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documents:external:restoring_rule_of_law [2016/07/27 16:34] – Oliver Wolcott | documents:external:restoring_rule_of_law [2020/02/18 23:56] – Oliver Wolcott |
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*Our Nation was built on one principle above all others—the Rule of Law. As James Madison explained in the //Federalist//: "If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." ((The Federalist No. 51, at 322 (Madison) (Clinton Rossiter ed. 1961) [hereinafter "THE FEDERALIST"].)) As the Founders envisioned it, //the rule of law //offered the solution to that great difficulty: the law could check the ambitions of men who were far from angels, and the law could moderate the excesses of governments that were far from benevolent. | Our Nation was built on one principle above all others—the Rule of Law. As James Madison explained in the //Federalist//: "If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." ((The Federalist No. 51, at 322 (Madison) (Clinton Rossiter ed. 1961) [hereinafter "THE FEDERALIST"].)) As the Founders envisioned it, //the rule of law //offered the solution to that great difficulty: the law could check the ambitions of men who were far from angels, and the law could moderate the excesses of governments that were far from benevolent. |
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==== THE PRESIDENT ==== | ==== II. THE PRESIDENT ==== |
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=== A. The Problem === | === A. The Problem === |
//FERC v. Mississippi//, 456 U.S. 742, 777-78 (1982) (O'Connor, J., dissenting) (internal quotation marks omitted). This facet of the Texas Plan also would harmonize the doctrine of preemption, in which //Geier //always has been somewhat anomalous. For example, the Supreme Court often emphasizes: "//In all pre-emption cases//, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' . . . we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" //Medtronic, Inc. v. Lohr//, 518 U.S. 470, 485 (1996) (emphasis added; quoting //Rice// //v. Santa Fe Elevator Corp.//, 331 U.S. 218, 230 (1947)). Given that "all preemption cases" should turn on clear statements from Congress, it makes little sense to allow administrative agencies to preempt state law without //any //statement from Congress (let alone a clear one).)) | //FERC v. Mississippi//, 456 U.S. 742, 777-78 (1982) (O'Connor, J., dissenting) (internal quotation marks omitted). This facet of the Texas Plan also would harmonize the doctrine of preemption, in which //Geier //always has been somewhat anomalous. For example, the Supreme Court often emphasizes: "//In all pre-emption cases//, and particularly in those in which Congress has 'legislated . . . in a field which the States have traditionally occupied,' . . . we 'start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" //Medtronic, Inc. v. Lohr//, 518 U.S. 470, 485 (1996) (emphasis added; quoting //Rice// //v. Santa Fe Elevator Corp.//, 331 U.S. 218, 230 (1947)). Given that "all preemption cases" should turn on clear statements from Congress, it makes little sense to allow administrative agencies to preempt state law without //any //statement from Congress (let alone a clear one).)) |
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==== THE JUDICIARY ==== | ==== III. THE JUDICIARY ==== |
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=== A. The Problem === | === A. The Problem === |
But far from dissuading the effort to amend our Constitution, Henry's words should encourage it. The benefits of the Texas Plan are many because any change effectuated by an assembly of the people will force the federal government— whether in big ways or small—to take the Constitution seriously again. And the downsides of such an assembly are virtually nonexistent, given that any change to our Constitution's text requires such overwhelming nationwide support. The only true downside comes from doing nothing and allowing the federal government to continue ignoring the very document that created it. | But far from dissuading the effort to amend our Constitution, Henry's words should encourage it. The benefits of the Texas Plan are many because any change effectuated by an assembly of the people will force the federal government— whether in big ways or small—to take the Constitution seriously again. And the downsides of such an assembly are virtually nonexistent, given that any change to our Constitution's text requires such overwhelming nationwide support. The only true downside comes from doing nothing and allowing the federal government to continue ignoring the very document that created it. |
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| ===== END NOTES ===== |
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NOTES \\ | \\ |
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