by Timothy Baldwin, Esq.

From Chuck Baldwin: Note: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE

The arguments against the power of the states to arrest federal tyranny are as predictable as the sun coming up in the morning, and they are as philosophical in nature as the Declaration of Independence. One of the most commonly used arguments against such a State power is the United States Supreme Court (US S CT) dicta opinion in Marbury v. Madison in 1803, written by Chief Justice John Marshall. Before getting into the misunderstandings and misapplications of that infamous decision, we must first recognize the source and character of Marshall’s opinion. As Marshall himself admitted that the US is to be a country of “laws, not men,” we must establish that Marshall’s opinion does not equate to the “supreme law of the land” which the states and individuals are bound to obey. If our submission only requires that the US S CT speak, then we do not live as freemen, but as slaves. Continue Reading

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Rob Natelson, recognized national expert on the framing and adoption of the United States Constitution, and Professor of Constitutional Law, Legal History, and Advanced Constitutional Law at the University of Montana School of Law talks about how the Supreme Court allowed the Federal Government in the late 1930s to drastically change the way the US Constitution is interpreted, how the Court initially tried to hold a line against FDRs expansion of power but changed position even before the infamous court-packing scheme, how the Commerce and Taxing powers were almost turned upside down,  the Necessary and Proper clause and incidental powers, the false claim that the Supreme Court is conservative, how bad precedent leads to more bad court rulings, state elections as critical for Constitutional activists, and more.

Editor’s Note: Professor Natelson notes one error in the podcast:  He should have given Justice Breyer’s first name as “Stephen.”

Mentioned in this Show:

United States v Darby Lumber

Wickard v Filburn

The Heritage Guide to the Constitution

Rob’s Page at the University of Montana

Scholarship of the Original Understanding of the Constitution

More from Rob Natelson:

Is ObamaCare Constitutional?

Claiming Almost Everything is “Commerce”

The New King George

It’s the People’s Right!

Podcast: Understanding Federalism

by Timothy Baldwin, Esq.

From Chuck Baldwin: Note: My son, Tim, writes today’s column. He is an attorney who received his Juris Doctor degree from Cumberland School of Law in Birmingham, Alabama. He is a former prosecutor for the Florida State Attorney’s Office and now owns his own private law practice. He is author of a new book, published soon by Agrapha Publishing, entitled FREEDOM FOR A CHANGE.

Yes, yes, we have all heard the remarks from those who would call themselves conservative, libertarian or the like concerning the nomination and now swearing-in of Sonia Sotomayor to the United States Supreme Court, which took place on August 8, 2009.

Yes, yes, books have been written by those conservative and libertarian editorialists and authors who have explained to us that the United States Supreme Court (US S CT) is “out of control” and how we must elect “conservative” Presidents to appoint “conservative” judges. Ironically, this infatuation with the federal government, and specifically with the judicial branch of the federal government, has actually (at least in part) created the growing enslavement of the people of these States United.

Certainly we should care about who sits on the US S CT bench. However, the time has come in our Confederate Republic (the USA) to acknowledge and understand that the power to govern ourselves justly and constitutionally is in the hands of the people of the several states of America–NOT in the hands of the branches of federal government. Continue Reading

by David Gordon, Mises.org

[Courts and Congress: America's Unwritten Constitution. By William J. Quirk. Transaction Publishers, 2008. Xviii + 312 pages.]

Courts and Congress defends a revolutionary thesis. If asked, who has the final say in our government on the meaning of the Constitution, most people would say, the Supreme Court. The Court itself agrees: in the famous Planned Parenthood v. Casey (1992) decision, it declared that it could not consider reversing Roe v. Wade (1973), because the American people had come to look to the Court as their guide.

William Quirk, one of the most original Constitutional theorists of our time, challenges this view. No, he does not challenge judicial review, the power of the Court to find laws unconstitutional: this he finds solidly based. He criticizes the Court for abuses of interpretation; but so long as the Court sticks to the language of the document, all is well.

So far, you may ask, what is original about that? Do not many other critics of the Court attack its at-times-bizarre interpretive methods? Quirk’s originality rests in his taking literally, and emphasizing, a part of the Constitution that most writers ignore. According to Article III, Section 2, the jurisdiction of the Supreme Court lies almost totally up to Congress. The Court has original jurisdiction only in cases involving disputes among the states and in cases where foreign diplomats are a party. Its appellate jurisdiction is subject to whatever “rules and exceptions” Congress chooses to make. So far as lower federal courts are concerned, they stand completely at the mercy of Congress. If it wished to do so, Congress could abolish the lower federal courts altogether.

Thus, if Congress does not like the decision of the Court in Roe v Wade and its successor cases, it can take away the right of the Court to hear any cases on appeal that involve abortion. True enough, that would still leave the decision on the books, and it would presumably be binding on other courts; but in practice, it might be difficult to sustain it. If a court decided to allow restrictions on Roe contrary to the mandate of the Supreme Court, this ruling could not then be appealed to that court for reversal. Congress might, by getting rid of the federal courts completely, leave abortion entirely in the hands of the state courts. In like fashion, of course, for other controversial areas. Quirk points out that until 1875, the lower federal courts did not have the right to hear appeals from state court decisions about federal law. By using its Article III powers, Congress could radically reshape constitutional law.

One might at first think that Quirk has made a mistake. Is he not blowing out of proportion a passage that really deals only with setting up rules of procedure for the federal courts? History buffs will be aware of the famous case of ex parte McCardle (1868), in which the Reconstruction Congress withdrew the right of the Court to hear a case, while that very case was pending before the Court; but is not this use of Article III an aberration? Surely, like the famous Tenure of Office Act, this was an example of how extreme that Congress was, rather than a guide to sound constitutional practice.

To those inclined to think so, the ruling of the Court in McCardle will come as a surprise. It fully recognized the right of Congress to withdraw its jurisdiction. The Court said,

We are not at liberty to inquire into the motives of the legislature. We can only examine its powers under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words… It is quite clear, therefore, that this court cannot proceed to pass judgment in this case, for it no longer has jurisdiction of the appeal; and the judicial duty is not less fully performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. (pp. 289–90)

It is Quirk’s great merit to show that Congress’s power to limit the federal courts is a recurring theme in American history. Quirk is a Jeffersonian; and he points out that Jefferson and his followers feared the potential for abuse in federal judicial power and acted to curb it. The Federalists had secured the appointment of a number of Federalist judges in the Judiciary Act of 1801.

The Republicans replied to the Judiciary Act of 1801 by repealing it in the Judiciary Act of 1802. The 1802 act repealed “federal question” jurisdiction. It stripped the new judges of their offices. (p. 178)

Congressional power under Article III is far from a theoretical question. Congress has in fact acted to limit the federal courts in several notable instances. By the early 1930s, a majority of Congress had come to think that the courts often acted in an improperly antilabor way by issuing injunctions that forbade unions to strike. Employers who claimed that unions were a threat to their property did not have to go through the long and involved process of a civil suit. Once an injunction against a union had been issued, the court could instead hold the union in contempt and inflict civil and criminal penalties. Accordingly, in the Norris-LaGuardia Act (continually misspelled in the book), Congress, exercising its Article III authority, took away the power of federal courts to issue injunctions in labor cases. An interesting question, not discussed in the book, is why Franklin Roosevelt did not resort to this tactic in his disputes with the Court.

Again, in the 1950s, there was a Congressional outcry against several Supreme Court decisions that were deemed unduly protective of the civil liberties of members of the Communist Party. Senator William Jenner introduced a bill to withdraw the appellate jurisdiction of the Court in such cases; and although the measure failed to pass, its constitutionality was not seriously challenged. Opponents, such as Senator Jacob Javits of New York, claimed rather that the bill was unwise. One eminent law professor, Arthur J. Freund, who opposed the Jenner Bill, responded in this way when asked whether it was constitutional to limit the Supreme Court’s jurisdiction: “You can’t challenge the constitutionality of a constitutional provision” (p. 234).

The famous Engel v. Vitale (1962) decision, which held recitation by a public school teacher of a prayer in class to be unconstitutional, and the failure of a proposed constitutional amendment to overturn it to gain sufficient votes, aroused Senator Jesse Helms in 1979 to propose a “stripper” bill, as this sort of legislation is called, but it also failed of passage. In a number of instances, though, Congress has in fact stripped the federal courts of jurisdiction, and several such laws remain on the books today.

In recent years, a number of scholars have maintained that the Article III power of Congress is limited and that it cannot, e.g., bring it about that a constitutionally protected right is withdrawn from judicial scrutiny. Supporters of this position can appeal to the weighty authority of Justice Story, who thought that Congress was required to extend the full “judicial power” mentioned in the Constitution to the federal courts. Quirk successfully shows, though, that there is an extremely strong case that Congress does have the power to strip the federal courts of jurisdiction.

If Congress has the power, should it use it? Would not doing so remove a necessary check on Congress? Quirk does not think so. In his view, again a Jeffersonian one, Congress is the dominant branch of the American government; unlike the courts, it is directly subject to the will of the people. If one objects that majority rule can deprive a minority of its rights, Quirk responds that rights are safer with the people than with unelected courts. Murray Rothbard, by the way, thought much the same, especially in his later years.

To the argument that stripper bills would introduce chaos into the judicial system, since without appeal to a highest court, there would be no guarantee of uniform rulings in different jurisdictions, Quirk again has an answer. Is not experimentation desirable? Why should we not have varying rules, suited to local conditions?

If Congress has such power over the Supreme Court, why is it reluctant to use it when the Court abuses the Constitution? Quirk locates the answer in what he terms The Happy Convention. The principal aim of most members of Congress is to secure reelection to office. In order to do this, Congress avoids controversial moral and cultural issues whenever possible. Far better to have the Supreme Court, an unelected body that voters cannot unseat, take the blame for unpopular decisions.

Similarly, the Constitution clearly gives Congress the sole power to declare war. But, wishing to avoid blame should a war go badly, Congress has abdicated its power to the president. It is better, Congress thinks, for him to take the blame for Vietnam or Iraq. By its own lights, the Congressional policy has been remarkably successful. Most incumbents are reelected. The cost, though, is a severe one. Our actual Constitution, one of congressional preeminence, has been replaced by the Happy Convention, in which the president and Supreme Court have supplanted Congress. No Jeffersonian can accept this.

David Gordon covers new books in economics, politics, philosophy, and law for The Mises Review, the quarterly review of literature in the social sciences, published since 1995 by the Mises Institute. He is author of The Essential Rothbard, available in the Mises Store.

This review originally appeared in The Mises Review, Fall 2008.

by Patrick Krey, The New American

There are few topics that can divide people who are normally ideological bedfellows like the legal doctrine of the “incorporation” of the Bill of Rights against the states and the Second Amendment. This subject is rearing its head again with the upcoming appointment of a new Supreme Court justice as well as federal courts’ recent conflicting opinions in regards to the Second Amendment.

The Wall Street Journal reports that on June 2nd, “A federal appeals court in Chicago ruled … that the Second Amendment doesn’t bar state or local governments from regulating guns, adopting the same position that Judge Sonia Sotomayor, President Barack Obama’s nominee to the Supreme Court, did when faced with the same question earlier this year.”

This ruling contrasts with a recent ruling by “the U.S. Ninth Circuit Court of Appeals in San Francisco … that the Second Amendment is incorporated against the states and local governments” — in other words, states and local governments are bound by the Second Amendment. Which court is correct?

To understand the debate in this topic, it helps to briefly review constitutional history. When the Constitution was first proposed, opponents of the new document criticized it for lacking a bill of enumerated rights, which were common in virtually every state constitution of the time. In response to these complaints, proponents of the new Constitution agreed to add a series of amendments in the first Congress that would codify restrictions on the federal government to infringe certain fundamental rights. The resulting first 10 Amendments, collectively referred to as the “Bill of Rights,” were ratified on December 15, 1791.

It is important to note two little-known historical facts regarding the proposal and ratification of the Bill of Rights. Alexander Hamilton, himself a prominent advocate of a liberal reading of the necessary and proper clause as well as a loose construction of the Constitution, argued that a Bill of Rights would be dangerous because it would imply that without such an enumeration of rights, the new government might actually have the power to infringe on these rights and might even now open the door for the government to regulate in these areas. In Federalist # 84, Hamilton wrote:

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? … I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government.

Hamilton basically was saying that the national government lacked the power to do any of the things that the proposed Bill of Rights were prohibiting, and codifying these restrictions might lead some to argue that the national government could actually regulate in those areas, which he felt was completely unconstitutional.

In addition, James Madison, widely regarded as “The Father of the Constitution,” wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular. As a matter of fact, numerous states had gun-control laws on the books at the time, as well as state-chartered religions. It was not that the citizens were necessarily opposed to state involvement in these matters but rather did not want any federal intrusion.

These two historical facts illustrate that, at the time of the ratification of the Bill of Rights, it was recognized by the Framers and Ratifiers that the national government had no authority to enforce the Bill of Rights against the states, and whatever authority it did have was clearly delineated in the text of the Constitution itself.

Therefore, the Bill of Rights did not give the national government any new powers but simply reiterated important restrictions upon it and not the states. This understanding is consistent with the position that not only does the Second Amendment protect an individual “right to bear arms” against federal action but also that the national government lack any power whatsoever to regulate within this area. Additionally, the states are free to regulate (or not regulate) in that area based on their own state constitutions.

The fact that the Bill of Rights did not apply against the states was not modified until after the ratification of the 14th Amendment and the judicial creation of the incorporation doctrine. The incorporation doctrine refers to the court selectively “incorporating” certain amendments in the Bill of Rights against state governments via a liberal reading of the 14th Amendment — completely contrary to the original understanding at the time of its ratification as explained by widely respected legal scholar Raoul Berger in Government by Judiciary: The Transformation of the Fourteenth Amendment.

As the late Congressman Larry McDonald explained, the rationale behind the incorporation doctrine “runs completely contrary to thoughts and purposes of the original framers…. Their intent was to limit the rights and powers of the federal government, not to help expand them.”

The courts liberal interpretation allowed the federal courts to widen their jurisdiction and judicially review numerous state laws. Some libertarians welcome this development in constitutional history as a great opportunity to spread freedom because it gives advocates of individual liberty “two bites at the freedom apple — one under his state constitution and one under the U.S. Constitution.” Sadly, the constitutional record of incorporation is not something many advocates of individual liberty can be proud of.

Constitutional historian Kevin R.C. Gutzman details the sordid history of the incorporation doctrine:

This is what the Incorporation Doctrine has given us: in place of reservation of these areas of law to state governments for regulation via legislative elections, we get seizure of control over them by unelected, unaccountable, politically connected lawyers (that is, federal judges) who purport to substitute “reason” for the (one infers) “unreasonable” regulations crafted by elected officials…. It was under the cover of the Incorporation Doctrine that federal courts recently invented a right of child rapists not to face the ultimate penalty for their crimes.  It was under the cover of the Incorporation Doctrine, indeed, that a Supreme Court majority for several years banned capital punishment altogether. It was under the cover of the Incorporation Doctrine that the Supreme Court eliminated state prohibitions of various types of pornography. The Incorporation Doctrine also underlies the Court-created ban on prayer, even on moments of silence, in public schools. The Incorporation Doctrine has allowed federal courts to invent rights to burn flags, ban invocations at high school graduations, and establish essentially a national code of “acceptable” punishments.

Furthermore, it was with the help of the incorporation doctrine that the “politically connected lawyers” on the court were able to invent “penumbras” giving rise to the infamous Roe v. Wade decision, and there were even discussions at the height of judicial activism to engrain a right to a minimum wage within constitutional law. Libertarians should be careful what they wish for because the “interpreters” on the court do not always see eye-to-eye with their vision of liberty.

Ironically, libertarian proponents of incorporation who usually are almost universally opposed to state power, let alone massively centralizing power in a super state, are in effect advocating the use of a larger, more powerful central government (via its court system) to force smaller governments to “be more free” without recognizing the fact that freedom means different things to different people. Such a contradictory line of thought is in direct conflict with the proud Jeffersonian decentralist tradition of those who founded our constitutional republic.

This leads us back to gun-rights activists who are currently expending numerous resources trying to get federal judges to incorporate the bill of rights against the states. Ironically, years of money spent trying to get federal judges to advance the cause of gun rights resulted in the disappointing Supreme Court decision in District of Columbia v. Heller where the “conservatives” on the court acknowledged that the Second Amendment protects an individual right “to bear arms” but that right is not “unlimited” and there is still room for reasonable restrictions on gun control.

As renowned constitutional attorney Edwin Vieira, Jr. wrote last fall in The New American, “Could Heller allow gun regulation to the point that the regulation could become a prohibition for all practical purposes? What effect will it have, if any, on existing or future gun laws in other jurisdictions throughout the country?”

The Heller decision was disheartening to gun rights advocates who believed that vast amounts of money spent on endless legal challenges would engrain an unlimited right to gun ownership in our constitutional law. Related efforts to incorporate the limited protections of Heller against the state will face similar frustration.

Those who put their faith in “politically connected lawyers” to uphold their rights and advance the cause of freedom will continue to be disappointed. Perhaps these activists will now realize that federal judges are not reliable friends of individual liberty and instead will focus their energy on a much more realistic goal of making Congress constitutional.

Patrick Krey works in finance and has an M.B.A., J.D. (law degree), an L.L.M. (masters of law) from the University of Buffalo, and is an Attorney admitted to practice in New York State. He is also a freelance writer - his work has been published online at JBS.org, PrisonPlanet.com, Antiwar.com and in The New American bi-weekly print magazine. He is also the host of the online radio show The Constitutional Coalition.

by Rob Natelson, Electric City Weblog

Supreme Court nominee Sonia Sotomayor’s comment at Duke Law School that the U.S. Court of Appeals “makes policy” has received a lot of attention, and deservedly so. Understanding what prompted her remark is key to understanding what has happened to our Constitution in the modern era.

Before the Twentieth Century, judges followed certain age-old traditions of judging. When considering a case controlled by a statute, judges tried to apply the precise words of the statute to the case before them. When the wording was unclear, judges either applied the pre-existing common law or sought to apply the intent of the lawmakers who passed the statute.

In rare cases where, due to drafting error or unforeseen circumstances, the words were flagrantly inconsistent with what the lawmakers intended, courts tried to follow the intent rather than the words.

When there was no controlling statute, judges resorted to common law. They first sought to deduce the solution to the present case from former cases. If that was not possible (as when the precedents were hopelessly contradictory or none was relevant), judges sought to apply the underlying principles of the Anglo-American common law.

This sometimes was referred to a “discovering the law.” Among those basic principles were that consensual agreements were to be enforced and non-consensual loss on innocent parties was to be avoided.

Early in the Twentieth Century, a group of leading lawyers rejected the traditional way of doing things. Figures such as Supreme Court Justice Oliver Wendell Holmes, Jr. and Judge Jerome Frank argued that, whatever judges pretended they were doing, they really were making law, so they might as well use their law-making opportunities to shape good social policy.

This group called themselves Legal Realists, and they denigrated traditional jurists by labeling them “legal formalists.”

In the intervening years, Legal Realism and its variants and offshoots have become Legal Orthodoxy – at least in the nation’s law schools. Legal realism also has become widespread on the bench (although my 1992 study of real estate cases found that it was not yet dominant in that area of the law).

Judge Sotomayor is clearly a legal realist, as shown by her Duke Law School comment and, elsewhere, by her approving references to Jerome Frank. Indeed, given the prevalence of Legal Realism among the liberal jurisprudential elite, it would be surprising if she were not of this persuasion.

In a constitutional case, a judge should apply the Founders’ policies, not his or her own. Obviously, though, a philosophy that encourages a judge to make policy in other cases may encourage the judge to make policy in constitutional cases, also.

Several members of the current Supreme Court are clearly of the Realist persuasion – see, for example, Justice Stephen Breyer’s dissent in the recent D.C. gun case. Justice Souter also is a Realist who dismisses arguments he doesn’t like by branding them as “categorical formalism.”

Souter’s replacement by Judge Sotomayor would not be a big change on that score. But it would be a missed opportunity to render our government more faithful to its constitutional roots.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

by Joshua L. Rogers, for the Hattiesburg American

According to the United States Supreme Court, the Constitution says we have a fundamental right to use contraceptives (it doesn’t), that women have a fundamental right to abort their child (it doesn’t say that either), and that we all have a fundamental right to parent our kids as we see fit (nope, not in there).

I admit to being someone who appreciates having the right to parent my child as I see fit, but I am uncomfortable with nine philosopher kings in Washington telling me that is my right.

The Constitution is full of sweeping rights for Americans, but on some issues, it is entirely silent. On those issues, the 50 states have the authority to make their own rules.

That doesn’t mean that the Constitution can’t change; it can be amended by the people, but it’s a tedious process that requires overwhelming popular consent.

When amendments fail, as they almost always do, the issue stays under the authority of the states.

There is, however, a cheap way to amend the Constitution and seize power from the states. Think of it as a Supreme Court Easy Pass, where the court just declares new constitutional rights in an opinion handed down like an edict.

For example, with the Easy Pass, the court can dream up new provisions of the Constitution that are more politically conservative (like marriage being only between a man and woman) or create rights that are more politically liberal (like the right to have a gay marriage).

Either way, in deciding an issue that’s not addressed in the Constitution (who can marry), nine aristocrats end up deciding an issue that should either be dealt with by an amendment or left in the hands of the 50 states.

Over the years, too many of our Supreme Court justices have taken it upon themselves to use the Easy Pass and decree certain rights to us that aren’t actually in the Constitution.

That is why, as our president nominates the replacement for retiring Supreme Court Justice David Souter, his criteria should require a person who will simply interpret the Constitution as it is written not as the judge wishes it had been written.

Where the Constitution is silent, the states can govern themselves.

Where the Constitution needs to be changed, it should be amended through the process provided in the Constitution, not through a judicial edict.

Joshua L. Rogers is an attorney in Washington, D.C.

The views in this article represent those of the author alone, and do not, in any way, reflect the views of the author’s employer.

by Gennady Stolyarov II

In Marbury v. Madison (1804), John Marshall argues that the Supreme Court ought to have the authority to determine the constitutionality of laws which come before the court. Since the judges must apply the laws to particular cases, they must necessarily “expound and interpret” those laws.

Furthermore, since the Constitution is superior to an ordinary act of the legislature and cannot be annulled by such an act, the judges-when faced with a law contrary to the Constitution-must strike down the law so as to uphold the Constitution. Continue Reading

by Kevin R.C. Gutzman

With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “incorporating” the Bill of Rights into the Fourteenth Amendment’s Due Process Clause.

In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.

The Preamble to the Bill of Rights says, in part, “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….”

(Are you surprised that you have never read this before?  That it is not usually included in printed versions of the Constitution?  What accounts for that omission, do you think?)

Unsurprisingly, then, the First Amendment begins by saying, “Congress shall make no law.”  Why?  Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers.

So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states.  This was the only significant constitutional decision in which Marshall ever ruled against federal authority.

James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states’ behavior in respect to certain rights.  His effort was unavailing.

Thus, when “originalist” Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist” he really is.

When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.

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Cross-Posted from DailyKos.com with permission of the author, Crashing Vor

Watching Keith [Olbermann] just now, I heard him mention Antonin “Nino” Scalia’s dissenting opinion from today’s ruling in regards habeas corpus rights for detainees.

The lowlight of Justice Scalia’s opinion was the paragraph:

“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.”

While others will surely spend countless hours and buckets of ink and pixels debating the merits or madness of the second sentence, I’ve a bone to pick with the first.

Scalia has, over the years, demonstrated a profound lack of understanding of the U.S. Constitution and the role of the Supreme Court. His devotion to the concept of “originalism” selectively ignores the Ninth and Tenth Amendments, key components of the document as “originally” ratified. The codicil to the majority opinion in Bush v. Gore, in which the nation’s ultimate appeals court, where all legal precedent is finally decided, declares that the judgment in that case is not, in fact, legal precedent. Continue Reading