Original Powers Clarification

[The_Patriot]

I've seen gekaap state several times in a couple of general welfare clause threads that the states have original powers that they have under the Tenth Amendment. What is original power as stated by gekaap?

 

[gekaap]

The states original powers are those powers they were understood to possess prior to the ratification of the constitution. The courts have, at times, addressed specific questions about things falling into the original powers reserved to the states by the 10th amendment. But they certainly haven't made any kind of reference list. One thing that is clear, the states cannot claim to have reserved any power that they never had. In terms to the state's relationship to the federal government, because the federal government did not exist before the ratification of the constitution, the states cannot possibly claim to have reserved any power that would arise from the existence of the federal government. Hence why the SCOTUS rejected the argument from Arkansas that amending the state constitution to establish term limits for Congresspersons and Senators was not a power reserved to the states by the 10th amendment.

One example that could be a rather gray and murky area is immigration laws. It could be reasonably argued that prior to the constitution the states would have naturally had powers to set immigration policies. And if that is so, then they would retain those powers as long as the constitution does not delineate that power to the federal government. The constitution is vague in this point, though, granting to Congress the power to set policies for naturalization, but not mentioning immigration specifically. I have a feeling that when these issues are heard in the courts, immigration will end up being left to the federal government. But that's really just speculation.

 

[The_Patriot]

Well I have an excellent reference list. It's called The Law of Nations and was the first modern form of internation law originally written and approved by western Europe in 1758. This is further backed up by the Declaration of Independence and Treaty of Paris 1783.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.

As one can see that it's the people and the states that can decide for themselves what is an original power and what isn't.

 

[gekaap]

Well I have an excellent reference list. It's called The Law of Nations and was the first modern form of internation law originally written and approved by western Europe in 1758. This is further backed up by the Declaration of Independence and Treaty of Paris 1783.

As one can see that it's the people and the states that can decide for themselves what is an original power and what isn't.

All of this stuff you keep trying to push comes down to one thing: Dissolving the federal constitution of any actual effect or relevance. Why the Hell do you hate the United States so much that you want to see it dissolved? If your arguments are to be considered sound, then not only can any state simply "nullify" any given part of the constitution or federal law they so choose, for whatever whim they so choose, but so could each and evey individual if they didn't want to agree to the same. Your position is not only absurd but extremist. Even Madison explicitly affirmed that no state can nullify any federal law. Yet you continue to maintain such a position. You ignore the courts who are constitutionally charged with deciding such matters of law. You call yourself a patriot, but in truth you are advocating the destruction of our country, this country that I love.

You would have the constitution reduced to nothing more than a piece of paper, without any meaning, without any relevance. What is your alternative? To have enough people collected with enough weapons, and march on D.C. and install your own point of view? It was my folly to have given you the benefit of the doubt that you were actually ready to have a reasonable discussion on the matter and the facts. You are only here to try to spread your propaganda to dissolve our nation into little more than a Western Hemisphere equivalent of the European Union, if it could even be considered to be that much.

In all of this, you can't even offer any shred of support that any given thing was understood to be a power of the states when the constitution was ratified. All you can do is come out with some absurd claim that the people and states can decide at any time they so wish that such and such is a supposed power that OUGHT to belong to the states. Just leave if you hate this country so much. Nobody is forcing you to stay. You're obviously not happy here with the government we have, with the constitution we have. Move along already.

 

[The_Patriot]

All of this stuff you keep trying to push comes down to one thing: Dissolving the federal constitution of any actual effect or relevance. Why the Hell do you hate the United States so much that you want to see it dissolved? If your arguments are to be considered sound, then not only can any state simply "nullify" any given part of the constitution or federal law they so choose, for whatever whim they so choose, but so could each and evey individual if they didn't want to agree to the same. Your position is not only absurd but extremist. Even Madison explicitly affirmed that no state can nullify any federal law. Yet you continue to maintain such a position. You ignore the courts who are constitutionally charged with deciding such matters of law. You call yourself a patriot, but in truth you are advocating the destruction of our country, this country that I love.

You would have the constitution reduced to nothing more than a piece of paper, without any meaning, without any relevance. What is your alternative? To have enough people collected with enough weapons, and march on D.C. and install your own point of view? It was my folly to have given you the benefit of the doubt that you were actually ready to have a reasonable discussion on the matter and the facts. You are only here to try to spread your propaganda to dissolve our nation into little more than a Western Hemisphere equivalent of the European Union, if it could even be considered to be that much.

In all of this, you can't even offer any shred of support that any given thing was understood to be a power of the states when the constitution was ratified. All you can do is come out with some absurd claim that the people and states can decide at any time they so wish that such and such is a supposed power that OUGHT to belong to the states. Just leave if you hate this country so much. Nobody is forcing you to stay. You're obviously not happy here with the government we have, with the constitution we have. Move along already.

I fail to see where you come to the conclusion that I'm for dissolving the federal Constitution or hating the United States. Moving away from your strawman of my actual positions to the actual argument.

States cannot nullify part of the Constitution of the United States. Although I bet you're a strong supporter of the Liberty Laws passed by the states in the 1850's that violated the Fugitive Slave Clause of the Constitution. States can nullify any federal law that is in violation of the Constitution of the United States.

Madison, actually, agrees with my position. The link you provided in another thread to his words on the subject makes it clear that a single state cannot do it, but can do it when it's more than one state performing the nullification.

On the contrary, my position validates and protects the Constitution of the United States. In case you haven't noticed, I'm the one saying that the federal government should get rid of all the unconstitutional federal programs ie programs that have no basis in the Constitution. You'll see me advocate strict adherence to clauses, articles, and sections of the Constitution with zero modern 'interpretation' like the government currently does.

Speaking of facts, it would help if you actually had any. Your reply to my last fact filled power is nothing but a diatribe against a position you imagine that I have. I have presented you with the powers originally held by the states before ratification of the Constitution of the United States by citing international law of the time, the Treaty of Paris 1783 where the King gave his powers to the states, and the Declaration of Independence. You have yet to produce any documentation to support your view and no, your opinion and rants about your view of my position doesn't qualify as facts.

 

[Salem Poor]

You'll see me advocate strict adherence to clauses, articles, and sections of the Constitution with zero modern 'interpretation' like the government currently does.

I always find this argument fascinating because the alleged "modern interpretations" do in fact have a basis in the Constitution if for no other reason than the fact that the Constitution vests the power for such interpretations with Supreme Court as made clear in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). A case that was heard by the Court a mere 15 years after the Constitution's ratification and well within the life time of the Framers who neither voiced any serious objections to the decision nor which prompted any act by the Congress to curtail the Court's decision.

Secondly, the ink had not dried upon the Constitution when actions of subsequent administrations began to pursue policies which one could argue didn't strictly adhere to the Constitution, so I find the argument that such policies are of modern manufacture to be somewhat a canard. Take for example the Louisiana Purchase. Nothing in the Constitution explicitly grants the Federal government the power to purchase new territories for the purpose of expanding the territorial size of the nation, something that concern Thomas Jefferson but not enough to keep him from doing so anyway. As a constitutional absolutist would you argue that because such powers are not explicitly stated, as Jefferson noted, that the purchase of what now constitutes 15 states of the Union was an unconstitutional act?

Thirdly, the argument made by "strict adherents" always seems to be rather selective in nature. If we are to adhere to this "strict adherence to clauses, articles, and sections of the Constitution" what is the basis for is there for establishing a standing Army (something that was uniformly detested by the Framers) or even an Air Force for that matter? Strictly speaking, the Constitution in Article I, §8 grants the federal government the power to:

To provide and maintain a Navy;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

nothing more and nothing less.

Yet it always seems ok, amongst so-called constitutional "strict adherents" that the constitutional interpertations that allow for an standing Army and an Air Force are ok, but an Environmental Protection Agency or a Dept of Education are not. Frankly, it is fine to oppose the establishment of certain government departments, programs, policies or laws on political grounds, but to hide that argument behind some constitutional canard is less than intellectually honest.

 

[The_Patriot]

I always find this argument fascinating because the alleged "modern interpretations" do in fact have a basis in the Constitution if for no other reason than the fact that the Constitution vests the power for such interpretations with Supreme Court as made clear in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). A case that was heard by the Court a mere 15 years after the Constitution's ratification and well within the life time of the Framers who neither voiced any serious objections to the decision nor which prompted any act by the Congress to curtail the Court's decision.

There is no power of interpretation listed in the Constitution for the Supreme Court. The decision of Marbury v. Madison was the Supreme Court seizing power that it shouldn't have and President Jefferson was not exactly happy with it. He said to Abigail Adams in 1804, ""The Constitution... meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." If the power of interpretation was to be given to the Supreme Court then Congress should have passed a law or an amendment granting that power.

Secondly, the ink had not dried upon the Constitution when actions of subsequent administrations began to pursue policies which one could argue didn't strictly adhere to the Constitution, so I find the argument that such policies are of modern manufacture to be somewhat a canard. Take for example the Louisiana Purchase. Nothing in the Constitution explicitly grants the Federal government the power to purchase new territories for the purpose of expanding the territorial size of the nation, something that concern Thomas Jefferson but not enough to keep him from doing so anyway. As a constitutional absolutist would you argue that because such powers are not explicitly stated, as Jefferson noted, that the purchase of what now constitutes 15 states of the Union was an unconstitutional act?

The Louisiana Purchase is a good one to point out, but it does have a basis in the Constitution. I give you Article IV Section III, "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

According to this section, Congress can make all the rules and regulations respecting territories and other property belonging to the United States. Territories eventually become states that can be admitted to the Union of States.

Thirdly, the argument made by "strict adherents" always seems to be rather selective in nature. If we are to adhere to this "strict adherence to clauses, articles, and sections of the Constitution" what is the basis for is there for establishing a standing Army (something that was uniformly detested by the Framers) or even an Air Force for that matter? Strictly speaking, the Constitution in Article I, §8 grants the federal government the power to:

To provide and maintain a Navy;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

nothing more and nothing less.

You missed Article I Section XVIII Clause XII, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;" Therefore, under the Constitution, we can have a standing army during every two year period. The Air Force originally started as part of the Army, but currently since it is independent there should have been an amendment passed to allow for its existence.

Yet it always seems ok, amongst so-called constitutional "strict adherents" that the constitutional interpertations that allow for an standing Army and an Air Force are ok, but an Environmental Protection Agency or a Dept of Education are not. Frankly, it is fine to oppose the establishment of certain government departments, programs, policies or laws on political grounds, but to hide that argument behind some constitutional canard is less than intellectually honest.

At least with the Army and Air Force there is a basis in the Constitution for their existence, but not for the existence of the EPA and Department of Education.

 

[dclx88]

Patriot-

Judicial review and interpretation of laws are different. While there is not an express power delegated to the courts authorizing them to set aside unconstitutional laws, it was an act already being carried out in the colonies. And, if "judicial power shall extend to all cases, in law and equity, arising under this Constitution," then it would seem necessary for judicial review to exist. Moreover, because judicial officers are bound by the constitution, it is unlawful for them to issue a judgment or order which violates the Constitution.

And, the Congress explicitly made provision for judicial review in the Judiciary Act of 1789.

 

[The_Patriot]

Patriot-

Judicial review and interpretation of laws are different. While there is not an express power delegated to the courts authorizing them to set aside unconstitutional laws, it was an act already being carried out in the colonies. And, if "judicial power shall extend to all cases, in law and equity, arising under this Constitution," then it would seem necessary for judicial review to exist. Moreover, because judicial officers are bound by the constitution, it is unlawful for them to issue a judgment or order which violates the Constitution.

And, the Congress explicitly made provision for judicial review in the Judiciary Act of 1789.

Actually, judicial review and interpretation of laws are one in the same. If it's not an enumerated power for the courts then they cannot use it under the Ninth and Tenth Amendments. At no time does the judicial power extend to review/interpretation in the Constitution. Looking at the Judiciary Act of 1789, under Section 25 it states that the federal courts may look at a law if it is constitutional or not, but it lacks the teeth to throw a law out for being unconstitutional. It merely states that the courts must rule in favor of the Constitution of the United States while leaving the offending law in place. This is why the Alien and Sedition Acts of 1798 were never thrown out by the Supreme Court or any lower court. It took Legislative power to remove them through repeal which occurred in 1832. President Thomas Jefferson pardoned all those that were tried or charged for crimes under the act since as President that is a power he has.

 

[American]

I always find this argument fascinating because the alleged "modern interpretations" do in fact have a basis in the Constitution if for no other reason than the fact that the Constitution vests the power for such interpretations with Supreme Court as made clear in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). A case that was heard by the Court a mere 15 years after the Constitution's ratification and well within the life time of the Framers who neither voiced any serious objections to the decision nor which prompted any act by the Congress to curtail the Court's decision.

Secondly, the ink had not dried upon the Constitution when actions of subsequent administrations began to pursue policies which one could argue didn't strictly adhere to the Constitution, so I find the argument that such policies are of modern manufacture to be somewhat a canard. Take for example the Louisiana Purchase. Nothing in the Constitution explicitly grants the Federal government the power to purchase new territories for the purpose of expanding the territorial size of the nation, something that concern Thomas Jefferson but not enough to keep him from doing so anyway. As a constitutional absolutist would you argue that because such powers are not explicitly stated, as Jefferson noted, that the purchase of what now constitutes 15 states of the Union was an unconstitutional act?

Thirdly, the argument made by "strict adherents" always seems to be rather selective in nature. If we are to adhere to this "strict adherence to clauses, articles, and sections of the Constitution" what is the basis for is there for establishing a standing Army (something that was uniformly detested by the Framers) or even an Air Force for that matter? Strictly speaking, the Constitution in Article I, §8 grants the federal government the power to:

To provide and maintain a Navy;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

nothing more and nothing less.

Yet it always seems ok, amongst so-called constitutional "strict adherents" that the constitutional interpertations that allow for an standing Army and an Air Force are ok, but an Environmental Protection Agency or a Dept of Education are not. Frankly, it is fine to oppose the establishment of certain government departments, programs, policies or laws on political grounds, but to hide that argument behind some constitutional canard is less than intellectually honest.

The power to grant statehood is within the Constitution, and the requisites for statehood stated in the Constitution make it clear that only more land acquired would make more states possible. So what Jefferson did could be argued to be constitutional.

 

[The_Patriot]

The power to grant statehood is within the Constitution, and the requisites for statehood stated in the Constitution make it clear that only more land acquired would make more states possible. So what Jefferson did could be argued to be constitutional.

You didn't have to stretch for purchasing land since the Northwest Ordinances were passed by the First Session of Congress in 1789. They were originally passed under the Congress of the Confederation two years prior and the law granted the government to purchase new lands for the sake of adding new states later.

 

[American]

You didn't have to stretch for purchasing land since the Northwest Ordinances were passed by the First Session of Congress in 1789. They were originally passed under the Congress of the Confederation two years prior and the law granted the government to purchase new lands for the sake of adding new states later.

What do you mean by "you"?

 

[The_Patriot]

What do you mean by "you"?

I meant by you as you the person I quoted. I was trying to be helpful with your argument.

 

[American]

I meant by you as you the person I quoted. I was trying to be helpful with your argument.

I don't see how I was stretching.

 

[The_Patriot]

I don't see how I was stretching.

There's no specific power granted to Congress to spend money on the purchase of new territories in the Constitution. However, under the Northwest Ordinance of 1787 and 1789 Congress does have the power to purchase lands through the use of treaties in order to add new states to the Union. Hence this was a stretch for your argument by using Article VI Section III as your basis.

 

[dclx88]

Actually, judicial review and interpretation of laws are one in the same. If it's not an enumerated power for the courts then they cannot use it under the Ninth and Tenth Amendments. At no time does the judicial power extend to review/interpretation in the Constitution. Looking at the Judiciary Act of 1789, under Section 25 it states that the federal courts may look at a law if it is constitutional or not, but it lacks the teeth to throw a law out for being unconstitutional. It merely states that the courts must rule in favor of the Constitution of the United States while leaving the offending law in place. This is why the Alien and Sedition Acts of 1798 were never thrown out by the Supreme Court or any lower court. It took Legislative power to remove them through repeal which occurred in 1832. President Thomas Jefferson pardoned all those that were tried or charged for crimes under the act since as President that is a power he has.

It does not state the Supreme Court must leave the law in place if it is repugnant to the Constitution, Laws, or Treaties of the U.S. What it says is that the Supreme Court may reverse judgments in state courts which work to validate an unconstitutional law. The Supreme Court reverses the judgment of the state court because the law is unconstitutional, thereby invalidating the law. That is judicial review.

And, interpretation is what judges do whenever they take the bench. They can interpret statutes, case law, constitutions, treaties, regulations, executive orders, etc. Judicial review is something far more potent and important than mere interpretation.

 

[The_Patriot]

It does not state the Supreme Court must leave the law in place if it is repugnant to the Constitution, Laws, or Treaties of the U.S. What it says is that the Supreme Court may reverse judgments in state courts which work to validate an unconstitutional law. The Supreme Court reverses the judgment of the state court because the law is unconstitutional, thereby invalidating the law. That is judicial review.

And, interpretation is what judges do whenever they take the bench. They can interpret statutes, case law, constitutions, treaties, regulations, executive orders, etc. Judicial review is something far more potent and important than mere interpretation.

Reversing judgments from lower courts leaves the law in place since it does not strike the law from the record. You are incorrect since that is not judicial review.

Federal judges have no authority to interpret the law under the Constitution of the United States nor under the Judicial Act of 1789. Judicial review is the act of interpreting the law to determine if it is constitutional or not. If the law is unconstitutional it is struck down and is subject to the whims of the presiding judge. Due to this being subjected to the whims of the judge, politics plays a major role in all cases when the judiciary uses judicial review. This is what Chief Justice Marshall had to say on the matter in Marbury v. Madison and he made it clear that he was interpreting the law to establish judicial review.

It is emphatically the province and duty of the Judicial Department [the judicial branch] 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.

Prior to this the federal courts lacked the authority to strike a law down. The only remedy the courts could do was ignore the lower law and follow the higher law like the Constitution of the United States as specified under the Judicial Act of 1789.

As I stated previously, Marshall should have recused himself from the case because he was biased and political. When the commissions were handed out to pack the courts with Federalist judges he was Secretary of State and Chief Justice of the Supreme Court up until Madison took office as Secretary of State. Chief Justice Marshall had a vested interest in the case and was prejudicial against Secretary of State James Madison when the case went before the Supreme Court due to the fact that he was a Federalist appointed to the bench under President John Adams while serving as Secretary of State. Judges are expected to recuse themselves from cases, but Marshall set the pattern that was followed by many other political hacks that are judges. This is why I'm against judicial review/interpretation.

 

[dclx88]

It does not strike the law from what record? When the Supreme Court holds a law unconstitutional, the Court itself does not repeal the legislation. The judgment by the Court prohibits all other inferior courts from adhering their judgments to that law. The law then becomes a nullity because inferior courts are bound by the precedent set by the Supreme Court. That is judicial review and it commonly occurs by reversing a decision by a lower court due to the law's unconstitutionality.

And, while judicial review requires interpretation, not all interpretation is judicial review. It is an inherent power of the Judiciary to interpret laws. That is simply what a court does.

And, if I recall, in Marbury v. Madison, the Court held the controversy on appeal was injusticiable, as it was a political question. I'm not sure why that makes him a political hack since that decision actually benefitted Jefferson.

 

[The_Patriot]

It does not strike the law from what record? When the Supreme Court holds a law unconstitutional, the Court itself does not repeal the legislation. The judgment by the Court prohibits all other inferior courts from adhering their judgments to that law. The law then becomes a nullity because inferior courts are bound by the precedent set by the Supreme Court. That is judicial review and it commonly occurs by reversing a decision by a lower court due to the law's unconstitutionality.

And, while judicial review requires interpretation, not all interpretation is judicial review. It is an inherent power of the Judiciary to interpret laws. That is simply what a court does.

And, if I recall, in Marbury v. Madison, the Court held the controversy on appeal was injusticiable, as it was a political question. I'm not sure why that makes him a political hack since that decision actually benefitted Jefferson.

Prior to Marbury v. Madison, the Supreme Court didn't have the power to strike down laws as being unconstitutional, instead they ignored the lower law and ruled using the higher law.

Again, you're making the assertation without proof and I need more then your opinion. I have provided my proof and your opinion does not trump it.

You'd be wrong since in Marbury v. Madison, Marshall ruled that it indeed was a question that the court could hear and ruled in favor of Marbury while stating that Madison had an obligation to serve the commission to Mr. Marbury. The funny thing is that Marshall was the Secretary of State who wrote the original commissions then was appointed to the Supreme Court as Chief Justice by President John Adams, so he was serving two offices at once from December 1800-March 1801.

 

[dclx88]

Prior to Marbury v. Madison, the Supreme Court didn't have the power to strike down laws as being unconstitutional, instead they ignored the lower law and ruled using the higher law.

Again, you're making the assertation without proof and I need more then your opinion. I have provided my proof and your opinion does not trump it.

You'd be wrong since in Marbury v. Madison, Marshall ruled that it indeed was a question that the court could hear and ruled in favor of Marbury while stating that Madison had an obligation to serve the commission to Mr. Marbury. The funny thing is that Marshall was the Secretary of State who wrote the original commissions then was appointed to the Supreme Court as Chief Justice by President John Adams, so he was serving two offices at once from December 1800-March 1801.

To set aside a law as unconstitutional is ignoring the law which conflicts with a higher law. Thereafter, the law which was set aside is, operationally, a nullity. That is judicial review.

This is not my opinion. This is how judicial review works. Read any case where a law has been held unconstitutional. It's essentially an order binding inferior courts from adhering future judgments to the invalidated law. Or, in other words, an order telling inferior courts to ignore the law. I'm not really sure what you think judicial review is.

And, I was wrong about Marbury v. Madison. The Court held that a statute cannot authorize the Supreme Court to issue writs of mandamus to public officers as that would require original jurisdiction, which the Court did not have in this instance. So, the Court could not order delivery of the commission to Marbury, even though he had a right to the office of justice of the peace.

 

[The_Patriot]

To set aside a law as unconstitutional is ignoring the law which conflicts with a higher law. Thereafter, the law which was set aside is, operationally, a nullity. That is judicial review.

This is not my opinion. This is how judicial review works. Read any case where a law has been held unconstitutional. It's essentially an order binding inferior courts from adhering future judgments to the invalidated law. Or, in other words, an order telling inferior courts to ignore the law. I'm not really sure what you think judicial review is.

And, I was wrong about Marbury v. Madison. The Court held that a statute cannot authorize the Supreme Court to issue writs of mandamus to public officers as that would require original jurisdiction, which the Court did not have in this instance. So, the Court could not order delivery of the commission to Marbury, even though he had a right to the office of justice of the peace.

Ignoring and striking down laws are two completely different things. By ignoring a law it still remains on the books until the legislature can repeal it. Striking down a law is where the court removes the law from the books. That is what judicial review/interpretation have done since Marbury v. Madison. Marbury v. Madison is a very important case since it was the first time that a Chief Justice had a conflict of interest, failed to remove himself from the case, and selectively quoted both the Constitution and the Judicial Act of 1789 to reach his decision while seizing a new power for the courts. In seizing power for judicial review, Chief Justice Marshall failed his oath of office and committed perjury by lying to the people about his oath to uphold and defend the Constitution while bearing true faith to the same.

 

[rocket88]

States cannot nullify part of the Constitution of the United States. Although I bet you're a strong supporter of the Liberty Laws passed by the states in the 1850's that violated the Fugitive Slave Clause of the Constitution. States can nullify any federal law that is in violation of the Constitution of the United States.

Madison, actually, agrees with my position. The link you provided in another thread to his words on the subject makes it clear that a single state cannot do it, but can do it when it's more than one state performing the nullification.

The states cannot nullify Federal law. There was a little thing called the Civil War that was fought over that issue (in part). So whatever you may think, Abraham Lincoln thought differently.

The Louisiana Purchase is a good one to point out, but it does have a basis in the Constitution. I give you Article IV Section III, "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Nowhere does that clause give Jefferson the authority to purchase large tracts of land from France. He made a good decision, but it's hard to argue that the Constitution explicitly gave him the authority to do so. In fact, one could make the case that the Louisiana Purchase violated Article IV Section III -- most of the original colonies had claims west of the Appalachains, and the original charters of of some of the colonies (Virginia being a notable example) extended west indefinitely. One could assume all the way to the Pacific Ocean. Another tidbit from the Civil War era: What about the formation of the state of West Virginia? Do you think that the existence of West Virginia is unconstitutional?

 

[dclx88]

Ignoring and striking down laws are two completely different things. By ignoring a law it still remains on the books until the legislature can repeal it. Striking down a law is where the court removes the law from the books. That is what judicial review/interpretation have done since Marbury v. Madison. Marbury v. Madison is a very important case since it was the first time that a Chief Justice had a conflict of interest, failed to remove himself from the case, and selectively quoted both the Constitution and the Judicial Act of 1789 to reach his decision while seizing a new power for the courts. In seizing power for judicial review, Chief Justice Marshall failed his oath of office and committed perjury by lying to the people about his oath to uphold and defend the Constitution while bearing true faith to the same.

The Court does not strike legislation from the books. That is a legislative power only the legislature may exercise. The Court does precisely what I've said it does in judicial review.

And, this was not the first time judicial review was used by federal courts to hold a law unconstitutional. Even in Marbury v. Madison, Marshall mentions that a circuit court had done precisely the same thing. Marshall did not seize a new power for the Judiciary. Rather, he affirmed the Judiciary's obligation to conform their decisions to the Constitution, and provided bases in the Constitution for such action.

Read Art. III's Vesting Clause. It says, "[t]he 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." Nowhere in Art. III are the judicial powers of the United States enumerated in Art. III, unlike executive and legislative powers in Arts. II and I, respectively. So, the Judiciary have these inherent judicial powers, such judicial powers which existed in the Judiciary prior to the ratification of the Constitution. One of those powers was judicial review, as it was put into practice even when the United States were just colonies.

 

[dclx88]

I will show you that laws remain on the statute books, even after the Supreme Court holds them unconstitutional:

"Homosexual conduct" is still on the books as a crime in Texas eight years after the U.S. Supreme Court ruled the law unconstitutional.

But legislation to bring Texas law into line with the U.S. Constitution faces a rough ride through the Legislature , which traditionally has been reluctant to extend legal protections to people based on their sexual orientation.

Although Texas' so-called sodomy law cannot be enforced legally, civil rights advocates say it should be removed from the books because it creates a climate favorable to bullying, gay-bashing and hate crimes.

"By leaving it on the books, you create the potential for abuse," said Jim Harrington, director of the Texas Civil Rights Project , which is representing two gay men who were kicked out of an El Paso restaurant in 2009 for kissing in public.

In 2003, the U.S. Supreme Court ruled that Texas could not stop people of the same sex from engaging in sexual activity. Today, the Texas Penal Code still states that it is a Class C misdemeanor to engage in "deviate sexual intercourse with another individual of the same sex" — just after a line explaining that the law is unconstitutional.

Source: Bills would take Texas' illegal sodomy ban off books

As I said, judicial review, when used to hold a law as unconstitutional, is basically an order issued to inferior courts, both federal and state, prohibiting them from following a law that is repugnant to the U.S. Constitution.

 

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There's no specific power granted to Congress to spend money on the purchase of new territories in the Constitution. However, under the Northwest Ordinance of 1787 and 1789 Congress does have the power to purchase lands through the use of treaties in order to add new states to the Union. Hence this was a stretch for your argument by using Article VI Section III as your basis.

Laws necessary and proper? How would you add a state in the first place. Well you'd have to have land with people on it, right. How do you obtain the land? I contend the Founders were already considering other potential states forming from land in the Ohio region, and maybe south of Georgia. Constitutional rules say it has to be new land, not already in a state.