legaleagle 45 said:
Woody, The judicial power of "the United States" is vested in the federal courts. The judicial power of "Alabama" is not vested in the federal courts. The legislative power is vested in Congress, that does not mean Alabama legislature does not have legislative power. The executive power is vested in the President of the United States. That does not mean the governor of Alabama has no executive power. The USA is a constitutionally limited federal republic, and the state governments are separate soveriegns when operating within areas not specifically denied them by the Constitution. That is what the concept of "federalism" means.
You're smarter than this! The judicial power of the United States is vested in one supreme court and in such inferior courts as Congress may ordain and establish. It doesn't say anything about federal courts. It talks of the Supreme Court and inferior courts.
Only the legislative powers granted in the Constitution are vested in Congress, not all legislative powers.
The executive powers of the president are specifically laid out in the Constitution and those powers do not extend to the executive position of the State of Alabama.
Your last statement is correct.
legaleagle 45 said:
The above is a fact... you may disagree with the decisions of SCOTUS wherein those principles were established, but the fact remains. The BoR's were not held applicable to the states prior to the 14th amendment, and only some of them are applicable to the states today by virtue of the doctorine of "selective incorporation". We can argue all day about whether SCOTUS was or is right in those decisions, but that is what we got and only if SCOTUS overrules its previous decisions or if we pass a constitutional amendment will that be changed.
That's not entirely true. The State of Texas might disagree with you:
"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.
The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859, seven years before the Fourteenth Amendment was proposed, and nine years before it was ratified.
Either way, it won't be necessary to await for the Court to "incorporate" the Second Amendment into the Fourteenth. Congress has that power in Section 5. of the amendment, and all it will take is a simple act of Congress. Know of any congressmen with the xʊʦpæ to introduce such a bill?
Cosmoline said:
Woody, where did you get this idea? I've argued in front of the Alaska Supreme Court several times, and I can assure you no federal court can overrule it when it comes to Alaska state matters unless those matters violate some aspect of federal Constitutional law. This really isn't a matter for reasonable debate. Your position is akin to arguing that there are no state legislatures because the Federal constitution established Congress.
My query, in total:... Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.
Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?
...has a purpose. If those systems are as separate as you'all are saying, I should be able to sue one state in another state, and the Eleventh Amendment wouldn't apply. But, if the judicial power of the United States covers all, the Eleventh Amendment would apply and I would not be able to sue a state I am not a citizen of. As for the "legislative quandary" you and legaleagle 45 are trying to introduce to muddy the waters, see my response to legaleagle 45 above. I know you are smarter than that as well.
I could introduce Kelo v. City of New London, but you would say the Court took the case because it involved a Fifth Amendment issue, even though it started with the condemnation of the property by the City of New London, to convert the property to a higher revenue generating source for the city, a strictly instate issue. I'll add this: In order for the Supreme Court to accept the Kelo case, it had to accept the proceedings in the Connecticut court as if those proceedings were their own. That has to say something about the unity of the entire system. I wonder how many federal cases were cited in the trial before it became a federal issue... I wonder if the Fifth Amendment was cited in the case before it became a federal issue...
Ah, what snares we make when first we try to weave tangled webs. This is giving me a headache.
Cosmoline said:
You and I as private citizens can sue a state government, and will typically do so in state court under the state's tort claims act. The feds would only be involved if I was suing in federal district court alleging that the state government violated some aspect of my federal constitutional rights or in some cases a federal statute.
How would that work in the light(or should I say "darkness"?) of the Eleventh Amendment if it isn't the state I live in?
Given the Sixth Amendment, how could any criminal case not come under the scrutiny of the Supreme Court?
Woody
"The power of those in government to use common sense shall not be infringed. It is imperative, however, to elect people to those positions of power who possess common sense. Remember that at the next election." B.E.Wood
