Can the Bill of Rights be Amended?

[JJY]

To toss out an example, a guy growing and consuming pot in his own back yard will have violation of the clause tossed on top of any other charges thrown at him

You can not “violate” the commerce clause or be charged for doing so. Any action the federal government takes must be based on a power granted it by the Constitution. This includes criminalizing or regulating an activity. The commerce clause is used as justification for the government action.

As some have observed, the federal government, backed by the SCOTUS, has stretched the commerce clause to include almost anything. Any action taken by the federal government that is an expansion necessarily reduces state government power and individual freedom.

 

[JJY]

The commerce clause says congress has the power ….”to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes"

The SCOTUS in Katzenbach v. McClung held that interstate commerce was burdened by a dinner not serving minority groups because …. “the fewer customers a restaurant enjoys the less food it sells and consequently the less it buys.”

Just crazy!

The decision process must be – (1) decide the outcome they want based on political views, (2) make up arguments that sound constitutional to get the result, no matter how crazy, then (3) assume that the masses will accept it because after all, they are the SCOTUS and know what they are taking about even if it does not make sense to a normal person.

 

[DogBonz]

I'm no lawyer

But this:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Means NO to me.

 

[Outlaws]

I still don't see why vegetable gardens are still legal. I mean, those take away possible interstate commerce too.

 

[ArfinGreebly]

Vegetable Gardens

Outlaws,

When they get around to the WoV, they'll take care of that oversight.

 

[Outlaws]

WoV?

 

[Robert Hairless]

For example, it had been claimed that Federal gun regulations didn't apply to someone who made their own machine gun, as long as they don't sell it or even transport it across state lines. The Federal Gov't reasoned that, if you build your own, it is conceivably one less machine gun that will be bought on the national market and that therefore has an effect on interstate commerce.

Why doesn't their logic follow? Isn't it technically true?

The reasoning is valid: anything anyone does has a potential, or actual, effect on interstate commerce, so the federal government has the right to regulate all of your actions.

If cooking your own food turns out to be against the national interest because it takes you out of a national chain of restaurants for that meal or because your kitchen does not meet federal health standards, the federal government can prohibit you from cooking at home.

If you smoke cigarettes, the federal government can prohibit you from doing so because that smoke negatively impacts the health of people who inhale your smoke and, therefore, might increase health care costs throughout the nation, thus impeding the ability of interstate truck drivers to operate the accelerators of their trucks while crossing from one state to another, with potentially disastrous consequences for interstate commerce.

Any firearm, when discharged within range of a border between any two states, could send a bullet from one state to the next and land a foreign squirrel, which might be eaten by a passing lion that escaped from a travelling circus, thus irritating the lion's stomach lining and causing to to become so irrascible that it might bite the tire of some truck passing along an interstate highway, causing that truck tire to flatten, which would require the driver to change tires and fall behind schedule, which in turn could result in increased trucking costs throughout the nation.

These are all situations with possibly enormous consequences that could bring this country to its knees. You can create your own examples. It's all good.

 

[hugh damright]

I think some people intended for the 14th Amendment to amend the BOR ... they intended it to turn the BOR from a limitation of federal power to a grant of federal power.

 

[cropcirclewalker]

There are 3 entities who contracted together with our constitution. (OK, call them groups of entities)

1) The federal government (hereinafter referred to as "fed.gov")
2) The state governments (hereinafter referred to as "The States")
3) The people (hereinafter referred to as "The People")

The people authorized the states to contract together and form fed.gov.

Now, the constitution grants the power for fed.gov to regulate commerce between the foreign nations and the Indian Tribes (separated from other people because they were not viewed as people (at the time )) and among the states.

Nowhere in the commerce clause are the people mentioned.

Not that it means anything because fed.gov does whatever it wants, but fed.gov has no more authority granted by the commerce clause to regulate a person's growing pot in his backyard in New York City anymore than it can regulate a person growing pot in his backyard in Mexico City.

We, the people, are just too complacent and lazy and ignorant to know what they are doing to us. If we did, we would have torches and pitchforks all set for a barbeque tonight.

Too bad. It's a shame.

It is probably also to late to rectify.

Too many .gov trough feeders depend on fed.gov for their livelyhood.

 

[Durruti]

There seems to be a misconception here. The Interstate Commerce Clause does not say it's illegal to affect interstate commerce or anything like that. It says that Congress has to power to regulate interstate commerce. In the case of vegetable gardens, congress has chosen not to regulate. According to the current interpretation of the ICC, Congress could regulate them if it chose (probably wouldn't be very popular, though).

As previously mentioned, this seems to be a violation of the 10th Amendment, but if the courts say it's not, then it's not. The only way to change that is to change the courts, change the Constitution, or install a new system of government.

 

[Cosmoline]

It's a far more complex question than you might imagine. Could, for example, slavery be brought back by repealing the 13th? Could the 1st be abolished to make way for laws making criticism of the President a felony? By the book, there's no barrier to it. But the Supreme Court has discussed the concept in passing and might well hold that the BOR plus some core amendments such as the 13th and 14th cannot be repealed by any means short of abrogating the entire Constitution.

The Commerce Clause is an enumerated power and has nothing to do with the BOR. The BOR restricts and proscribes the powers of the federal government vis a vis individuals and the several states. The enumerated powers spell out the positive powers of Congress to pass laws.

 

[Outlaws]

We better ban the internet and have peoples vocal chords removed. Chop off their hands too so they can't use sign language. Heaven forbid we let someone speak to another human. They could possible tell someone something and that person might not go out and buy a newspaper. Speach is disrupting commerce.

 

[shield20]

The enumerated powers spell out the positive powers of Congress to pass laws.

Right, and ANY legislation in conflict with the BOR is nonconstitutional. Which is exactly why the people, via their state conventions, ratified the BOR to amend the Constitution.

 

[ArfinGreebly]

WoV

Outlaws:

War on Vegetables.​

Hairless:

Yes.
It's called the "chaos theory" of law.
By specifying all the possible outcomes -- no matter how likely -- they will eventually be able to regulate the flapping of butterfly wings in China.​

 

[Hkmp5sd]

Interesting point about the Supreme Court and the Constitution. Nowhere in the Constitution is the Supreme Court given the power to strike legislation that it considers unconstitutional. This is a power the Supreme Court gave themselves in Marbury v. Madison (1803).

 

[shield20]

Yates warned against just that very thing in Brutus#11 - how the judicial branch will stretch the "judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the US,..." clause.

He argued that the clause "vested the judicial with a power to resolve all questions that may arise on any case on the construction of the contitution, either in law or equity". (i.e. cases arising under the constitution are different from those arising under the laws)

'in equity' means that a correction may be necessary to a law since laws cannot be expected to apply to all cases as yet imagined; some latitude of interpretation will be required, since no specific rules can be layed down which will cover every case. This interpretation can be based on "the reasoned spirit" of the law instead of the words. [which gives us such crap as "the right of the people" doesn't really mean "the people" by liberal judges, attorney generals (Reno) etc.]. And this is allowed with NO oversight, as the constitution does not provide a power to correct the judicial when they are wrong, and because they are APPOINTED for life, etc.

 

[ConstitutionCowboy]

Good point, Shield, but I would disagree with Yates in that the judicial power exists UNDER the Constitution, and not in any way above the Constitution that would give power to the judiciary to "interpret its construction".

I would argue that if a law does not cover a certain thing related to an existing law, new law should be written to cover that related topic and not "bend" or "interpret" the existing law to "make it fit". Same for the Constitution. If it says "Shall not be infringed," some other part of the Constitution shall not be brought in to find "power" to fit the agenda, and "conveniently" ignore the prohibition, or lack of relevant power. That is why there is an amendment process in the Constitution. If what is needed or wanted is not in or is forbidden in the Constitution, It can be amended.

But, as the character 'Shepard Book' in "Firefly" said, "The government is run by men, notably ungoverned". (Or something to that effect.) Hence, we get men in government fearlessly governing as they see fit.

There is oversight, though. Congress can regulate the Court(Article III, Section 2, Clause (2), and justices can be impeached(another hold Congress has over the Court). I think Congress needs to pull out all the stops and get rid of all the liberal justices, and I think the Court needs to pull out all the stops and shoot down all the unconstitutional laws. I don't think it's a good thing for the Court to be "buddy-buddy" with Congress and vice versa. Both are supposed to be on our side.

Interesting point about the Supreme Court and the Constitution. Nowhere in the Constitution is the Supreme Court given the power to strike legislation that it considers unconstitutional. This is a power the Supreme Court gave themselves in Marbury v. Madison (1803).

The power of the Court is limited to adjudicating cases arising under the Constitution, laws of the United States, treaties, etc, under their authority. It isn't so much that the Court can strike legislation, it's more that the Court can not heed any law that was not made under the authority granted to the United States in the Constitution. It's more that the Court has not been granted the power to adjudicate anything extra constitutional and will simply ignore the unconstitutional law. No enforcement of a law is the same as no law.

Doesn't matter how many unconstitutional laws Congress passes, and how many people get arrested for breaking the unconstitutional law, if the Court is doing its job, there will be no adverse consequences to breaking that unconstitutional law, and soon enough that law will disappear. Notice, however, it is up to the Court to do its job.

Woody

In life's quests for all things gold, don't discount the money, but take some time for fulfillment, satisfaction, and a few of the things in life that are often beyond the bounds of mere security.

As you approach the winter of your life, many will be the times you will bask in the warm glow of those memories.

The chill of the lament - of deeds undone - of loves passed over - of adventures put off and missed - is nothing less than the cold, hard ground. That is a death before death.

Live your life, warm your heart, and you'll put the Devil's flames to shame when you warm the Earth with your bones.

B.E. Wood

 

[shield20]

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


Got it - thanks! Could you explain, or give a "for instance"?

 

[SolaScriptura139]

Why doesn't their logic follow? Isn't it technically true?

How they used the commerce law is technically true, but it violates the heart and intent of the 10th amendment.

 

[ConstitutionCowboy]

Shield20

A good example would be the Lawful Commerce in Arms Act signed into law by President Bush in October of 2005. It removed all those frivolous lawsuits that the anti-gun-rights crowd were bombarding the gun industry with, and prevents any new ones from being adjudicated. The Act took all that stuff right out of the court system.

I'd like Congress to direct the Court to recognize the right to keep and bear arms as a right of each and every individual, and direct the Court to adjudicate every case that enters the court system at any level in accord with that, and the fact that the right shall not be infringed. Congress has the power to do that in two places in the Constitution. One being Article III, Section 2, Clause (2), the other being Section 5 of the Fourteenth Amendment.

Woody

Look at your rights and freedoms as what would be required to survive and be free as if there were no government. Governments come and go, but your rights live on. If you wish to survive government, you must protect with jealous resolve all the powers that come with your rights - especially with the Right to Keep and Bear Arms. Without the power of those arms, you will perish with that government - or at its hand. B.E. Wood

 

[thexrayboy]

There is no need to amend them when the government has sufficient power to simply violate them at will.

That simple sentence rings through to the very heart of the problem in America. The Federal government has reached a size and pervasiveness that they no longer feel bound to follow the rules laid out in the blueprint that created this same Federal government. Add to this a judiciary that turns a blind eye to the constitution when that archaic relic is inconvenient and the tyranny is complete.

 

[shield20]

Thanks Woody - PERFECT (and so obvious now that you mentioned it!)

 

[another okie]

"I think some people intended for the 14th Amendment to amend the BOR ... they intended it to turn the BOR from a limitation of federal power to a grant of federal power."

The people who passed it didn't intend that. They intended to keep southern states from treating freedmen differently than white citizens. That was about it. All the rest of the 14th Amendment decisions are judicial piling on.

Any amendment can be amended. The prohibition amendment was repealed, for example. The only provision of the Constitution which theoretically cannot be amended is the provision that no state's representation can be diminished without its consent.

 

[hugh damright]

The people who passed it didn't intend that. They intended to keep southern states from treating freedmen differently than white citizens. That was about it. All the rest of the 14th Amendment decisions are judicial piling on.

Maybe ... I seem to recall reading Bingham saying that the intent was to apply the first eight amendments to the States, so I believe that some people had such an intent ... it's hard to say what those who passed it intended, especially when it didn't pass.

 

[another okie]

It is not hard to figure out what those who passed the 14th amendment meant. They wrote letters, diaries, and commentaries. They spoke in Congress. They served as advocates before the courts. Their remarks are still with us. Just because we can't find them on the Internet doesn't mean they don't exist.

In Page Smith's The Constitution, a documentary and narrative history on page 447 he writes

"Ironically, the Fourteenth Amendment, section 1 of which was designed to present freed slaves from being deprived of their rights without due process of law, became the basis for strengthening the rights of corporations... A number of southern states passed laws after the war that severely limited the rights of free blacks. The Fourteenth Amendment was intended as a means of securing those rights."

In the Slaughterhouse cases in 1873 the Supreme Court wrote that

"The negro having, by the 14th Amendment, been declared to be a citizen of the United States, is thus made a voter in every state of the Union... It is true that only the 15th Amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true the each of the other articles (meaning the 13th and 14th amendments, my parenthesis) was addressed to the grievances of that race, and designed to remedy them as the fifteenth."

The federal courts have certainly used the 14th amendment as a blanket grant of power to enforce the Bill of Rights against the states. Whether that's good or bad is up to you, but it is not what was intended by the 14th amendment.