[cropcirclewalker]

I don't know how else to ask the question.........

On my bicycle ride I pondered the quandary of how seemingly honorable employees of .gov could rationalize doing unconstitutional deeds. I came to the conclusion there is a balance that must be maintained by them in order to keep their jobs.

This is a pro gun forum. When some of our .gov employees say that 2a permits reasonable restrictions it is because they are faced with the choice between quitting over principle or rationalizing that if the supremes let some of these laws stand, then they must be OK.

They say to themselves, "locking up this guy because he made a false statement on a 4473 seems wrong, since there should be no infringement in the first place. The 4473 should not even exist." (Kitten stompers don't apply here)

This is all a defense mechanism which allows them to sleep nights.

Their personal opinions (which are probably correct) are fallible.

Mortals are fallible. Thus they will permit the opinions of the supremes to reign, since, the supremes are infallible.

Trouble is, the supremes are mortal and just like a million monkeys with a million typewriters will eventually type the works of Shakespeare, the supremes will eventually make a mistake. Can you say, "Dred Scott?"

I try to believe that ATF does not LOOK for agents that like to stomp kittens, but that a few slip through the psych testing. I like to believe that .gov employees are trying to do a good job and when faced with the obvious contradictions between law and the constitution they rationalize and say to themselves, "Hey, the supremes said it was OK."

I am essentially an unemployable person. I have quit more than 2 jobs over my perception of my employers non ethical activities. I, however, am blessed to be in a line of work which permits me to be self employed.

.gov employees which have mouths to feed and bills to pay have to make the choice between what is constitutional and what is extraconstitutional and when the 2 collide, they let the supremes take the heat.

Although I understand WHY they do it, I will not let them off the hook.

Like in Article 92 of the UCMJ, just because it's an order doesn't mean it has to be obeyed. They gotta decide whether it's lawful. It's their DUTY to disobey an unlawful order.

Trouble is...there is nothing in .gov rules which permit or require disobeying the orders just because they are unconstitutional. They have a tough row to hoe. I understand.

I could never be a .gov employee. I could not sell my soul for a buck.

[Hkmp5sd]

Trouble is, the supremes are mortal and just like a million monkeys with a million typewriters will eventually type the works of Shakespeare, the supremes will eventually make a mistake. Can you say, "Dred Scott?"

SCOTUS makes tons of mistakes and Dred Scott is FAR from the worst. I recommend reading a recently released book called Men In Black: How The Supreme Court Is Destroying America by Mark R. Levin.

For a deeper look into decisions made by SCOTUS, The Tempting of America: The Political Seduction of the Law by Robert Bork is another good read.

[beerslurpy]

Yeah, lately I have been realizing that the SCOTUS (over US history as a whole) has a tendency to rule less from the standpoint of "which is the correct interpretation of the law" but "what is the outcome we like the most today". They are very far from idealists. In fact, they seem to use the supremacy of the constitution as a means to overrule laws and create new ones at will. Even worse, they are inconsistent (compare Lopez with Raich).

Unfortunately this results in cases where
-they declare the war on drugs constitutional because doing otherwise would result in over a million prisoners being released into the population at large and a 50 billion dollar gap in the US LE and prison industries.
-they decided that blacks are not citizens because ending slavery would result in millions of blacks who "werent ready for citizenship" and a multimillion dollar gap in the southern economy
-they decide that interstate commerce means "everything either interstate or commerce or even remotely releated to human activity" because not doing so would unemploy millions of unconstitutional fedgov workers and free millions of prisoners held because of unconstitutional federal laws.

[joab]

the supremes will eventually make a mistake. Can you say, "Dred Scott?" Can you say Kelo or campaign finance reform

This country is bound by rule of law,something that we have held up proudly for generations.

The supremes are the final word on the interpretation of the law, something we have accepted for generations.

Until something like the above mentioned stupidities comes along and opens our eyes, for a little while, to the fact that they are just mere mortals that do not have the infallibility of the Pope.

Then we complain and are righteous indignant, for a little while, until they make a ruling we like or until we find that their rulings really don't personally effect our day to day lives too much.
Then their rulings are accepted as law, which they are.

Kinda sad, in a sad kinda way

[c_yeager]

Actually Dred Scott is a perfect example of why the court is doing exactly what you are complaining about. The Dred Scott ruling, morally repugnant as it was, was perfectly in tune with the law. The constitution allowed for black people to be defined as less than human (3/5ths compromise) and the law of the states in question defined slaves as property. In other words the Dred Scott ruling was the CORRECT ruling as far as a literal interpretation of the constitution is concerned.

Do you realize that you are complaining about an activist court, and then citing a case where you think they *should* have been activist as support? :scrutiny:

The Dred Scott case is actually a very strong argument for why the court should occassionaly rule outside of constitutional consideration (im not saying i agree with this BTW).

[beerslurpy]

No, I dont beleive the text of the constitution specifically relegated black people to second class citizens. Slavery was implicitly allowed because it already existed, but the fact that the slaves were black was merely a coincidence.

Dont forget that many of the attacks against slavery that occurred in this country were on the basis that slavery denied people the rights that free men had. The supreme court (and many southern states) simply chose to embrace the concept of certain people not being born equal and instead remaining the property of others. Why? Because it would have been too inconvenient for slaveowners and too risky for soceity at large to have freed slaves running around.

I think it is kind of ridiculous that God would create men and endow them with inalienable rights, but only on the condition that they avoid being enslaved first. If a man cannot preserve his freedom against enslavement, are his rights to life liberty and property automatically forfeit? Or is the act of enslaving him a breach of his right to liberty and property? This should not have been a tricky question for the SCOTUS. Instead of honestly interpreting the constitution, the SCOTUS chose to dance on the head of a pin and justify the ownership of men by other men.

My point has repeatedly been that activist judges are not the problem, judges without respect for natural law are the problem. The other main problem is judges who favor precedent above the written letter of the law.

[c_yeager]

No, I dont beleive the text of the constitution specifically relegated black people to second class citizens. Slavery was implicitly allowed because it already existed, but the fact that the slaves were black was merely a coincidence.

YOur right in that the 3/5th compromise sis not specify that black people were the only class considered to be slaves. But that doesnt change the fact that slaves were not counted as full human beings, and that this was defined in the constitution itself.

Here the quote from Article 1 section 2 of the U.S. constitution:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

This clearly identifies that there are "Free persons" and persons who are NOT free persons. THose who are not "free" are counted as only 3/5th of a regular person.

So tell me again how the Supreme Court overstepped its bounds when they ruled that a slave did not stop being a slave because he rode on a train.

[publius]

James Madison, Federalist 45 (http://thomas.loc.gov/home/histdox/fed_45.html):

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States. If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS. The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained."


I believe that if Mr. Madison knew that one day, the Supreme Court would decide that a homegrown cannabis plant (http://straylight.law.cornell.edu/supct/html/03-1454.ZS.html) or machine gun (http://www.supremecourtus.gov/docket/04-617.htm) for personal consumption was interstate commerce, and thus a federal concern, and not among "the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State," he might have entertained a few more apprehensions about that new power, maybe made it a bit more clear that interstate means, well, interstate, and commerce means (this seems so darn obvious) commerce.

[Wiley]

Publius: An even better example than hemp of the mis-application of the comerce clause, is Wheat grown on private property, for family consumption.

[publius]

That case from 1942 was Wickard vs Filburn, Wiley, and it was the reasoning upheld recently in Gonzalez vs Raich, and then applied to guns immediately afterward in US vs Stewart.

In the Wickard case, it was argued that Congress was attempting to control wheat production, and thus the price of wheat. Because Mr. Wickard's personal wheat crop, if everyone had one, would have an aggregate effect on the price of wheat, growing such a crop could be regulated by Congress.

I'm wondering what Mr. Jefferson would have to say about all that?
“Were we directed from Washington when to sow, and when to reap, we should soon want bread.” Thomas Jefferson
In any case, in Raich, it was argued that because Congress was attempting to prohibit cannabis production, Raich's personal cannabis crop, if all patients with a doctor's prescription were allowed to have one, would wind up expanding the already vast black market in cannabis. Thus, a homegrown cannabis plant for personal consumption becomes regulated by Congress under the commerce clause, and not by the State of California under their medical laws.

It's the same reasoning, I just used the more recent example, and the one which was, as I pointed out, applied to guns.

[c_yeager]

Publius: An even better example than hemp of the mis-application of the comerce clause, is Wheat grown on private property, for family consumption.

On a related note, how about producing liquer in a still for one's own consumption.

[publius]

Well, there is some evidence that at least some of the founders thought that taxing sales of alcoholic beverages could be a source of federal revenue, and would tend to diminish consumption.

Alexander Hamilton, Federalist 12 (http://thomas.loc.gov/home/histdox/fed_12.html):
Hitherto, I believe, it may safely be asserted, that these duties have not upon an average exceeded in any State three per cent. In France they are estimated to be about fifteen per cent., and in Britain they exceed this proportion.1 There seems to be nothing to hinder their being increased in this country to at least treble their present amount. The single article of ardent spirits, under federal regulation, might be made to furnish a considerable revenue. Upon a ratio to the importation into this State, the whole quantity imported into the United States may be estimated at four millions of gallons; which, at a shilling per gallon, would produce two hundred thousand pounds. That article would well bear this rate of duty; and if it should tend to diminish the consumption of it, such an effect would be equally favorable to the agriculture, to the economy, to the morals, and to the health of the society. There is, perhaps, nothing so much a subject of national extravagance as these spirits.
That same evidence shows no intent to use the power to tax, let alone the commerce clause, to prohibit private production of alcohol, as such a prohibition would have ended any tax revenue from that source.

[The Real Hawkeye]

Yeah, lately I have been realizing that the SCOTUS (over US history as a whole) has a tendency to rule less from the standpoint of "which is the correct interpretation of the law" but "what is the outcome we like the most today". They are very far from idealists. In fact, they seem to use the supremacy of the constitution as a means to overrule laws and create new ones at will. Even worse, they are inconsistent (compare Lopez with Raich).

Unfortunately this results in cases where
-they declare the war on drugs constitutional because doing otherwise would result in over a million prisoners being released into the population at large and a 50 billion dollar gap in the US LE and prison industries.
-they decided that blacks are not citizens because ending slavery would result in millions of blacks who "werent ready for citizenship" and a multimillion dollar gap in the southern economy
-they decide that interstate commerce means "everything either interstate or commerce or even remotely releated to human activity" because not doing so would unemploy millions of unconstitutional fedgov workers and free millions of prisoners held because of unconstitutional federal laws.Beerslurpy, I contend that the reason this system doesn't work is because it is not the system established by the Founders. That system worked pretty darn well. What we have is a totally different system. You cannot take a complex machine, and start removing major components, and expect that the machine will still do what it was designed to do. Our system was originally ingeniously designed to balance power in such a way that one part of the system would never have complete control of the whole. All Federal branches would check each others power as to each other, but the States were to check the Federal Government as a whole, making sure it stuck to the rule of law the States, as a body, created for it. This was done via Article I, Section 3.

The Senate represented the interests of State Governments, not those of the scattered individuals living in the States (who already had representation via their elected US Representatives, as spelled out in Section 2 of Article I), and it was the Senate's job to enforce Amendment Ten (I say "was" for a reason. Read on.). State Governments have an interest in making sure that the Federal Government does not usurp powers not delegated to it, and which therefore belong properly to the States and the people. That's why Section 3 makes Senators representatives of State Governments (i.e., answerable only to the Government of their respective States), i.e., to be a check on the unconstitutional growth and usurpation of Federal power. This check, however, was done away with by the Seventeenth Amendment. A major component of the great and intricately balanced machine of our system of government was simply removed. Now the States have no check at all on the growth and usurpation of Federal power. The Federal Government as a whole is now entirely unchecked. Any government with unchecked power will eventually - inevitably - usurp powers not delegated to it, until it possess all power. It is just the nature of governments (not to mention human beings). The Founders understood this but, somewhere along the way, we forgot this lesson.

The Supreme Court was never supposed to be a check on the Federal Government as a whole, i.e., as against the States, since it is itself a part of that selfsame Federal Government. The farmer doesn't empower a council of foxes to make decisions about hen house security, and the Framers didn't put the Supreme Court in charge of preventing usurpations of the Federal Government, except with regard to usurpations of judicial functions only. If the Supreme Court "interprets" the Commerce Clause to mean that the Federal Government can regulate everything, who is there in our present system who has an interest in checking this usurpation. Certainly no one in the Federal Government. The extent to which members of the Federal Government restrain themselves in this area is attributed to personal integrity alone. The only government entity in our system truly interested in checking this would, of course, be the State Governments, but they no longer have the power to do so, which is 90% of why we find ourselves in the mess we are in.

States had to be completely stripped of represenation in the Federal Government. Otherwise, the work begun in 1861 could not have been brought to completion. States are now subject components of the national government, rather than the masters of it. Frankenstien's monster has broken its chains and has its gargantuan hands around the good doctor's throat as we speak, and God help the townsfolk once he's finished with him.

[Werewolf]

FWIW and (the obligatory) IMO - the problem with the Supremes today is that they've stopped protecting the people and have started protecting the government (meaning the status quo or enhancing its power to maintain social stability).

Case in point: Hibble, Raich, the recent eminent domain ruling, Stewart, their ruling on campaign finance reform; the list goes on.

I believe that in some cases they rule the way they do or refuse to grant certiorri(sp?) because they know that any ruling they make would so fundamentally change our society and that the possibility of major social upheaval is so high that doing the right thing stops being an option. For example - imagine if most prior restraint laws were immediately struck from the books, or gun control laws were eliminated, drug laws were eliminated, the police were found to actually have a basic responsibility to protect individuals or the 4th meant what it says etc, etc etc.

The social upheaval resulting from any of the above being implemented would/could be catastrophic. We're too far into it and backing out now isn't an option. The supremes know this. Too bad for us.

[dpesec]

Werewolf, I think you're right. In the old days this wasn't the case. Remember Miranda? Then again I remember in the later part of the 19th century when the SCOTUS overthrew the income tax.
Today too many people have become do dependant on the government any change could cause major civil unresst.

Perhaps this might change, I think when Hell freezes over.

[cropcirclewalker]

Wow!

Thanks youse guys! I was expecting to come down and see a padlock on this string this morning. You all are really pulling through.

How do we fix it, since we have lost control?

Some say to write our congresscritters.........They are part of the problem.

This roof top babble is not likely, at least in my lifetime.

I keep thinking of how we corrected the 18 amendment......Jury nullification

and we fer sure need to repeal the direct election of Senators. (if the horse ever gets the bitt out of his teeth. ;)

[beerslurpy]

I think hawkeye raised a really important point about the 17th amendment.

Coupled with the advent of radio and TV it lead to the concept of snowing the electorate and to about 70 years of uncontested malfeasance on the part of Senators who no longer represented their States.

Get rid of the 17th and it would be a sea change in our government. You might even see impeachments and you would definitely see a lot less federal interference in state matters. Look at the amicus briefs in Raich- conservative and liberal states all agree that the federal government interferes too much.