Thank you.
Reading the history of the constitutional debate it is clear to me that a federal government was desired by all. Federalists desired centralization and the anti-federalists desired states to hold sway over the federal government.
What I find personally instructive is that we arrived at as good of a document/government as we did, only because both sides of that debate worked together in good faith to arrive at their over-arching goal which was a functioning government. The Articles of Confederation were clearly inadequate.
Our bicameral congress with the House elected by the people based on population and the Senate elected by the State legislatures with each State equal is a prime example. The pre-16th amendment limitation on federal taxes was another such compromise: Congress could levy taxes, but only a head tax. So if the more populous States wanted to push through a tax, it would affect them the most.
Obviously "compromising" (or as is often expected, giving up a little today and then a little more tomorrow) on our principles is a bad thing. But we should recognize the difference between principles and implementation. At GOUtah! we are quite happy to accept less than everything we want this year. We will come back next year and ask for some more. Our over-riding principle is support of RKBA, and not giving up anything we have, nor throwing any segment of the RKBA community under the bus.
Unfortunately, in my opinion, the anti-federalist's fears of a corrupt and overbearing federal government have been realized.
Sadly, that is true in many cases. In some others, however, the federal government has worked to protect individual rights against infringement by the States. The federal Civil Rights legislation is the prime example. There are some federal laws that are protecting freedom of religion/expression from State and local infringement. Most of the limits on police powers, search, and surveillance have come from federal courts it seems. We are now seeing some positive movement from the SCOTUS and federal courts to protect the individual RKBA from State and local infringement.
The 16th and 17th amendments have certainly caused us some real problems. They have allowed a sinister conclusion between congress taxing, borrowing, and printing money and State legislatures readily ceding power in exchange for money they didn't have to tax.
The 14th has and is being applied far too broadly, to cover "rights" that the nation has not decided are even rights.
Brutus penned a letter to a paper regarding the Supreme Court, appearing on January 31, 1788There is no more clearer a example of their apprehension than the Kelo decision.
Brutus' bit about no constitutional power to correct bad court decisions caught my eye. It is common today for people to assume that nothing short of a ConAmd can correct a bad court decision. During the recent presidential election, Newt Gingrich (of all people) put out an essay on the other constitutional means available to the congress and president to check the power of the judiciary. I haven't been able to find the essay on the web for quite some time, though a search for it will readily turn up lots of negative reactions to it.
He notes, correctly in my opinion, that the three branches are co-equal. The SCOTUS is "supreme" only relative to the other courts; it is not supreme over the president or congress. Gingrich noted historic cases of presidents making clear they would not abide certain court decisions (FDR making clear he wouldn't turn over German spies captured in our nation for regular civil trial) and so the court backed off and didn't even attempt to take a case in these instances. He also noted the power of congress to impeach judges. And of congress to dissolve courts and reorganize the court districts when a court (say the 9th circuit) goes so far afield as to offend the people generally. It is also possible for congress to cut the budgets of the courts. Judicial pay cannot be cut, but nothing says we have to pay for enough clerks for them to do any real damage.
These sound like extreme, even illegal or unconstitutional measures to many today. But if used judiciously, are no different than what the courts do routinely. Courts routinely refuse to obey executive branch orders or legislative mandates based on their "co-equal power". So why shouldn't the other branches do likewise in some cases? Impeachment is an inherently political process. Why don't we have sufficient political will to simply fire judges when they show themselves as being grossly hostile to constitutional principles?
Anyway, if I can find a copy of the article to which I can link, I will try to post it. Always something one can disagree with. Bu some good food for thought in it.
Charles
