Thread: Constitution Day - What Constitution?

Legal Positivism removed ethics and morality from the law and yet America was founded on Judeo-Christian ethics and morality

Constitution Day - What Constitution?



By Ron Ewart
Thursday, September 17, 2009

The ink was barely dry on the constitution when efforts began to change it. Not all were in agreement with its original content and thought it could be improved. Alexander Hamilton wanted more power in the central government. Most others wanted the lions share of the power to rest with the states and the people.

Judicial tests of the constitution started almost immediately. In 1801 a celebrated case was brought to the U. S. Supreme Court in Maybury vs. Madison and was the first time the Supreme Court declared something unconstitutional. The court established the concept of judicial review in the U.S. (the idea that courts may oversee and nullify the actions of another branch of government).
But a paradigm shift took place in the 1880s when the first dean of the Harvard Law School (Langdel) along with Supreme Court Justice Oliver Wendell Holmes, convinced the court that adjudication of constitutional issues should be ruled on legal precedent, rather than on strict interpretation of the constitution itself and the actual intent of the framers. This new method became known as Legal Positivism.
“Legal positivism is a conceptual theory emphasizing the conventional nature of law. Its foundation consists in the pedigree thesis and separability thesis, which jointly assert that law is manufactured according to certain social conventions. Also associated with positivism is the view, called the discretion thesis, that judges make new law in deciding cases not falling clearly under a legal rule. As an historical matter, positivism arose in opposition to classical natural law theory, according to which there are necessary moral constraints on the content of law. The word “positivismâ€

http://www.tenthamendmentcenter.com/ten ... ng-points/

Tenth Amendment Talking Points1. The People created the federal government to be their agent for certain enumerated purposes only. The Constitutional ratifying structure was created so it would be clear that it was the People, and not the States, that were doing the ratifying.

2. The Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people to the federal government, and also that which is absolutely necessary to advancing those powers specifically enumerated in the Constitution of the United States. The rest is to be handled by the state governments, or locally, by the people themselves.

3. The Constitution does not include a congressional power to override state laws. It does not give the judicial branch unlimited jurisdiction over all matters. It does not provide Congress with the power to legislate over everything. This is verified by the simple fact that attempts to make these principles part of the Constitution were soundly rejected by its signers.

4. If the Congress had been intended to carry out anything they claim would promote the “general welfare,â€