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BrianW
02-21-2011, 09:19 PM
A conflict of interest?

Spencer Roanne, a Virginia judge who would have been appointed Chief Justice of the SCOTUS by Thmoas Jefferson, noted that if the federal judiciary were to arbitate a dispute bewteen itself and the states, it would be presiding over its own case, a clear absurdity:

"It has, however, been supposed by some that...the right of the State governments to protect against, or to resist encroachments on their authority is taken away, and transferred to the Federal judiciary, whose power extends to all cases arising under the Constitution, that the Supreme Court is the umpire to decide bewteen the States on the one side, and the United States on the other, in all questions touching the constitutionality of law, or acts of the Executive.
There are many cases which can never be brought before that tribunal, and I do humbly conceieve that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid for by he other party.
The Supreme Court may be a perfectly impartial umpire to decide between two States but cannot be considered in that point of view when the contest lies between the United States and one of its members.
The Supreme Cout is but a department of the general government. A department is not adequate to do that to whicj the whole government is inadequate...They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause.

Joseph Desha, Governor of Kentucky, identified the very same probelm in 1825:
"When the general government encroaches upon the rights of the State, is it a safe principle to admit that a portion of the encroaching power shall have theright to determine finally on whether an encroachment has been made or not?
In fact, most of theencroachments made by the general government flow through theSupreme Court itself, the very tribunal which claims to be the final arbiterof all such disputes.
What chance for justicehave the States when the usurpers of their rights are made their judges? just as much as individuals when judges by their oppressors. "

Dehsa concluded that it is "believed to be the right, as it may hereafter become the dutyof the State governemnts, to protect themselves from encroachements, and their citizens from oppression, by refusing obedience to "unconstitutional mandates".

From Nullification - How To Resist Federal Tyranny in the 21st Century, by Thomas E. Woods jr.