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Shooterman
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What Is 'The Law of The Land'?
07/17/11 at 09:36:18
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More importantly- What is it not?

I offer for your perusal, the following;

http://rcarterpittman.org/essays/judiciary/Law_of_the_Land.html

excerpt

MONTESQUIEU SAID in his Spirit of Laws that in a republic, rulers govern by fixed and established laws while a despot governs according to his own will and caprice without laws or rules. Again he said, "In despotic governments there are no laws; the judge himself is his own rule." But in free states, he asserted, there is a law, and where it is precise, the judge follows it; where it is not, he tries to discover its spirit.

The fundamental difference between a despotism and a republic is how "the law of the land" is made or in whom legislative power is vested, in what the law consists and how it is enforced. On every side one hears that a decision of the Supreme Court of the United States is "the law of the land" and must be obeyed by everyone whether he or she was a party to the case or not. Politicians assert the doctrine and call out troops to enforce it. Newspapers and periodicals simplify, distort and perpetuate it. Pulpits echo it, and our children are taught it. Nothing like it has ever been heard in America before. It would seem that declamation has stolen a march on history and found something new.

It was to settle the question as to who should make the law that Charles I and the Earl of Strafford forfeited their heads in the Puritan Revolution and that Lord Chief Justice Jeffries died in London Tower in the Glorious Revolution.

It was to settle forever all questions as to who should make law that the very first sentence of our Constitution was made to say:

    All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.

It was to settle that question that Section 8 of Article I of the Constitution reiterated in its last clause that:

    The Congress shall have power . . . to make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

It was to settle that question that every power of the president beyond the execution of laws of the union enacted by the Congress was spelled out in the Constitution by words so plain that anyone who can read English and knows a smattering of American history can understand.

Critique and comments, please.

Section 2 of Article III of the Constitution "extends" the judicial power to "Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." Article VI of the Constitution defines "the supreme Law of the Land" as: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made under the Authority of the United States." Thus Article VI repeats the words of Article III in order that the Judicial Department could never make a valid claim that its decisions in "Cases" are "the supreme Law of the Land." Section 2 of Article III "extends" the "judicial power" to other defined "Cases" and "Controversies," depending upon the laws of nations -- or of States -- not relevant here. But for that extension the courts would have been limited, exclusively, to judging cases involving "the law of the land." Since Article III limits federal jurisdiction to cases, a decision in a case becomes the law of the case, binding only upon the parties thereto -- not "the law of the land," binding upon everyone.

It was to keep federal courts from making law under the guise of finding law that the framers of the federal Constitution, unlike the framers of our state constitutions, withheld from the federal courts jurisdiction of cases and controversies arising under common law.

  

Our Bill of Rights constitutes a cluster of little foxholes of liberty ground into the hard cold face of history by helpless men for a shield against the lash of tyrants. They are the result of distrust of power and distrust of men in power. They are a recognition of Lord Acton's statement of a truth eternal--"power corrupts, and absolute power corrupts absolutely."R. CARTER PITTMAN&&Dalton, Ga., Sept. 28, 1955.DRAFT JAN MORGAN FOR PRESIDENT!
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Subvet
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Re: What Is 'The Law of The Land'?
Reply #1 - 07/18/11 at 02:45:26
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It has always been my view that the primary purpose of the Supreme Court was to ensure that the constitution was correctly applied in the rule of law.  The Supremes have routinely failed to meet this purpose and have instead become an unelected legislative body, immune to voter accountability.

The two activists nominated by Obama and confirmed by the Senate are classic examples of liberal jurists who believe that the position of Judge should be used to right was they perceive are wrongs and that the bench is an appropriate place to create laws because itís too hard to get certain legislation through the congress.

All that being said, what can we do about it?  I have long wondered how we could take the appointment of Supreme Court Justices out of the ďadvise and consent processĒ and instead require the president to submit his selection for full congressional review and require a super majority for confirmation.

Additionally, I have wondered how we the people could recall those justices who routinely abuse our constitution or base their opinions on foreign law while ignoring our own.
  
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Shooterman
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Re: What Is 'The Law of The Land'?
Reply #2 - 07/18/11 at 10:46:48
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Subvet wrote on 07/18/11 at 02:45:26:
It has always been my view that the primary purpose of the Supreme Court was to ensure that the constitution was correctly applied in the rule of law. †The Supremes have routinely failed to meet this purpose and have instead become an unelected legislative body, immune to voter accountability.

The two activists nominated by Obama and confirmed by the Senate are classic examples of liberal jurists who believe that the position of Judge should be used to right was they perceive are wrongs and that the bench is an appropriate place to create laws because itís too hard to get certain legislation through the congress.

All that being said, what can we do about it? †I have long wondered how we could take the appointment of Supreme Court Justices out of the ďadvise and consent processĒ and instead require the president to submit his selection for full congressional review and require a super majority for confirmation.

Additionally, I have wondered how we the people could recall those justices who routinely abuse our constitution or base their opinions on foreign law while ignoring our own.



Unfortunately, Subvet, this has been going on at least since FDR began packing the Court with liberal unqualified justices. Truman and Ike, continued the practice, and it hasn't changed much since then. Few, if any of the Justices appointed today, believe their final decision in a case doesn't apply to an entire nation. Sad.
  

Our Bill of Rights constitutes a cluster of little foxholes of liberty ground into the hard cold face of history by helpless men for a shield against the lash of tyrants. They are the result of distrust of power and distrust of men in power. They are a recognition of Lord Acton's statement of a truth eternal--"power corrupts, and absolute power corrupts absolutely."R. CARTER PITTMAN&&Dalton, Ga., Sept. 28, 1955.DRAFT JAN MORGAN FOR PRESIDENT!
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russell.p.davis
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Re: What Is 'The Law of The Land'?
Reply #3 - 08/06/11 at 16:15:26
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Even though SCOTUS justices my not be recalled or impeached by citizen initiative they maybe indicted and tried in localities that have persons reached by the felonies incumbant to conceits of official authority fraudulently perpetrated under the color of law.
There are many obstacles to this remedy by they are not inherently insurmountable. 
More on this later.
Yes, I have a draft plan to initiate a peaceful, quick, lawful and inexpensive "Constitutional Reset".
  
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cecilbdml
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Re: What Is 'The Law of The Land'?
Reply #4 - 08/25/11 at 12:56:03
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I think something far more Jeffersonian is in order.  And its legality is based on its success (or lack of therein).

Two things that receive a lot of attention, and have 'conservative' pundits calling for a re-hash as 'states' rights' issues, are abortion and gay 'marriage.'  I find that totally objectionable as I find the concept of state-by-state gun control, state-by-state insurance mandates, and the like.  We are either ALL under the CONSTITUTION (that whole 'life, liberty, and pursuit of property/happiness' thing), or we are NOT.  There is no grey area or middle ground.

Abortion is choosing whether someone else gets to live or die.  We have laws against that...it's ILLEGAL TO MURDER SOMEONE.  It's not a states' issue; it's a fast and firm law in the Constitution and is not open for discussion.  You kill a child (born OR unborn) for your convenience, you should be hung from a tree or stuck on a pike in the public square as a deterrent to others.  If you wish to redefine the nuclear basis of our society due to your emotional problems and perverse habits, you should be put in the stocks and ridiculed, NOT lionized and put under a protected class (which shouldn't exist EITHER).

The only way this country can be corrected now, unfortunately, is through the forge of violent correction.  I would say revolution, but we're not trying to change this country into something it has never been.  We're trying to preserve what it already WAS.
  

Ride for those who no longer can, Live for those who showed you how.
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