaking this can be. How much more difficult is it for citizens to have nine people running around in robes imposing their changing, ideological mood swings onto millions of people who feel entirely powerless with respect to ensuring that those individuals receive the sort of professional help they so desperately need.
What is being said in the foregoing is perfectly sane. What the Supreme Court Justices have been doing over the years is frequently delusional if not downright pathological or worse.
Unfortunately, if one takes the idiosyncrasies of judicial review according to ideological mood swing as one's standard of normalcy, then, whatever critical comments are said against such a process are, by definition, insane. In sociological and psychological circles, this is known as 'framing' an issue so that people's perceptions concerning the truth of a matter may be skewed in an ideologically favorable direction.
Whether one is speaking in terms of the Supreme Court's handing of Garcia v. San Antonio Metropolitan Transit Authority (in which Congress was considered to have the right to regulate what states do in certain respects) or one is considering the Supreme Court's judgment in National League of Cities v. Usery (in which Congress was considered to be violating the Tenth Amendment rights of states), neither decision was in terms of the rights of the people per se. Rights were defined entirely in terms of governmental powers over the people.
The justification cited by the Supreme Court in the Garcia case was that under the Commerce Clause, Congress had a right to regulate states with respect to how the latter paid their employees. The principle cited by the Supreme Court in National League of Cities v. Usery was the Tenth Amendment rights of states. In neither instance does the Supreme Court cite a principle involving the rights of the people over against government, whether federal or state.
The more fundamental principle for deciding the Garcia case might have been stated not in terms of the congressional powers which are given through the Commerce Clause, but, rather, the right of the people in a state to have a republican form of government in which the Tenth Amendment rights of people are recognized and the people have the right to be free of various forms of "involuntary servitude. When the elected and appointed officials of state government oppress their employees, this is not really a republican form of government. When the employees of state government are not given a constitutional standing through which to assert their Tenth Amendment rights to be given fair compensation for their labor and overtime, this is not a republican form of government nor are the provisions of the Bill of Rights being upheld.
Moreover, while most of us do not relish the idea of having to work for someone else in order to survive and, as such, there is an element of involuntariness to what we do, we all tend to recognize and accept this as a necessary form of involuntary servitude. However, what is not a justifiable or acceptable form of "involuntary servitude" is when employers whether in the private or public domain seek to exploit the indigent circumstances of those who are in the general labor pool by claiming that people are free, or not, to accept the sort of compensation package offered by an employer however much such a package may render those workers vulnerable to the numerous problems and dangers inherent in lived contingencies.
In both Garcia v. San Antonio Metropolitan Transit and National League of Cities v. Usery, the discussion is entirely in terms of states' versus federal rights. The people are not much more than an afterthought.
The constitutional issues in these cases are all about vying for power to control, regulate, subdue, restrict, and constrain the activities of the people, as well as about which branch of government gets to call the shots in this respect. Like two selfish, self-serving, arrogant, mindless parents who are fighting one another about the issues of divorce and almost totally oblivious to the fact that what they are doing has adverse ramifications for others namely, the children state and federal governments go about their quarreling, bickering, whining, and self-serving power grabs with hardly a passing nod in the direction to the negative character of the impact their activities are having on the emotional, mental, physical, or spiritual well-being of the very ones to whom they have duties of care
as if people should be so presumptuous as to suppose that democracy is about them and not governments.
When overruling the 1976 Supreme Court decision in National League of Cities v. Usery, Justice Harry Blackmun stated in the 1985 Supreme Court decision in Garcia v. San Antonio Metropolitan Transit Authority that the National League of Cities test for "integral operations in areas of traditional governmental functions" was "both impractical and doctrinally barren." Furthermore, Justice Blackmun argued that the Court in 1976 had "tried to repair what did not need repair." Moreover, according to Justice Blackmun, not only is it the case that states retain their sovereign authority "only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government," but, as well, "Freestanding conceptions of state sovereignty" such as those to which expression was given in the Supreme Court's National League of Cities decision tend to undermine the federalist system of governance by depending on "an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes."
Justice Blackmun went on to tiptoe his way through the states' rights versus federal rights issue by claiming that although the Court must acknowledge "Congress' authority under the Commerce Clause", nevertheless, the Supreme Court must also acknowledge "that the States occupy a special and specific position in our constitutional system." Notwithstanding such dual acknowledgements, the Supreme Court proceeded to uphold the constitutionality of applying the minimum wage and overtime provisions of the Fair Labor Standards Act" to state employers, and, in doing so, it was not necessary to require identification of what the "affirmative limits" of Congress are with respect to the alleged status of state sovereignty.
There is a whole list of ambiguities inherent in Justice Blackmun's position. For example, what did he mean when he said that the National League of Cities test for "integral operations in areas of traditional governmental functions" was "both impractical and doctrinally barren"? What are the criteria for identifying what is "impractical and doctrinally barren"? What is the methodology through which this is determined? What value systems are to be applied in weighing the nature of the impracticalities and doctrinal barrenness?
What did Justice Blackmun mean when he argued that the Court in 1976 had "tried to repair what did not need repair"? What were the motivations for seeking to repair things in National League of Cities v. Usery case? Why was this unnecessary? What are the criteria, methods, and values through which one arrives at the conclusion that it was unnecessary? What makes the latter modality of judicial assessment any more valid or correct than the earlier modality of judicial assessment?
What does it mean to claim that states retain their sovereign authority "only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government"? The statement is made as if the Constitution -- in and of itself and without judicial interpretive interference specifically stipulates that the surrender of a state's sovereignty to the wishes of the federal government is all done in accordance with an identifiable calculus of political transfer of power. Heck, this process of transfer is apparently so automatically transparent that one shouldn't even have to rely on the Supreme Court to point this out.
In fact, according to Justice Blackmun, "Freestanding conceptions of state sovereignty" such as those to which expression was given in the Supreme Court's National League of Cities decision tend to undermine the federalist system of governance by depending on "an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes." So, in effect, Justice Blackmun seems to be saying that the federal and state governments should leave the Supreme Court out of such matters and that these issues need to be settled on the playing field of politics.
Yet, despite having intimated the foregoing, Justice Blackmun, along with the other Justices on the Supreme Court, seem to be compelled by an irresistible urge to issue a ruling anyway
this time -- in Garcia v. San Antonio Metropolitan Transit Authority the Supreme Court favored the rights and powers of the federal government over those of state sovereignty. Around and around the wheel of judicial review goes, and where it stops, nobody knows.
One might point out that when Justice Blackmun stated that while it was necessary for the Court to acknowledge "Congress' authority under the Commerce Clause" nevertheless, the Supreme Court must also acknowledge "that the States occupy a special and specific position in our constitutional system," nonetheless, not only was Justice Blackmun not really saying much of anything except in a wishy-washy, non-committal manner, but what he said is totally devoid of any mention of the need to acknowledge the rather special and indispensable position of the people quite apart from governments. After all, without people, then, neither an amended Constitution nor the governments which are made possible through such an amended Constitution would be possible.
The federal government does not illegally infringe upon the sovereign power of states when it acts to secure the rights and powers of the people which are protected by the Bill of Rights or which are provided for through the constitutional guarantee of republican government, or which are guarded by the "involuntary servitude" clause of the Thirteenth Amendment. As long as the actions of the federal government are directed toward protecting and advancing the rights of the people, then, the rights and powers of state governments are not being infringed upon.
Moreover, contrary to what Justice Blackmun claims in Garcia, the Tenth Amendment rights of states are not limited by what the Constitution entitles Congress to take in the way of surrendered powers, but, rather, first and foremost, the Tenth Amendment rights of states are limited by what the Constitution guarantees to the people. As long as state governments use their sovereignty to establish, secure, protect, and advance the rights, powers, liberties, privileges, and immunities of all of its resident citizens and does not seek to show favor to the rights, powers and liberties of some citizens to the disadvantage of the rights, powers, and liberties of other citizens, then, states, under the Tenth Amendment, have a right to be defended against the incursions of federal government into the internal activities of state governance especially when such incursions are motivated by public policies of the federal government that are intended to undermine, diminish, exploit, or abolish such individual rights and powers.
The duties of care owed to the people by the federal government are similar to the duties of care which are owed to the people by the state and local governments. Federal government has only as much power and state governments have only as much sovereignty as is needed in securing, protecting, promoting and providing for the rights, liberties, and powers of the people over against government encroachment in relation to such rights, liberties, and powers of the people.
The people have the right to be protected against the unwarranted incursions upon their powers and liberties from all levels of government. Consequently, when federal, state, or local governments do anything to undermine the rights and powers of the people, then, their activities are unconstitutional. The rights and entitlements of the people have prior standing to the power and sovereignty of any given level of government.
Alternatively, whenever any level of government seeks to secure, protect or promote the rights, powers, and liberties of the people, then such a level of government has greater constitutional standing than any other level of government which is in opposition to the former level of government. The determining principle here is a function of the rights, powers, and liberties of the people rather than being a function of the powers or sovereignty of a given level of government.
In 1988, with respect to its ruling in South Carolina v. Baker, the Supreme Court expanded the scope of its decision in Garcia v. San Antonio Metropolitan Transit Authority. More specifically, the Supreme Court stated in South Carolina v. Baker that there should be compelling evidence to indicate "some extraordinary defects in the national political process" before the Supreme Court would be inclined to use the process of judicial review to place limits on the manner in which Congress was allegedly encroaching upon the Tenth Amendment rights of states.
The Tax Equity and Fiscal Responsibility Act (TEFRA) was passed into law by Congress in 1982. The Act specified that unless publicly offered long-term bonds offered by state and local governments were issued in a registered form, then, a federal income tax exemption would be withdrawn which previously had been extended to states with respect to interest earned on such publicly offered long-term bonds.
In South Carolina v. Baker, the state argued that since the 1895 decision of Pollock v. Farmer's Loan and Trust Co., both the bearer, as well as the registered bonds issued by states and municipalities, had been free from taxation. The federal government countered with the argument that the Act in question did not abolish the state's power to issue bonds that were tax-exempt but, instead, was merely specifying the kind of bonds which might continue to enjoy such an exemption.
According to the Supreme Court's judgment in South Carolina v. Baker, the operative principle at work was that "limits on Congress' authority to regulate state activities" are "structural, not substantive -- i.e., that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres" concerning state activities which the Supreme Court considered 'unregulatable'. In effect, the Supreme Court was permitting the default value for the constitutional dynamic to be set by what the federal government wished to do in the way of regulation rather than be a function of the interests of states per se.
One wonders what basic principle of justice or human rights permits the Supreme Court to presume that central government has the preeminent authority when it comes to the regulation of human life. There seems to be an implicit allusion in the foregoing bias concerning the power of Congress to an argument which states that since central government gives expression to the will of the people, then, perhaps they are entitled to set the regulatory standards which are to govern the country. If such an allusion is being made in the aforementioned words of the Supreme Court decision in South Carolina v. Baker (and, if it is not, then, I really don't know what the basis is for the Court's giving preferential treatment to the federal government over that of either the states or the people), then, one might just as easily argue that because, in theory at least, the state governments represent the people, then, they should be the ones to establish regulatory control over things.
Whatever the Supreme Court might have meant in the previously quoted excerpt, I tend to disagree with the Court's contention that the "limits on Congress' authority to regulate state activities" are "structural, not substantive". In fact, the reality of the situation is quite the opposite that is, the "limits on Congress' authority to regulate" activities in general and not just those of the states is entirely substantive and not structural.
The meaning, significance, character, scope, and potential associated with constitutional structure is entirely derivative from the substantive understanding of those who are engaging that structure and reflecting on its possibilities against a backdrop of a large array of philosophies, ideologies, interests, assumptions, beliefs, values, purposes, needs, desires, prejudices, and historical events which have expressed through a variety of individuals of very different hermeneutical orientations. To try to argue as the Supreme Court appears to be doing in South Carolina v. Baker -- that one may perceive amidst all of this historical diversity a notion of constitutional structure which is capable of taking the many human variables that are present and synthesize these down to an essential structure of determinate limits and character that favors central government is, to say the least, rather naοve and, in practical terms, is unlikely to be capable of being rigorously demonstrated to the satisfaction of all or even a substantial majority of the people.
In fact, the amended Constitution places a considerable variety of constraints and limits on Congress's authority to regulate either states or the people. This is true irrespective of what portion of the un-amended Constitution may be selected by a purveyor of the interests of centralized government in an attempt to justify what Congress seeks to do in the way of regulating the affairs of its citizens. Moreover, the amended Constitution places an equal number of constraints and limits on the rights of states to regulate the affairs of people.
The structure of the amended Constitution is entirely dependent on the substantive decisions of the people. Unfortunately, federal, state, and local governments often try to induce amnesia in the people with respect to the actual rights of the people with respect to the republican dynamics inherent in the amended Constitution. If there is any default bias structurally present in the amended Constitution, that bias is pointed heavily in the direction of people rather than governments, and it is too bad that in all too many instances the Justices of the Supreme Court do not seem to understand this.
Interestingly enough, in the 1992 case of New York v. United States, The Supreme Court held that Congress did not have the right to "commandeer" state regulatory machinery to administratively implement federal programs. This ruling not only placed a limitation on congressional power, but did so in a manner that seemed to have greater resonance with the Supreme Court judgment in National League of Cities v. Usery than it did to the Court's ruling in Garcia v. San Antonio Metropolitan Transit Authority which, in fact, had actually overturned the constitutionality of the judgment in the National League of Cities case.
In the Supreme Court ruling in New York v. United States, Justice Sandra Day O'Connor argued that "the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power." In addition, without specifically mentioning the Garcia case, the Court rejected the structure versus substantive argument contained within the Garcia ruling that counseled states to look for the protection of their rights in the political process rather than in the Tenth Amendment.
Finally, the Supreme Court's opinion in New York v. United States rejected the federal government's position that New York's sovereignty could not have been violated since its representatives had fully participated in the process through which a compromise had been achieved and, as well, consented to the statutory implementation of that compromise. In rejecting the foregoing argument, Justice O'Connor noted that the "Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals." Therefore,, "State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution."
Wow, it only took a little over two hundred years for the Supreme Court to state that in matters relating to the Tenth Amendment the sovereignty of the state is not the primary issue but, instead, that amendment is primarily about protecting the rights of individuals --- rights which neither state governments nor their representatives have the constitutional authority to surrender to the federal government in a manner which is above and beyond what already are enumerated as congressional powers in the Constitution. Of course, there still is a great deal of ambiguity inherent in the Court's New York v. United States admission concerning the Tenth Amendment since the question of whether, or not, Congress actually even has the authority to regulate by means of the powers that are enumerated in the Constitution without being constrained by the rights of the people to republican government, as well as by the provisions of Bill or Rights and by the 'involuntary servitude' clause of the Thirteenth Amendment is not really being addressed in the Supreme Court's decision. And, of course, conceivably, while the Supreme Court acknowledged that the "Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals," nevertheless, it may be that what the Supreme Court may have had in mind by what it said is not that private individuals should have any form of constitutional standing under the Tenth Amendment but only that elected representatives had a fiduciary responsibility and duty of care to citizens that should be fulfilled, and, as such, the foregoing statement merely represented a reprimand to government officials for not serving the people.
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In Reno v. Cordon (2000) the Supreme Court upheld the Driver's Privacy Protection Act of 1994 (DPPA). DPPA is a federal law which placed limits on the disclosure and/or resale of personal information contained in the drivers' records of the motor vehicles departments of the various states.
The Supreme Court's position in Reno v. Cordon reiterated a principle given expression in the Court's decision concerning South Carolina v. Baker. More specifically, the Court distinguished between, on the one hand, congressional laws that seek to control the manner in which States go about regulating private parties within those states laws which the Court considers to be unconstitutional and, on the other hand, congressional statutes which merely regulate state activities directly.
In Reno v. Cordon the Supreme Court argued that DPPA "does not require the States in their sovereign capacities to regulate their own citizens," but, instead, "regulates the States as the owners of databases." In other words, the Supreme Court considered DPPA to be a matter of regulating and controlling the manner in which databases may be used rather than interfering with how states went about regulating their own residents.
The Court saw no need to decide whether a federal law may regulate the states exclusively. This is because DPPA was considered to be a law of general applicability that regulates private individuals as well as states with respect to the reselling of such information.
Whether one is talking about the principle articulated in South Carolina v. Baker or the principle given expression in Reno v. Cordon each of which in its own way seeks to distinguish between congressional laws which attempt to regulate the manner in which States regulate their own citizens [which, from the perspective of the Supreme Court, are improper or unconstitutional] and congressional laws which seek to place constraints on the structural form of some of the processes used by states as the latter goes about its various activities [which, from the perspective of the Supreme Court, are entirely permissible] there seems to be a certain assumption present in the deliberations and decisions of the Supreme Court in such cases. This assumption revolves about the idea that Congress and the States have a constitutional right to regulate the activities of the people.
I would argue as has been clear throughout the previous 60-plus pages -- that neither Congress nor the States have the right to regulate the people if such a process either undermines, interferes with, restricts, compromises, or abolishes the Ninth and Tenth Amendment rights of the people to regulate their own affairs independent of government intrusion, or if such a regulatory process involves the establishment of a religious-like ideology of public policy, or pushes the people into some form of "involuntary servitude" in relation to government policies. When any of the branches of centralized power (federal, state, or local) seek to enlarge their sphere of control on the basis of an authority which they do not have under the Constitution, there are problems, and these problems have been a blind spot throughout the entire history of the Supreme Court as well as throughout the history of the American republic.
Furthermore, the fact that some people even a majority of the people in a state have consented to cede over their First, Ninth, Tenth, and Thirteenth rights to centralized power does not deprive the remaining people from re-asserting such rights and powers. No individual or group of individuals can cede away the rights of other individuals which have been secured for the latter under the amended Constitution irrespective of what compact the former individual or individuals may have made with local, state, or federal governments -- any more than state governments may extend powers to the federal government which exceed the latter's Constitutional entitlements even though the state governments or its representatives may have consented to such enlargement of federal authority. All of these acts are unconstitutional because to do so would be to abolish the rights of the people as provided under the First, Ninth, Tenth, and Thirteenth amendments, as well as to deny them a truly republican form of government in which people gain direct control over their own lives rather than being mediated by elected representatives who appear to be unwilling to protect the basic rights, powers, liberties, privileges, and immunities of the people.
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In 1787, when Thomas Jefferson was representing the United States in France, he received a letter from James Madison that provided an overview of how the Constitution, as Madison envisioned it, would work:
"In the American Constitution the general authority [of the central government] will be derived entirely from the subordinate authorities [the States]. The Senate will represent the States in their political capacity; the other House will represent the people of the States in their individual capacity. ... The President also derives his appointment from the States [that is, through the system of the Electoral College through which the States elect the President], and is periodically accountable to them. This dependence of the General [central] on the local authorities seems effectually to guard the latter against any dangerous encroachments of the former; whilst the latter, within their respective limits, will be continually sensible of the abridgment of their power, and be stimulated by ambition to resume the surrendered portion of it."
The people are mentioned only once in the foregoing federalist perspective. Moreover, this single reference is in a context in which the people are to be represented by those with power, and how the authorities came to derive their power namely, from the people -- is only alluded to in passing.
As has been pointed out earlier in this essay, Madison was believer in a federalist system which consisted of two levels of government. It was a plan for divvying up power among governments, not people. The people were merely a means to an end through which power was to be taken by governments from the people with a promissory note that supposedly obligated governments to "represent" the people, with the meaning of 'representation' being filled with unending nuances of ambiguity and betrayal.
The Declaration of Independence does not propose a federalist system. The Preamble to the Constitution does not propose a federalist system. The Ninth and Tenth Amendments do not propose a federalist system
although the interpretation of the Ninth and Tenth Amendments by many proponents of federalism as well by many federalist-oriented jurists is to presume that such amendments are but mere truisms and tautologies following from the idea of a republic which theoretically through "representatives," would serve the people faithfully, selflessly, and honestly
which is often not, and sometimes not even usually, the case.
As noted earlier, the idea of an electoral college mentioned in Madison's letter to Jefferson was introduced into the Constitution as a way of protecting the interests of those who sought centralized power
to buffer the authorities against the common people whom seekers of power did not trust even though the most dynamic aspect of democratic governance comes in the form of grand juries and trial juries which consists of nothing but the common people. The people, on the other hand and with considerable good reason, did not trust government of any kind federal, state, or local.
There were some people such as Tom Paine, Samuel Adams, Patrick Henry, George Mason and others who wanted to have protections in place which would serve the interests of the people over against the interests of the state. Indeed, as also has been indicated previously, the first ten amendments are not about protecting states' rights but about protecting the rights of people, and the Tenth amendment, especially, is not contrary to the opinion of many -- primarily about securing states' rights but, rather, about ensuring that the people have constitutional standing.
The question which Madison did not address in his letter to Jefferson is the following. If the powers of the general government are dependent on the local authorities and, therefore, this arrangement supposedly would protect the latter from the encroachment of the former, then, who would protect the people from the encroachment of either of these forms of government? If central government is to be constrained and distrusted, then, centralized government in any form -- including state and local government needs to be included among the objects toward which citizens ought to exhibit a healthy and plentiful skepticism.
It was the amended Constitution which would help to implement this element of skepticism -- including the Tenth Amendment -- which is not primarily intended to take away power from the people but to secure it in two different manners (1) through the activities of the states (if they perform their duties honorably and properly) and (2) through the activities of the people in maintaining constant vigilance against the encroachment of any form of government on the rights, powers, privileges, and immunities of the people with respect to government. As the orator and columnist Wendell Phillips declared in 1852: "Eternal vigilance is the price of liberty."
As of 1997, a number of states, including: Hawaii, Illinois, Missouri, Colorado, and California have passed resolutions which call upon Congress to honor the provisions of the Tenth Amendment, and other states are in the process of doing so. However, there is considerable doubt as to whether any of these states would recognize resolutions authored by the people -- independent of government requesting that both Congress and the state governments honor the Tenth Amendment rights of the people.
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During the 1840s a crisis occurred in Rhode Island which is known as the Dorr Rebellion. At the time of the rebellion, the state constitution consisted of a royal charter which originally had been issued in the 17th century.
According to the Rhode Island constitution, which was based on the earlier royal charter, the vast majority of free, white males in the state existed in an officially sanctioned condition of disenfranchisement (i.e., among other things, they had no right to vote). As a result, there was an attempt on the part those who were disenfranchised to bring about some form of popular convention so that a new constitution might be written in which at least some of those who had been disenfranchised (namely, free white males) would gain some degree of control over their lives.
The Rhode Island charter government declared the activities of the disenfranchised protesters to be acts of insurrection, and, as a result, those who were actively seeking to establish a new constitutional convention were arrested as rebels. One of the leaders of the disenfranchised group namely, Martin Luther -- filed a legal action in federal court which argued that because the Rhode Island state government was not "republican" in nature [i.e., Article IV of the Constitution -- Section 4: "The United States shall guarantee to every State in this Union a Republican Form of Government"], therefore, the arrest of the so-called rebels, as well as all of the other acts of the charter-based government of Rhode Island, were not, according to Luther, constitutionally valid.
In Luther v. Borden (1849) Borden was the state official who had entered the house of Luther and allegedly damaged the property of the latter during a search -- the Supreme Court rejected the idea that the issue of whether a state government was, or was not, republican fell within the jurisdiction of the Supreme Court, maintaining that "it rests with Congress to decide what government is the established one in a State ... as well as its republican character."
If the meaning of what it means to have a republican government is not something which can be adjudicated by the courts, then, this issue certainly is not something which can be adjudicated by Congress alone without taking into consideration the rights of the people under the amended Constitution. In theory, the amended Constitution was supposed to be a negotiated agreement among a federal government, state governments, and the people, and, consequently, Congress, acting on its own, does not have exclusive jurisdiction in the matter of determining the meaning of what constitutes being a republican government.
On the other hand, states, acting on their own, do not have exclusive jurisdiction with respect to determining the meaning of what constitutes being a republican government because states derive their authority from the people. Moreover, the rights and powers of the people to have authority over their own lives has been guaranteed by, among other things, the Ninth and Tenth Amendments provided that the exercise of such rights does not interfere with the expression of similar rights by other individuals.
There are only two general forms of republican government. One form is via the electing or appointing of representatives to work on behalf of the people. The other form of republicanism is via the people representing themselves on their own behalf and largely independently of government.
Not everything which is constitutional is a function of government. Not everything which is legal is a function of government. It is possible for people to act both legally and constitutionally without this being a function of what governments do, or do not, permit
and the Ninth and Tenth Amendments allude to such constitutional, legal, and non-governmental activities.
The fact that in the 1840s there were disenfranchised people in Rhode Island who sought to gather together in a convention to establish a republican form of government is important because, in effect, almost all Americans have been disenfranchised through the persistent denial of their Ninth and Tenth Amendment rights by all branches of government. People have the right to establish a republican form of government which is responsive to their needs, circumstances, and aspirations, and the elected, representative form of republicanism has shown itself to be frequently incapable of serving the people faithfully or with integrity.
Perhaps, among other things, there is a need for a new round of citizen constitutional conventions through which a form of republicanism might be established which secures, protects, and advances all the rights, powers, privileges, immunities, and liberties belonging to the people which are promised by the amended Constitution. Such a form of republicanism would serve as a buffer against the encroachments of governments into the lives of individuals.
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The New/Old Common Sense And The Rights of Human Beings
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