2nd A. & States' Rights

[Malum Prohibitum]

Clayton Cramer

Clayton Cramer writes something that I will mess up in attempting to quote, but it asks why is what was universally a fundamental right at the time of the adoption of the Constitution (the right to keep and bear the same arms that the military carried) now universally a felony? And why is what was universally a felony at the time of the adoption of the Constitution (sodomy) now universally a fundamental right?

I quote it because it really sums up the state of constitutional law today. Did the Constitution change? Or did an elite class (lawyers) turn the Constitution on its head?

 

[El Tejon]

The latter.

States have no "rights" and they certainly have no power or authority to deny any citizen their civil rights.

 

[ctdonath]

One error I see in a lot of this is the notion that the argument revolves around the feds forcing the states to respect the BoR - and then get uppity about states' rights, losing sight of the fact that it's not about states' rights, it's about individual rights.

Again as I noted:
The BoR recognizes pre-existing rights. These rights are independent of allowance or granting or recognition or oppression by any government. If the BoR as written only restrains the feds, that does NOT mean that the states are free to infringe on those rights. The states must, just as the feds must, recognize and respect those rights - else the people may act, er, outside the system to ensure a government that does.

The point of the 14th amendment was to say "hey, you, states - you need to respect these natural pre-existing rights just as much as the feds must, and since you haven't been doing so on your own, this now gets thrust on you from the federal level." Interestingly, the 14th Amendment was added by approval of a supermajority of states! i.e., most states said "yes, we must abide by the Bill of Rights and actively protect those rights for our residents (and any state that did not agree must be compelled to)". So why is there any question about whether the BoR applies to the states? it's the states themselves that said so!

 

[The Real Hawkeye]

Did the Constitution change? Or did an elite class (lawyers) turn the Constitution on its head?

It can be traced back to a man named Lincoln.

 

[The Real Hawkeye]

If the BoR as written only restrains the feds, that does NOT mean that the states are free to infringe on those rights. The states must, just as the feds must, recognize and respect those rights - else the people may act, er, outside the system to ensure a government that does.

Bingo. Give the man a cigar!

The point of the 14th amendment was to say "hey, you, states - you need to respect these natural pre-existing rights just as much as the feds must, and since you haven't been doing so on your own, this now gets thrust on you from the federal level." Interestingly, the 14th Amendment was added by approval of a supermajority of states! i.e., most states said "yes, we must abide by the Bill of Rights and actively protect those rights for our residents (and any state that did not agree must be compelled to)". So why is there any question about whether the BoR applies to the states? it's the states themselves that said so!

First of all, you totally mischaracterize the plain meaning of the Fourteenth Amendment. It does not say that, and it wasn't advertised as that. Secondly, many question the official story of the ratification of this amendment. That's because the official story is simply false. Half the States were under martial law when they were required to vote for ratification, and even with their votes, there were not quite enough northern States to swing it to victory. It, more likely than not, remains unratified by just about every constitutional standard.

 

[hugh damright]

Interestingly, the 14th Amendment was added by approval of a supermajority of states!

Hardly! The Southern States voted against it and were put under military rule until they changed their votes. And three Northern States withdrew their ratification but were ignored. The 14th failed every step of the amendment process and was forced upon us at the point of a bayonet ... not quite the same thing as approval of a supermajority.

 

[XD Fan]

Hawkeye,

It's hard for you because, perhaps, you don't understand that the primary privilege and immunity of citizens of the United States is self government within their States of residence, without the interference of the Federal Government.

A couple of questins and issues about this statement:

First, on what basis do your define what is the primary privilege and immunity of Citizens of the U.S. Forgive my ignorance, but is this explicitly defined somewhere in the constitution as such? Is it a matter of your personal philosophy? Is it described as such by numerous founders in their philisophical writing?

Secondly, if you are correct in that definition (and it makes some sense to me that you are), the language of the 14th is by no means exclusive to only one privilege or immunity. It is in fact explicitly plural. If you are correct in your description of the primary privilege and immunity, there still remains others including those deliniated in the BoR--specifically for the sake of this discussion, the 2nd.

Last, regardless of the history of ratifying the 14th or what it might have been originally intended to accomplish, the courts have decided that it covers numerous items from the BOR. It seems the worse kind of inconsistancy to incorporate some and not others. It is pure intellectual and judicial dishonesty.

 

[The Real Hawkeye]

A couple of questions and issues about this statement:

First, on what basis do your define what is the primary privilege and immunity of Citizens of the U.S. Forgive my ignorance, but is this explicitly defined somewhere in the constitution as such? Is it a matter of your personal philosophy? Is it described as such by numerous founders in their philosophical writing?

I hope you don't consider the Federalist Papers mere philosophical writings. Try reading No. 45 (http://www.foundingfathers.info/federalistpapers/fed45.htm), then get back to me.

Secondly, if you are correct in that definition (and it makes some sense to me that you are), the language of the 14th is by no means exclusive to only one privilege or immunity. It is in fact explicitly plural. If you are correct in your description of the primary privilege and immunity, there still remains others including those deliniated in the BoR--specifically for the sake of this discussion, the 2nd.

Regarding each one of those amendment, the primary privilege is self government, and the primary immunity is that against Federal interference with same. You see, the States already had all those protections set up in their Constitution the way they thought was fit for the citizens therein. This was for the Federal Government, to bring it in line with the States. They mistrusted a powerful central government. Do you think they wanted to give it the power to intervene in State laws concerning our fundamental rights? If you know the Founders, you know that's not what they were about.

We are not a unitary republic, under one central government. The primary governing in this country, as it concerns us as individual people, was to go on in the various State republics. Again, read Federalist No. 45.

Last, regardless of the history of ratifying the 14th or what it might have been originally intended to accomplish, the courts have decided that it covers numerous items from the BOR. It seems the worse kind of inconsistency to incorporate some and not others. It is pure intellectual and judicial dishonesty.

Yes, it is judicial dishonesty to suggest that the Fourteenth incorporates some of the articles of the Bill of Rights. On this we agree.

 

[XD Fan]

I hope you don't consider the Federalist Papers mere philosophical writings.

Actually, I do consider them aslmost exactly that. Perhaps the word mere does not apply to what I think they are. More correctly, they are among the most significant philosophical writings of the time and probably have the most modern validity of any writings from that time period except the Constitution.

That being said, they do not have the binding power of Law. They are an in depth and invaluable exposition of the constitution, but they are not law. They were written by three men (probably) as a way of explaining their views of what the Constitution says and convincing others to support the Constitution. I believe them to be invaluable and should be heavily considered as constitutional matters are debated and decided, but again, they are not law. If they were, the Bill of rights would be in trouble after #84.

Re: Federalist #45

As I read this one, I would say that the author (Madison) is suggesting the primary immunity would be from any undue interference from any form of government.

"It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. Were the plan of the convention adverse to the public happiness, my voice would be, Reject the plan. Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter. How far the sacrifice is necessary, has been shown. How far the unsacrificed residue will be endangered, is the question before us." (emphasis mine) Federalist #45

I think Madison would suggest the primary privilege might be the pursuit of happiness and welfare. Clearly #45 suggests that state government are more capable of ensuring (i.e. creating and atmosphere condusive to) the pursuit of that happines and welfare. Still none of this eliminates the possibility of the bill or rights (By an additional ammendment) being applied to all citizens in all circumstances at some later date. The Constitution is maleable and changable. Nothing in the Federalist papers dictates or even explains changes that were made nearly 100 years later.

All of the above notwithstanding, the language of the fourthteenth seems clearly design to incorporate all the BoR. I say this because the authors of that ammendment definitely meant to use it as a protection against violation of certain rights listed in the the BoR. If this is the case it must logically blanket all of them.

 

[The Real Hawkeye]

Regarding Federalist No. 45, the most important part is when he crystallized his point in the last third or so. The earlier part of the discussion, as was often the case with men of that age, ranges far and wide, and then the clearest, and to the point, statement of his argument is made as he approaches the end. Pay particular attention to the paragraph which starts something like, "The powers delegated by the proposed Constitution ... This is, as they say, the meat of it.

If the Federalist Papers, however, which constitute the public defense of the proposed Constitution against its most able critics, written by men most closely involved in its drafting, means so little to you in terms of understanding its intent and meaning, I suppose it's possible you are beyond my reach. You might, however, try reading the Tenth Amendment, and see if it squares with Federalist No. 45. If you conclude that it does, then perhaps there is hope. Or do you require a higher authority than the Tenth Amendment?

 

[XD Fan]

Hawkeye,

which constitute the public defense of the proposed Constitution against its most able critics, written by men most closely involved in its drafting, means so little to you in terms of understanding its intent and meaning, I suppose it's possible you are beyond my reach.

Emphasis Added

...they are among the most significant philosophical writings of the time and probably have the most modern validity of any writings from that time period except the Constitution...They are an in depth and invaluable exposition of the constitution, but they are not law. They were written by three men (probably) as a way of explaining their views of what the Constitution says and convincing others to support the Constitution. I believe them to be invaluable and should be heavily considered as constitutional matters are debated and decided,

Didn't we just describe them in the same way...whatever. Your condescension as in the bolded statement above is broring and eliminates any value to this discussion for me.

See you later on the boards.

XD Fan

 

[The Real Hawkeye]

How convenient to have a hissy fit at this point. But wasn't it you who wrote:

They were written by three men (probably) as a way of explaining their views of what the Constitution says and convincing others to support the Constitution.

Seems just a little dismissive. Not something someone would write if they accepted the Federalist Papers as even somewhat authoritative on the meaning of the Constitution. You want to have it both ways.

Those "three men" you refer to, by the way, where the ones most closely involved in actually drafting the document. Certainly Madison and Hamilton were.

 

[gc70]

There is much discussion over whether the Bill Of Rights, specifically the 2nd Amendment, applies to the states.

The notion that it doesn't is preposterous.

Maybe not.

The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitution was originally designed to be: a framework for the federal government. In other words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this was not an issue, because the state constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill.

This point is best illustrated by one of the amendments that Madison proposed in his initial speech:

Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away. Several cases that came before the Supreme Court in the 19th century attempted to have the Court establish that the Bill should apply to the states, to no avail:

In Barron v. Baltimore (32 U.S. 243 [1833]), the Court ruled that the Takings Clause of the 5th Amendment did not apply to the City of Baltimore and the State of Maryland by extension. Succinctly, the Court wrote: "...the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states."

Madison drafted and submitted the proposal for the Bill of Rights to Congress. If the Bill of Rights was intended to apply to both the national government and the states, it seems very strange that Madison would address one, and only one, section with a redundant specific restriction on the states.

 

[hugh damright]

To suppose that Jefferson et al meant to "secure" those Rights in the Federal BoR and allow petty despots at the State level to trample on those same Rights is ludacris.

Jefferson said that Civil Rights are best left to the States:

"The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to. Let the National Government be entrusted with the defence of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man's farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best." --Thomas Jefferson to Joseph C. Cabell, 1816.