A Question on Federal Regulations

This is my first post on this forum as I am still trying to wade through the wealth of information, but I have a question regarding federal regulations specifically on the oil industry namely the spill in the gulf. I got into a discussion with someone and I didn’t have the knowledge to continue it and I would be interested in hearing Publius, and this group thoughts and what our founders had to say on this.

Basically he stated that we need the federal government to come in and regulate this industry even more and not let the greedy oil barons destroy our environment, and we need tighter regulations and more government control.

I was thinking that we need less government control and more state action to oversee the oil rigs; however I wasn't sure with them in the ocean who has jurisdiction and control? Would the state have rule over the oil rigs or is it the Federal Government? How should this be handled, or who should handle this situation so we can still promote capitalism and the free market yet keep the industry safe?

What do our founders and the Constitution say about this, and is it stated in the constitution? If so where?

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Replies to This Discussion

Permalink Reply by Charlie on May 28, 2010 at 3:25pm

Ha! Jefferson and Hamilton weren't exactly best friends, to say the least. Politics is an old game.

Permalink Reply by Jerry McDaniel on May 28, 2010 at 3:42pm

Publius, I have a copy of the Federalist papers on my hard drive, which I use for reference. I also have a hard back copy on my desk above my computer. I do not consider it infallible, however.

My purpose in this study group is to learn and I assumed that the purpose of "comments " is to exchange ideas and debate. I believe that is the best way to learn. This is the second time you have asked my purpose in this study group, which I interpret as an invitation to leave. Perhaps you should start a fan club rather than a discussion group.

Permalink Reply by Publius Huldah on May 28, 2010 at 5:08pm

It's not an invitation to leave. Rather it's a request that you examine your motives. (But I hasten to add that you need not share with us the results of your inquiries!)

And whether you think the Federalist Papers are "infallible" is simply irrelevant. We look here to the "original intent" of the Constitution. And the Federalist (along with Webster's 1828 Dictionary and Madison's Journal of the Federal Convention) is the best evidence of that "original intent".

The root problem on the federal courts is this: During the late 1800's, with the advent of Pragmatism, our philosophy changed. Americans rejected the concept of a fixed, objective Truth, and took up a new notion that "truth" evolves and is subjective. This way of thinking infected the law schools, and soon, federal judges embraced the notion that the Constitution has no fixed, objective meaning. Instead, they said, it means whatever they say it means.

And THAT, in a nutshell, is how we got to where we are today. We abandoned the Rule of Law - The Constitution; and embraced the Rule of Men - federal judges.

To restore our constitutional republic, we must divest ourselves of the poisonous belief that our "opinions", "understandings", "views", etc. of the Constitution are important! Such subjective interpretations are completely out of place when dealing with The Constitution. Just as they are out of place when dealing with the Laws of Physics, Mathematics, Logic, etc.

And hostility is out of place on this site, as well.

Permalink Reply by Wayne Litchford on May 28, 2010 at 1:41am

Jerry,
I have learned about two things today. First, the existence of State Defense Forces. I learned about this from one of Publius' post.

The second one I learned about from you. I never even knew there were any anti-federalist papers. Much more to study. Thanks Publius, thanks Jerry.

Permalink Reply by Mike Swoverland on May 28, 2010 at 6:55am

I second what Wayne says,

I had no idea there were Anti Federalist papers as well. I feel I know nothing of our great country and our founders, and I have so much to learn and study.

Permalink Reply by Publius Huldah on May 28, 2010 at 7:38am

If your time is at a premium, put your effort on studying The Federalist Papers. They are the most authoritative commentary on the meaning of The Constitution. See the following link for the works which Jefferson & Madison recommended be used in the Study of Law at the University of Virginia:
http://www.wjmi.org/PDFS/UVA1825.pdf
High praise indeed to The Federalist Papers!

Permalink Reply by Publius Huldah on May 28, 2010 at 7:31am

Wayne, the "State Defense Forces" is another name for the "unorganized Militia": that great body of armed citizens who are not in the "organized Militia" (a/k/a "National Guard"). You, I, all of here are included.
On the wall a while ago, Charlie quoted and linked to 10 USC Sec. 311 [i.e., "Title 10, United States Code Section 311] which correctly shows the distinction. http://codes.lp.findlaw.com/uscode/10/A/I/13/311

And in Federalist No. 46 (9th para), Madison the Magnificant says why the citizens at large, i.e., "the Militia", are, and need to be, armed. http://www.foundingfathers.info/federalistpapers/fed46.htm

4 judges on the Supreme Court say in effect that only the "organized Militia" may be armed.

Permalink Reply by Wayne Litchford on May 28, 2010 at 5:31pm

Publius, I agree that there is an organized militia i.e. the National Guard and that there is an unorganized militia who, as you have said are, “that great body of armed citizens who are not in the "organized Militia" (a/k/a "National Guard").

It appears, however, that there is a third and separate entity known as the State Defense Force. These are answerable only to the Governor of the state and cannot be called into active service. http://www.law.cornell.edu/uscode/32/usc_sec_32_00000109----000-.html.

There are currently 22 states with a State Defense Force. In our beloved State of Tennessee, our State Defense Force is called the Tennessee State Guard, as opposed to Tennessee National Guard. Its’ website is at http://www.tnsg.us/.

Wikipedia has an excellent article on the subject complete with insignias and more. http://en.wikipedia.org/wiki/State_Defense_Forces

Permalink Reply by Publius Huldah on May 28, 2010 at 7:21pm

We have the "organized militia" and the "unorganized militia".

The "organized militia" are the people who meet regularly for training. The "unorganized militia" is every armed, able-bodied citizen who is not in the "organized militia".

We're getting hung up on names: Call them whatever you want! For a rose by any other name smells as sweet! Give them whatever insignia you wish.

What's important is not the name & insignia assigned to them, but that this is the body of armed citizens ("organized" and "unorganized") of which James Madison spoke in Federalist No. 46 (9th para)!

Note that Hamilton & Madison made much of the fact that the officers of the "organized Militia" were to be appointed by the States. The reason for that is this: when push comes to shove with the federal government, the officers are expected to remain loyal to their States. When one understand this, it doesn't matter whether they are called "National Guard", "State Guard", "Neighborhood Watch Protectors", etc. B/c even if they are subject to being called up by the federal government, the fact that their officers are appointed by the States is supposed to ensure that they will remain loyal to their STATES (when there is a conflict)!

Permalink Reply by Publius Huldah on May 28, 2010 at 7:47am

Jerry, on the issue of "Rights", see http://publiushuldah.wordpress.com/2009/10/11/is-medical-care-a-right/ It is a short paper which explains 4 views on the nature of and source of Rights, and why you must never say that your Rights come from the Constitution or the Bill of Rights!

Under Art. III, Sec. 2, US Constitution, the federal courts have judicial power over all cases "arising under this Constitution". The Bill of Rights "arises under this Constitution". THAT IS HOW THE FEDERAL COURTS GOT JUDICIAL POWER OVER the exercise of religion, speech, etc.; and how they claim authority to regulate such things! Hamilton was right! We have lost Freedom because of the federal court's exercise of judicial power over our rights.

So you must always insist, as my paper explains, that our Rights pre-date and pre-exist the Constitution. THAT is the founding principle of the Declaration of Independence.

Permalink Reply by Dan Garner on May 24, 2010 at 1:39pm

Here is "The Judge" Andrew Napalitano's take (Sidebar: His new book "Lies the government told you" is an excellent read and relates to this groups topics): While this is not about "oil" it is what Rand Paul was discussing "The private business"

Judge Andrew Napolitano: Racism and Property RightsJudge Andrew Napolitano's Notes
Racism and Property RightsShare
Today at 12:47pm
There is a very legitimate, historically well-grounded argument that the Constitution does not authorize the federal government to enter upon or regulate private property, absent a search warrant issued by a judge (in the case of entering upon) and litigation demonstrating to a jury its right do so and paying for its right to do so (in the case of regulating).

The Fourth Amendment was written in response to the self-permitted entry upon the colonists’ private property by British soldiers, and the Fifth Amendment was written in response the Parliament-authorized seizure of the colonists’ private property by British agents. A seizure can consist in the physical takeover of property or in substantially preventing the owner from using it as he wishes. The Fourth Amendment requires a search warrant from a judge and the Fifth Amendment requires that the government first sue for the right to regulate private property and then pay the landowner for any regulation that diminishes the value of the property. Both amendments have combined to make it very clear that the federal government has no authority to tell private property owners how to use their property, or whom to admit to it, and whom they may exclude from it.

As well, the First Amendment guarantees the right to association; and that means the right not to associate with whomever one chooses on one’s property. The Civil Rights Act of 1964 generally prohibits the states and the federal government from making decisions based on race; and it prohibits federal and state courts from enforcing decisions based on race. This was necessitated because certain states enacted and the federal government even followed Jim Crow laws that legally enshrined blacks as second class citizens for the one hundred years that immediately followed the Civil War. The Act also prohibits private persons from making decisions based on race with respect to their private property when that property has become a public accommodation--one to which the public is generally invited in order to conduct commercial transactions with the property owner.

It is the latter prohibition that Rand Paul has argued puts the nose of the federal camel under the private property owners’ tent. The logic of his argument informs that if the feds can compel a restaurateur or bar owner to admit and serve those whom he prefers not to admit and serve on the basis of race, then the same feds can force lesbian bars to admit straight frat boys; can force a Jewish youth group on a state college to admit Holocaust deniers; can compel the Catholic Church to hire abortionists; and can force daycare centers to permit parents to carry guns in the presence of babies on the private property of the day care facility. It might even be able to compel the Congressional Black Caucus to admit white Members of Congress. The list of potential interferences with the right to use and enjoy private property and the right to associate is potentially endless once one grants the feds the power to enact any regulation not authorized by the Constitution.

No matter how noble the federal purpose, there will be no limit to the prohibitions the feds might impose--like the size of toilet bowls, the strength of water pressure in showers, the wattage of light bulbs, to name a few. Dr. Paul’s argument is based, as well, on the natural right to use and enjoy private property as one wishes, and the essence of that use and enjoyment is the right to exclude whomever one wishes--even the government--from one’s private property. This right is enshrined in the fabric of American values in the Declaration of Independence.

It is odd that Rand Paul should be singled out for his principled defense of property rights when the person who is currently third in line for the Presidency made vast racial arguments in his filibuster against the Civil Rights Act of 1964, and still sits in the Senate. That is the 90 year old ex-KKK member who is currently Senate President Pro-Temp, Sen. Robert Byrd (D-WV).

Permalink Reply by Mike Swoverland on May 24, 2010 at 2:32pm

Thanks everyone for the responses, you have given me much to look at and consider. Its great to be a part of this group there is so much information.

Jerry and Landshark I will check out the articles you mentioned, and thanks Dan, for sharing Judge Napalitano letter I always enjoy listening to him on Glenn Beck.

Wayne I agree with you on how they have done to our Constitution and that they don't even listen to us regarding any bills. And Mike I hope not but the way Obama is going wouldn't surprise me a bit.

Again Thanks everyone for the responses.