Constitution Study Group

Comment

Comment by Land Shark aka Bob E on January 20, 2013 at 8:04pm

Help me, PH.  Our Congressman's newsletter came today and this is what they are proposing..."In order to force the Senate to finally pass a budget, this week the House will take up legislation that would require the House and the Senate to pass budgets or their pay will be withheld."  My first thougth is that Congress has no authority to link their pay to performance.  It does say they shall receive a compensation for their services, to be ascertained by Law.  But can they make such a law?

Comment by Publius Huldah on January 19, 2013 at 1:15pm

Well, the concept of "sovereign immunity" is a concept properly used only in litigation.  An English subject can't sue the Queen of England unless she gives her permission.

The concept of Sovereign Immunity had no relevance in this Country until the federal government claimed status as Sovereign and announced the areas in which it would permit us to sue it.

Comment by Mark on January 19, 2013 at 1:06pm

Yes indeed, sovereign immunity from suits IS NOT the same as immunity from constitutional control by the People who established the federal government ! Suppose under some exigency, that an amendment was proposed by the States to alter the taxation clause. Is there ANY political or legal mind who would contend that the federal government was "immune" from such a measure? Of course not; in fact the notion is preposterous. The Constitutional provision for the hypothetical proposition would merely rise or fall on the will of the people/States to ratify such a measure. This example as well as the balance of the Federalist Papers provide ample evidence to support the principle that the whole of political power rests NOT in the federal government but in the people and is exercised, in their collective capacity through the States.

Since the political might and will of these united States rests in and is derived FROM the citizenry, it would be a frivolous contention to assert that under a prescription of immunity from LEGAL SUITS, a mere Act of Congress could absorb and/or subordinate the sovereignty of the States and the collective political power of the People which it represents. We would be wise and prudent NOT to wring such a strained view from a mere legislative Act, but rather to glean the most proper view of the measure; which must have been intended merely to RESTRICT petitions of redress to their proper constitutional channels and remedies, and to PROTECT the federal government (and by implication, the People's resources) from frivolous and contrived legal innovations designed to circumvent the proper applications and general approvals of  State MEMBERS of this union.

Unfortunately, however PH notes a sad truth; that many Americans, both well meaning and misguided alike have made this fatal error in understanding, and perpetuate to the detriment of our fundamental Law, such a distorted assertion entirely contradictory to Republican principles. In spite of the logical conclusion which SHOULD come from at least a modicum of constitutional literacy, Americans both allow and promote a concept which quite literally flies in the face of the Constitutional principles which recognize and foster the flow of political power from the People-to the States- and ultimately in it's constitutionally restricted conveyance to the federal government. The earliest discussions of this group prove these immutable facts. It is advisable therefore, to review the discussions upon the source of rights and the enumerated powers discussions.

Comment by Publius Huldah on January 19, 2013 at 10:27am

Mark, your answer to David is right on all points and is brilliant. 

I will add only this re the doctrine of "Sovereign Immunity":  In the beginning, WE THE PEOPLE were seen as the Sovereigns.

But over time, we permitted "sovereignty" to be transferred from The People to the federal government.  So today, "sovereign immunity" means one can't sue the federal government unless the federal government gives WE THE PEOPLE permission.

Comment by Mark on January 18, 2013 at 12:30pm

David,
Legal solutions are for legal problems. Ours is a POLITICAL problem and therefore a political solution is required. Rather than turn to the court, we should turn instead to the Constitutional remedies of expulsion, impeachment, etc. This of course requires that the people who's law it is, actually exercise their inherent political will within the framework provided. Using the courts as a substitute actually WEAKENS the Constitution. Thus turning to the courts in effort to strengthen the Constitution actually would have the opposite result. Further, such a strategy has the adverse consequence of strengthening the very branch which has been key to usurpation.
We must be careful to use hammers to drive nails and screwdrivers to drive screws. When we use the wrong tool for the job, we ensure disastrous results. The ultimate shield against tyranny is to restore compliance with the Constitution. This protection CANNOT be effected by ballots, letters to USReps, or any other passive actions. Will combats will and power resists power. Thus NULLIFICATION is the existing power to resist and turn back the federal machine. The States and the people HAVE the power to stem the encroachments. The ONLY questions remaining are; do they have the understanding , the wisdom, and the WILL.

Comment by David J Edwards on January 15, 2013 at 1:21am

Dear PH,

In the 60s and 70s, a lot of people sued the Federal government.  Activist Judges allowed some holes to be made in the shield of Federal Sovereign Immunity.  Many suits proceeded farther than ever before in history (which attracted even more suits).  Since then, I seem to recall some of those holes have been patched.  Laying aside for a moment whether those holes were Constitutionally right or wrong, where do the Federal Legislative and Executive branches stand today in terms of Sovereign Immunity?

If holes still exist, how can one find out which departments and offices and are still vulnerable to civil litigation? How much can they be hurt?

Comment by Jon Brunke on January 10, 2013 at 10:04am

Dear Publius,

For the sake of the newer members regarding your comment "I must get people to understand where their rights come from!". I'd like to direct them to your article posted back in October 2010. There they will find your excellent essay on the question.

Do our Rights come from God, the Constitution, the Supreme Court, o...

 

From my point of view understanding the source of our rights is absolutely essential to our long term well being. I would go further and say even prerequisite to most other things one might choose to pursue.

I regard understanding this topic 'absolutely essential' for a couple of reasons. Lacking any pre-existing boundaries there is no limit to legislative excesses save the will of an uninformed and hence unconstrained majority. The Federalists authors make their view of the outcome of unbridled (democratic) popular governments very clear (FP# 10).

In the end we know our form of government was designed to be dependent on the will of the people "As the people are the only legitimate fountain of power" (FP#49). However; in certain respects our Republican form was intended to "refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country" (FP#10). Lacking the latter makes us at least as dangerous as those we elect.

We must (IMHO) understand the source and limits of our rights lest Madison's warnings concerning a failure of check and balance prevail. I'll close with just one example of his conclusion regarding a similar failure between powers(FP#48).

"The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.".

Comment by Publius Huldah on January 9, 2013 at 9:34pm

You are welcome.

I have always found difficulties to be precursors to a great enlightenment.

Comment by Frances Arthur on January 9, 2013 at 5:08pm

YES!! That is very encouraging. If you could see my highlighted copy of The Constitution you would see a tapestry of colors. I thought I was just going overboard in doing this since it was to be a guideline for 7th graders. But it IS the only way to teach them the appropriate balance of powers and how it is supposed to run. What a great use of words to describe this. That is exactly how I will explain this to my students - I don't think they will ever forget such a visual illustration.

And thank you also Jack for the links.

Comment by Jack Coleman on January 9, 2013 at 1:03pm

Frances,

Here are a couple of websites, that may be of some use to you now, or at some future date.

 http://www.barefootsworld.net/constit1.html

http://www.barefootsworld.net/consti16.html

 

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