IntenseDebate - Doug

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 2 replies · +1 points

State governments--"agents of the people"? That's pretty funny. But the main point here is that a principal agent relation is one of consent of the principal to the appointment of the agent. Obama is not my agent for anything, because I did not seek him for that job. Consequently, one cannot be another's agent merely by the consents of still others even if a majority. Therefore neither the state governments nor the state ratifying conventions were agents of the people collectively, since not every principal consented to the particular people selected.

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 3 replies · +1 points

Dear Michael:

The ratification conventions in the states were ad hoc state governments organized for a special and sole purpose: considering the draft constitution. The conventions represented the people of the various states, but quite plainly they were not the people. For the people of a state to have ratified the constitution, the constitution would have had to have been put to a plebesite. Eh?

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 2 replies · 0 points

Bob: Good show. You have well digested the matter. And for the 10th Amendment Center to deny that states created the Constitution is a not only a strange self-denial but also forfeits the debate and declares the federal expansionists the victors.

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 0 replies · 0 points

This post doesn't seem to want to publish. Another try.

One more thing: on contracts rights. Prof. is correct in saying the due process clause is not the source of those rights. Due process only relates to judicial proceedure.
However, the federal courts may not abrogate contracts, even though there is no impairment clause specifically aimed at the federal government. The reason for that is that there was no power given to abrogate contracts, an idea that was horrifying to Madison speaking in the Federalist on the Article 10 prohibition against states abrogating contracts. The Article 10 provision, therefore, is not a negative pregnant empowering the federal government to trash contracts.
Nor is the necessary and proper clause a source of such a power. Impairing the obligation of a contract is never proper, i.e., legal, for the right to contract has long been recognized as a human right, and even mentioned in the Civil Rights Legislation of 1868, I believe. Consequently the right to contract is one of those unenumerated rights protected by the 9th Amendment

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 0 replies · +1 points

One more thing: on contracts rights. Prof. is correct in saying the due process clause is not the source of those rights. Due process only relates to judicial proceedure.
However, the federal courts may not abrogate contracts, even though there is no impairment clause specifically aimed at the federal government. The reason for that is that there was no power given to abrogate contracts, an idea that was horrifying to Madison speaking in the Federalist on the Article 10 prohibition against states abrogating contracts. The Article 10 provision, therefore, is not a negative pregnant empowering the federal government to trash contracts.
Nor is the necessary and proper clause a source of such a power. Impairing the obligation of a contract is never proper, i.e., legal, for the right to contract has long been recognized as a human right, and even mentioned in the Civil Rights Legislation of 1868, I believe. Consequently the right to contract is one of those unenumerated rights protected by the 9th Amendment.

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 0 replies · +1 points

One more thing: on contracts rights. Prof. is correct in saying the due process clause is not the source of those rights. Due process only relates to judicial proceedure.

Some jurists have argued the obligation of contracts clause (Article 10) is only binding on states and therefore not the Federal Government. However, that's a facile out, because it doesn't address whether the federal courts have the power to set aside contracts. The answer is they don't, for there is no enumerated power to do so. The Federal Government has only those powers enumerated.

And no one could rightly argue that that the Necessary and Proper Clause allows the abrogation of contracts, for any legislation that sought to do that would not be "Proper", i.e., legal. See Madison's essay in The Federalist on the evils of contract abrogation.

Also, there is the 9th Amendment, which protects all rights not enumerated in the Bill of Rights. The right to have contracts enforced, and not trashed, is as valid a right as any other; and was a right mentioned in the post-Civil War legislation of 1868 I believe.

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 5 replies · 0 points

And the states, not the people, ratified the constitution. It was an act of the states. There was never an American "people" as such.

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 0 replies · 0 points

Prof: Thank you for your reply to No. 2. What about No. 1, state plenary powers?

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 0 replies · +1 points

Thank you. Current jurisprudence is bankrupt. We must never accept the premises of "current jurisprudence" or we will remain voicesin the wilderness. Best wishes

14 years ago @ Tenth Amendment Center - Are Federal Health Ins... · 0 replies · 0 points

Cite to the article is: http://douglassbartley.wordpress.com/2009/09/03/7/

IntenseDebate Comment System

Connect with Doug_Bartley

People I'm following

Doug_Bartley