The Second, Ninth & Tenth Amendments

[unionblue]

Ole,

No offense intended, as I myself am partial to the old hound dogs that used to live next to my house. My only goal was to make sure that any contribution to this thread is welcome, even questions will sometimes send a thread off into areas not considered by anyone before.

Sincerely,
Unionblue

[unionblue]

Russ,

Per you post #110 sorry the idea won't work for you in using the special features. I don't like to flip back and forth either, but I sometimes print out a post that I am replying to so I can have it in front of me when I do my reply.

I begin with the idea that you have missed my point. My point is if an act is not stated in the Constitution you can't claim that it is. What I meant is when you stated that that there was no clause in the Constitution that DIDN'T say secession was illegal, I turned right around and said the reverse was true, that there was no clause that said secession was legal either, thus we in effect cancelled each other out. The Tenth Amendment had nothing to do with my reply. That left us with clear, writen, black and white clauses in the Constitution that said the States could NOT perform the functions of independent states (i.e. coin money, form alliances with other states, etc.) all acts comitted by secession and all illegal under the clear terms of the Constitution.

I am also afraid that I cannot agree with your statement concerning the idea that the people are supreme in their sovereignty is irrelevant to this topic. It lies at the heart of the idea of who had the authority to say what is and is not secession, and that the States do not have that authority.

And yes, we can disagree on what the Constitution says as you are saying something is in there that can't be seen or read. Saying that its there because you think so or believe so without proof doesn't amount to much more than a difference of opinion during lunch.

I have to go with the old established custom here at CivilWarTalk.com and that is anyone can say what they think and voice their opinions, but everyone wants to see how you back it up with documentation and historical research. Its like the old saying about opinions, everyone's got one, but it is much more impressive when you back it up with proof.

I appreciate your comments on the idea that slavery was the central reason why the South left the Union and your mention of the secession oridinances that offer proof of this. Myself, there is no way to prove that the South ever felt like it had to go to war over tariffs or taxes to support the North, as due to my own research in this area.

I hope you enjoy the Ft. Sumter thread, it is well worth your time to look it over.

Sincerely,
Unionblue

[russ_aukerman]

Dawna -

I'm more familiar with modern defamation law than its historical underpinnings. So, I'll offer my opinion on your quote but its limited to that. Printing would seem to be an overt act, but then so would speaking or writing. Extended to modern law, any publisher may be responsible for a defamatory statement. You can defame me by written words (libel) or spoken words (slander). But to be liable, you must publish your defamation to a third party (telling only me how rotten I am isn't enough). Under the re-publication rule, anyone else (media or my next door neighbor; but usually the newspaper or television/radio) who 'publishes' or repeats your libel of me is equally responsible. Its more complicated than that, but that's the gist.

But of course, there's more. As I earlier stated, defamation (or seditious libel in our example) is punished after the fact, it cannot be restrained prior to the fact of publication. So the bad stuff is already out there. In civil defamation law, truthful statements cannot be published. So if I sue you for calling me rotten, you can defend yourself by proving I'm rotten. Thus, I don't think the NY Times could be civilly punished for reporting true, albeit sensitive, military information. Seditious libel, calling for the overthrow of the gov't through unlawful means, is a criminal offence having different punishments. Last I heard, its still punishable. But again, its already out there. The 1st Amend. may be a defense; it seems that it ought to be. Sedition acts which punished mere defamation of the gov't, without calling to overthrow the gov't, were enacted in the very late 18th century in the US, but were short lived. Therfore, I'm of the opinion that the NY Times could not be punished criminally for publishing sensitive military info unless, at least, it also called for the unlawful overthrow of the gov't.

I hope my rambling helped. But if not, please feel free to call on me again.

[russ_aukerman]

Cash -

"Interesting that James Madison, "The Father of the Constitution," and the man who wrote the Tenth Amendment, didn't see it that way." Again, its not what any one person says about the Constitution that counts, its what the Constitution says that counts.

"It's nothing more than your opinion." I agree, in part. Some things are opinion, and should be left for the individual to agree or disagree. But if I say that the sun rises in the east, that's a factual statement that's true regardless of whether its documented by some scientific quarterly. Your posts strike me as adversarial, requiring proof of things which, IMO, a person of your intellect already knows. I'll not devolve into seeking proof of the obvious. That's too much like work. This is my hobby, not my job. If I go to the library, it'll be on an issue I don't already know to be factually true based on past research which I no longer have at hand to quote to you. And I'll never go to prove an opinion, because opinions are by definition unprovable. I think we could make this easier if we on the 'axiomatic,' and save research for truly contested facts. I invite your agreement. And I'll give you an example. You say that if I maintain the states are sovereign, prove it. I say that I shouldn't have to, that such is axiomatic. For your proof, I'll offer:

"The States are no less sovereign with respect to each other than they are with respect to the Federal Government. Their powers to undertake criminal prosecutions derive from separate and independent sources of power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment. See Lanza, supra, at 382. The States are equal to each other "in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself." Coyle v. Oklahoma, 221 U.S. 559, 567 (1911). See Skiriotes v. Florida, 313 U.S. 69, 77 (1941)." Heath v. Alabama, 474 U.S. 82 (1985)(discussing "dual sovereignty doctrine" in the context of the double jeopardy clause).

If you'd prefer a pre-ACW quote, how about "And the powers of the General Government, and of the State, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres." Ableman v. Booth, 62 U.S. 506 (1858).

You would agree, I'd have to think, that the above quotes say what I've been saying all along. IMO, however, you already knew that. Let's not argue over the obvious.

You state that "You asked me for my opinion regarding ALL of the Framers, and I told you I have not formed one yet because I have not read all of their statements yet." No, I asked you what "some" of the drafters preferred. It is to that question that I'd like a direct answer. I'm not sure that all of the drafters agreed on anything.

I still don't get your point there; it seems like a straightforward application of Art. V.
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My point will be made clear, I promise you, once I have a direct answer from you. I gave you a direct answer. I even agreed with you; if 3/4 of the states vote for the amendment, it passes and is operative on the remaining states that didn't vote for it. What more do you want.

"For clarity, allow me to merge our Article IX discussion back into the mix in our more general posts.
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I don't see how that clears things up." It clears things up to respond to several of your posts in one of mine. That's all.

"On the site I found the Articles, the commentary states that "The United States had no independent power of taxation, relying on the good faith of the states to pay bills sent to them for the maintenance of the national treasury." usconstitution.net. Is this site wrong?
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Essentially correct..." My original point was that the Articles didn't fund the central gov't's declaration of war, that the central gov't (under the Art. of Confed) therefore lacked the power to impose its will and, therefore, the delegation of by the states to that central gov't was merely the delegation of a power, not a sovereign power. You disagreed, but as you later said, my point was "essentially correct." Whether the same occurred in or out of session is, IMO, immaterial.



Thank you for the internet resources. They wouldn't be slanted toward your existing opinions, would they? :-)

"This is a wide-ranging subject." I agree that we've touched on many issues. I still maintain that they they are too ill-defined, as yet, for a trial. Maybe we can narrow them some.

[russ_aukerman]

Unionblue -

Please refer to the authoity I quoted for Cash in post #124. Does that alter your opinion. Let me know.

[russ_aukerman]

Cash -

I'm assuming that the bullets and the gun are both provided by the same person at the same time. Then, I'd say he's guilty at least as an accessory and perhaps in a conspiracy to commit murder. Is he prosecutable as the principal?

[dawna]

Russ:

I know that you've addressed your comments to Cash, but if you wouldn't mind me asking a quick question? Wouldn't prosecution as a principal depend entirely on the intent being provable?

Dawna

[russ_aukerman]

Dawna -

Please feel free to comment on anything I say regardless of to whom it's directed. That's one of the benefits to message boards.

I would agree that most prosecutions being based on some level of intent. The exceptions to that rule are 'strict liability' crimes, such as speeding. Its no defense to your ticket that you didn't intend to go over the speed limit. IIRC, Cash's hypothetical was based on giving the bullets to a person "knowing" they'd be used to shoot someone. Knowingly or purposefully doing something is often considered doing the thing with intent. Again, IIRC, there are several such levels of intent applicable to different crimes.

[unionblue]

Russ & Dawna,

The bullet theory is mine, not Cash's.

Unionblue

[russ_aukerman]

Unionblue -

"The bullet theory is mine, not Cash's." My apologies. I stand corrected.

But then do you know the answer?