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The Constitution is not a Restaurant Menu

Jack Hays

Jack Hays

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It is a troubling thing that both Democrats and Republicans are increasingly willing to flout the Constitution and condone lawless behavior.

The Constitution isn’t a restaurant menuBy Hugh Hewitt

There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.
“Rule of law” conservatives are a subset of the coalition that elected President Trump. They were concerned about the vacancy on the Supreme Court (and a hundred federal bench vacancies below it); executive orders and regulations that greatly overreached existing statutory authority; and the general idea — spreading like kudzu — that dulyenacted laws can be ignored by federal, state and local officials when inconvenient to the perceived “will of the people.”
They were concerned, in other words, about preserving constitutional government.
Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United States (Ex-Im). . . .
 
Well sure it's a menu. Or as George Bush is quoted a saying, just a piece of paper. Just as he chose to violate the document in any number of ways, so did Barack Obama. Bipartisan criminal behavior--it's the way the US government rolls.

George gave us the USA Patriot Act, and Barack enforced it and gave us repeal of Habeas. We're on a roll, assaulting the document.
 
Thoreau72 said:
Well sure it's a menu. Or as George Bush is quoted a saying, just a piece of paper. Just as he chose to violate the document in any number of ways, so did Barack Obama. Bipartisan criminal behavior--it's the way the US government rolls.

George gave us the USA Patriot Act, and Barack enforced it and gave us repeal of Habeas. We're on a roll, assaulting the document.
Click to expand...

I don't believe either Bush ever said any such thing.
 
Jack Hays said:
It is a troubling thing that both Democrats and Republicans are increasingly willing to flout the Constitution and condone lawless behavior.

The Constitution isn’t a restaurant menuBy Hugh Hewitt

There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.
“Rule of law” conservatives are a subset of the coalition that elected President Trump. They were concerned about the vacancy on the Supreme Court (and a hundred federal bench vacancies below it); executive orders and regulations that greatly overreached existing statutory authority; and the general idea — spreading like kudzu — that dulyenacted laws can be ignored by federal, state and local officials when inconvenient to the perceived “will of the people.”
They were concerned, in other words, about preserving constitutional government.
Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United States (Ex-Im). . . .
Click to expand...

Lets not get too carried away a 300 yr old piece of paper written by slave owners and slave rapists. Who cares about 4000 yr old civilizations? What do they know?
 
Jack Hays said:
It is a troubling thing that both Democrats and Republicans are increasingly willing to flout the Constitution and condone lawless behavior.

The Constitution isn’t a restaurant menuBy Hugh Hewitt

There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.
“Rule of law” conservatives are a subset of the coalition that elected President Trump. They were concerned about the vacancy on the Supreme Court (and a hundred federal bench vacancies below it); executive orders and regulations that greatly overreached existing statutory authority; and the general idea — spreading like kudzu — that dulyenacted laws can be ignored by federal, state and local officials when inconvenient to the perceived “will of the people.”
They were concerned, in other words, about preserving constitutional government.
Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United States (Ex-Im). . . .
Click to expand...
Or, as the Romans said. When you run out of enemies you have to find another to kEep the empire going. How long have we been at war? 250 years?
 
Jack Hays said:
It is a troubling thing that both Democrats and Republicans are increasingly willing to flout the Constitution and condone lawless behavior.

The Constitution isn’t a restaurant menuBy Hugh Hewitt

There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.
“Rule of law” conservatives are a subset of the coalition that elected President Trump. They were concerned about the vacancy on the Supreme Court (and a hundred federal bench vacancies below it); executive orders and regulations that greatly overreached existing statutory authority; and the general idea — spreading like kudzu — that dulyenacted laws can be ignored by federal, state and local officials when inconvenient to the perceived “will of the people.”
They were concerned, in other words, about preserving constitutional government.
Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United States (Ex-Im). . . .
Click to expand...

The Supreme Court and some lower federal courts have also shown a tendency to disregard the Constitution when they find it convenient.
 
Sanctuary cities and marijuana legalization are bad examples for the argument the author is trying to make.

We live in a dual sovereign nation. Both states and the federal government make law and both have their own enforcement and judicial mechanisms. States are not - and should not be - required to make law that is consonant with Federal law as that would violate the idea that states themselves are sovereign. That idea pretty much goes back to the founding of the nation. The states are not required to enforce federal law or even assist in its enforcement. They cannot actively hinder federal authorities from enforcing federal law but it's well established that the states do not have to help. There is nothing unconstitutional or illegal about state marijuana legalization or sanctuary cities.

The flip to that argument is that states often do enforce federal law and that generally works better for all involved since state LE is closer - and more answerable - to the populace than nameless, faceless bureaucrats in Washington. But the fact remains that the Constitution does not require them to.
 
YorkshirePete said:
Lets not get too carried away a 300 yr old piece of paper written by slave owners and slave rapists. Who cares about 4000 yr old civilizations? What do they know?
Click to expand...

Slave owner and slave rapists or not the US Constitution is the first example in recorded history of a government structure that made the people sovereign and not the government or some individual by accident of birth. And 300 years ago slavery was still being practiced in large swaths of the world - including Europe. I believe slavery wasn't abolished in England until 1833.
 
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Gaius46 said:
Sanctuary cities and marijuana legalization are bad examples for the argument the author is trying to make.

We live in a dual sovereign nation. Both states and the federal government make law and both have their own enforcement and judicial mechanisms. States are not - and should not be - required to make law that is consonant with Federal law as that would violate the idea that states themselves are sovereign. That idea pretty much goes back to the founding of the nation. The states are not required to enforce federal law or even assist in its enforcement. They cannot actively hinder federal authorities from enforcing federal law but it's well established that the states do not have to help. There is nothing unconstitutional or illegal about state marijuana legalization or sanctuary cities.

The flip to that argument is that states often do enforce federal law and that generally works better for all involved since state LE is closer - and more answerable - to the populace than nameless, faceless bureaucrats in Washington. But the fact remains that the Constitution does not require them to.
Click to expand...

Have you looked up in which areas federal law is binding and in which state law is binding?
 
Jack Hays said:
It is a troubling thing that both Democrats and Republicans are increasingly willing to flout the Constitution and condone lawless behavior.

The Constitution isn’t a restaurant menuBy Hugh Hewitt

There is a deep divide in the United States, and it isn’t blue-red or liberal-conservative. It’s between those who believe in applying the law as it exists and those who think they have the right — through various government authorities — to ignore laws they don’t like.
“Rule of law” conservatives are a subset of the coalition that elected President Trump. They were concerned about the vacancy on the Supreme Court (and a hundred federal bench vacancies below it); executive orders and regulations that greatly overreached existing statutory authority; and the general idea — spreading like kudzu — that dulyenacted laws can be ignored by federal, state and local officials when inconvenient to the perceived “will of the people.”
They were concerned, in other words, about preserving constitutional government.
Sanctuary cities and marijuana legalization statutes are examples of local and state governments ignoring federal law. But federal authorities and elected officials who vent about those subjects should look to their own disregard of the law. Two recent instances of the lawlessness of Beltway elites concern the U.S.-Mexico border barrier and the Export-Import Bank of the United States (Ex-Im). . . .
Click to expand...

Are you trying to say that liberals don't abide by rule of law?
 
joG said:
Have you looked up in which areas federal law is binding and in which state law is binding?
Click to expand...

Are you asking where Federal law is enforceable? If so that would be across the entirety of the country. Why?
 
Gaius46 said:
Sanctuary cities and marijuana legalization are bad examples for the argument the author is trying to make.

We live in a dual sovereign nation. Both states and the federal government make law and both have their own enforcement and judicial mechanisms. States are not - and should not be - required to make law that is consonant with Federal law as that would violate the idea that states themselves are sovereign. That idea pretty much goes back to the founding of the nation. The states are not required to enforce federal law or even assist in its enforcement. They cannot actively hinder federal authorities from enforcing federal law but it's well established that the states do not have to help. There is nothing unconstitutional or illegal about state marijuana legalization or sanctuary cities.

The flip to that argument is that states often do enforce federal law and that generally works better for all involved since state LE is closer - and more answerable - to the populace than nameless, faceless bureaucrats in Washington. But the fact remains that the Constitution does not require them to.
Click to expand...

I agree with a lot of that, but some of it is not accurate.

It's true that the federal and state governments have concurrent jurisdiction in many areas of law, but the Supremacy Clause exists all the same. And it means that state laws or provisions of state constitutions are invalid if they are directly contrary to either the Constitution of the U.S., or to federal laws or treaties.

State marijuana laws which directly conflict with the Controlled Substances Act are invalid. See Gonzalez v. Raich (upholding federal agents' destruction, under authority of CSA, of six marijuana plants grown for a woman's personal medicinal use as valid exercise of Congress' power to regulate interstate commerce, even though woman's actions complied with California law).
 
Gaius46 said:
Sanctuary cities and marijuana legalization are bad examples for the argument the author is trying to make.

We live in a dual sovereign nation. Both states and the federal government make law and both have their own enforcement and judicial mechanisms. States are not - and should not be - required to make law that is consonant with Federal law as that would violate the idea that states themselves are sovereign. That idea pretty much goes back to the founding of the nation. The states are not required to enforce federal law or even assist in its enforcement. They cannot actively hinder federal authorities from enforcing federal law but it's well established that the states do not have to help. There is nothing unconstitutional or illegal about state marijuana legalization or sanctuary cities.

The flip to that argument is that states often do enforce federal law and that generally works better for all involved since state LE is closer - and more answerable - to the populace than nameless, faceless bureaucrats in Washington. But the fact remains that the Constitution does not require them to.
Click to expand...

The Constitution says otherwise.

The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land.

[h=3]Supremacy Clause - Wikipedia[/h]https://en.wikipedia.org/wiki/Supremacy_Clause


 
joG said:
Have you looked up in which areas federal law is binding and in which state law is binding?
Click to expand...

The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land.

[h=3]Supremacy Clause - Wikipedia[/h]https://en.wikipedia.org/wiki/Supremacy_Clause


 
Thoreau72 said:
Well sure it's a menu. Or as George Bush is quoted a saying, just a piece of paper. Just as he chose to violate the document in any number of ways, so did Barack Obama. Bipartisan criminal behavior--it's the way the US government rolls.

George gave us the USA Patriot Act, and Barack enforced it and gave us repeal of Habeas. We're on a roll, assaulting the document.
Click to expand...

Bush: The Constitution a ‘Goddamned Piece of Paper’?

Not so much.
 
matchlight said:
I agree with a lot of that, but some of it is not accurate.

It's true that the federal and state governments have concurrent jurisdiction in many areas of law, but the Supremacy Clause exists all the same. And it means that state laws or provisions of state constitutions are invalid if they are directly contrary to either the Constitution of the U.S., or to federal laws or treaties.

State marijuana laws which directly conflict with the Controlled Substances Act are invalid. See Gonzalez v. Raich (upholding federal agents' destruction, under authority of CSA, of six marijuana plants grown for a woman's personal medicinal use as valid exercise of Congress' power to regulate interstate commerce, even though woman's actions complied with California law).
Click to expand...

Point taken. Thanks.

So as I understand it the Supremacy Clause only comes into play with Federal law made pursuant to the Constitution so the CSA falls under than umbrella because the court accepted the Commerce Clause argument. So state laws that specifically legalize marijuana are at odds with the Constitution.

On the other hand I don't think states can be compelled to enact state versions of Federal law. I don't believe states are required to outlaw marijuana just because the Feds have, nor (again I think), can the states be forced to enforce their own marijuana laws if they chose not to. But simply wiping marijuana laws off the books takes away the state's ability to regulate and tax so that's not going to happen.
 
Jack Hays said:
The Constitution says otherwise.

The Supremacy Clause of the United States Constitution (Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land.

[h=3]Supremacy Clause - Wikipedia[/h]https://en.wikipedia.org/wiki/Supremacy_Clause
Click to expand...

About the legality of state marijuana laws. Yes. I was wrong about that. Though states still don't have to enforce Federal marijuana laws.
 
Gaius46 said:
About the legality of state marijuana laws. Yes. I was wrong about that. Though states still don't have to enforce Federal marijuana laws.
Click to expand...

When states challenge federal authority they usually end up regretting it.

 
Gaius46 said:
Point taken. Thanks.

So as I understand it the Supremacy Clause only comes into play with Federal law made pursuant to the Constitution so the CSA falls under than umbrella because the court accepted the Commerce Clause argument. So state laws that specifically legalize marijuana are at odds with the Constitution.

On the other hand I don't think states can be compelled to enact state versions of Federal law. I don't believe states are required to outlaw marijuana just because the Feds have, nor (again I think), can the states be forced to enforce their own marijuana laws if they chose not to. But simply wiping marijuana laws off the books takes away the state's ability to regulate and tax so that's not going to happen.
Click to expand...

Nothing in the Constitution gives the federal government power to compel states to enact laws. Any state is free not to enforce its laws regarding marijuana, or not to have any such laws at all. But any federal law regarding marijuana would still apply to people in those states.
 
Gaius46 said:
About the legality of state marijuana laws. Yes. I was wrong about that. Though states still don't have to enforce Federal marijuana laws.
Click to expand...

And that presents a big problem for those who are trying to enforce them. There just are not enough federal agents to do the job, without help from the states. The same is true, incidentally, of federal environmental laws, most of the major ones of which the EPA is charged with administering. It became clear in the 1970's, just a few years in, that there were not enough EPA officials for the job. So Congress passed laws which allowed each state to set up its own EPA, with various departments for air, water, trash, pesticides, etc. These state agencies submit plans for complying with the various federal environmental laws to the federal EPA, and when it has approved those plans, the states take over the enforcement of those laws.
 
matchlight said:
And that presents a big problem for those who are trying to enforce them. There just are not enough federal agents to do the job, without help from the states. The same is true, incidentally, of federal environmental laws, most of the major ones of which the EPA is charged with administering. It became clear in the 1970's, just a few years in, that there were not enough EPA officials for the job. So Congress passed laws which allowed each state to set up its own EPA, with various departments for air, water, trash, pesticides, etc. These state agencies submit plans for complying with the various federal environmental laws to the federal EPA, and when it has approved those plans, the states take over the enforcement of those laws.
Click to expand...

I agree though I'm really not all that sympathetic to the Federal government's enforcement problems to be honest. I like the idea of states enforcing Federal law for reasons previously stated but would just as soon see a much smaller federal law enforcement presence. Things like the CSA, while legal, are honestly an abuse of the Commerce Clause if you ask me. Drug enforcement should be a strictly local matter.
 
Gaius46 said:
I agree though I'm really not all that sympathetic to the Federal government's enforcement problems to be honest. I like the idea of states enforcing Federal law for reasons previously stated but would just as soon see a much smaller federal law enforcement presence. Things like the CSA, while legal, are honestly an abuse of the Commerce Clause if you ask me. Drug enforcement should be a strictly local matter.
Click to expand...

I don't know the entire history, but I believe it's been customary for state and local authorities to cooperate with the FBI, etc. whenever they could. I don't think the CSA in general is an abuse of the Commerce Clause, because obviously there is an interstate traffic in illicit drugs like heroin and cocaine. What made Raich tricky was that the marijuana involved had never moved between states. The opinion is complex, but it discusses the Commerce Clause issue you raise in detail. Wickard v. Filburn is an earlier Commerce Clause case that involved a loosely related question. The problem in both cases was that local acts inevitably have some interstate effect, however small. I disagree with the majority's decision in both Wickard and Raich.
 
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