Constitutional/Heller Question

[Cosmoline]

Disingenuous legal doctrine aside, the Bill of Rights has always applied to the states.

Not really, no. That's why the text of the First, for example, is directed at CONGRESS, and says bupkus about state legislatures. It wasn't until the 14th that the BOR was applied to limit the power of the several states as well as the federal government. Another Okie is right on the money. At the time of the founding the states were not seen as the source of danger. The founders were concerned that a central government would grow large and if left unchecked would quickly become a new form of tyranny.

linked inextricably by the fact that there is only one court system in this country, all courts being inferior and answerable to the one Supreme Court,

Where did you get that idea? There has never been a single court system in the country. There is a federal court system under Art. III and an array of court systems in the states. Each state has its own court system and its own Supreme Court. The state supreme courts are only "inferior" to the SCOTUS on certain federal issues. For example, the only way the US Supreme Court could overule the Alaska Supreme Court is on some aspect of federal law, including those portions of the BOR applied to the states. The US Supreme Court would never be able to tell our supreme court, for example, whether or not it could recognize the tort of Negligent Infliction of Emotional Distress. Though it could overrule the court on a question of whether a particular punitive damages judgment was so great as to violate the norms of due process guaranteed by the 14th. The lesser federal courts are merely sibling courts to the states, and will defer to the states on issues of state law just as the state courts defer to them on questions of federal law. You can't appeal from an Alaskan superior court jury verdict to the 9th Circuit ;-)

 

[Ed Ames]

It's not so much that the states weren't seen as a source of danger but the states were the ones ratifying the constitution. No state wanted to give up too much autonomy. Nor did they want to homogenate by adopting a single constitution for all of the member states.

 

[ConstitutionCowboy]

Nice try, Cos.

Article III, Section 1. "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...."

"Ordain" -

To Appoint; to decree. - that says "Such-and-Such Court" is found to be worthy and is accepted into the system. That's how the several states get their courts into the system. Congress sets the standards, the states meet the standards, and viola! The state's courts become part of the system. -​

"Establish" -

5. To form or model

6. to found; to build firmly; to fix immoveably.

That would be the inferior tribunals Congress would create as authorized by Article I, Section 8, Clause 9.​

It's a good system. State matters are routinely brought before the Supreme Court. Just about every person about to be executed for a murder appeals to the Supreme Court. The Supreme Court will actually hear some of them. Not all murders are covered under United States law.

Woody

PS: The definitions are from Johnson's Dictionary, 1755.

 

[gc70]

"Jurisdiction" must be missing from Johnson's Dictionary, 1755.

 

[ConstitutionCowboy]

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

Woody

 

[gc70]

That's how the several states get their courts into the system. Congress sets the standards, the states meet the standards, and viola! The state's courts become part of the system.

Point out WHERE Congress has "ordained" or "established" the state court systems.

Be specific - cite a law passed by Congress that "sets the standards" for the state courts to meet to "become part of the system."

 

[gc70]

Not all murders are covered under United States law.

Most murders are under the jurisdiction of state courts. The vast majority of murder trials never involve circumstances that would allow any federal jurisdiction.

When a state murder trial results in a death sentence, the murderer can try to claim protection under the "cruel and unusual punishment" provisions of the 8th Amendment (as incorporated by the 14th). It is the 8A claim that gives federal jurisdiction, and then only with respect to the nature of the punishment.

 

[ilbob]

It's a good system. State matters are routinely brought before the Supreme Court. Just about every person about to be executed for a murder appeals to the Supreme Court. The Supreme Court will actually hear some of them. Not all murders are covered under United States law.

The federal courts do not decide matters of state law. They only decide matters of federal law.

What happens with these kind of cases is that the defendant alleges a violation of federal law or some violation of a federal constitutional provision, and the federal court rules on that. Not on the matter of state law. It is possible a federal court might decide a state law is invalid due to some federal law, but that is not the same thing as the federal court ruling on a state law issue.

 

[hugh damright]

It's not so much that the states weren't seen as a source of danger but the states were the ones ratifying the constitution.

I think it was a matter of constitutionalism and federalism. A constitution frames a government and a BOR limits that government. If the State governments were framed by the US Constitution, then I think the USBOR would naturally bind the States. I see a desire to have the USBOR limit the States as a desire to trample constitutionalism and/or federalism.

 

[HonorsDaddy]

matt king...

you said that you take the 'congress shall make no law...' portion of the 1st amendment to apply to the rest of the BOR as well. Would you please explain what legal language or even English grammar would lead you to that conclusion?

That was without a doubt one of the most bizarre comments I have ever heard regarding the BOR.

 

[ConstitutionCowboy]

To gc70 and ilbob, since you two have decided to jump in for Double Naught Spy, how about answering my questions, with your explications attached, before I post my response to your query, gc70. Here are my questions reposted so you won't have to scroll to find them.

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

Woody

 

[hugh damright]

you said that you take the 'congress shall make no law...' portion of the 1st amendment to apply to the rest of the BOR as well. Would you please explain what legal language or even English grammar would lead you to that conclusion?

That was without a doubt one of the most bizarre comments I have ever heard regarding the BOR.

There is nothing bizarre about it, and that is the proper reading. The intent was to limit the US, they didn't have to say so with every sentence. The Virginia BOR doesn't say in every article that the intent is to limit Virginia, but it is understood. The USBOR has a preamble which explains that the intent was to limit the powers created by the US constitution. And it is a fact under constitutional law that the USBOR was not intended to limit the States.

Further, if the USBOR limits the States, then it empowers the US to limit the States, and we don't just assume that the US has powers unless the Constitution says otherwise ... the Second Amendment would have to say something like "No State shall infringe on the RKBA; Congress shall have power to enforce this provision by legislation". Since it says no such thing, the term "shall not be infringed" means "by Congress".

Why in the world would someone assume that the bor of one government must limit other governments unless it specifies otherwise? In Baron v Baltimore, the SCOTUS said:

"the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes."

It's not a question of rules of grammar, its a question of rules of constitutionalism.

 

[gc70]

To gc70 and ilbob, since you two have decided to jump in for Double Naught Spy

Double Naught Spy has not posted in this thread.

 

[another okie]

hughdamright: What we call the first amendment was not originally the first, but the third, so to argue that the "Congress" language of the first modifies all of the first eight is straining a little.

While that is a poor argument, it is true that the founders intended these as restrictions on the power of the General Government.

The founders found it so obvious that these amendments only applied to the General Government that they did not see the need to spell it out.

In this case a little history goes a long way:

For example, Madison actually made a motion in Congress that the amendments bind the states as well, but it was defeated.

According to Page Smith, the motion was defeated because Congress feared such a provision would give too much power to the federal government. Mr. Smith does not expand on this, but he means that such a provision would have given the federal government the power to interefere in state government matters. Page Smith, "The Constitution: A documentary and narrative history," page 290.

 

[hugh damright]

What we call the first amendment was not originally the first, but the third, so to argue that the "Congress" language of the first modifies all of the first eight is straining a little.

I don't think anyone is saying that because the First Amendment comes first, and it says that Congress shall not infringe, then that means that it applies to all the amendments. The "Congress" language doesn't modify the other amendments, it just sheds some light on them. What seems an incredible strain is the assertion that since the First Amendment says "Congress shall pass no law", it means that any amendment without that language limits the States.

 

[ConstitutionCowboy]

Double Naught Spy has not posted in this thread.

Oops! My bad. I was thinking of another thread and another question. It is Cosmoline you and ilbob have tag-teamed.

I'll repeat my questions for your convenience:

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

Woody

 

[hugh damright]

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

I don't know how you come up with the idea of sitting in one State and suing another State in a third State's judicial system.

If a Citizen of Oklahoma visits Texas, and has some conflict there, he is able to use the Texas judicial system to fight it out in the courts. But he doesn't have any right to fight it out in the federal courts, unless there is a federal issue.

 

[gc70]

The question in #30 is a diversion and unrelated to the unsupported claims made in #28. Nevertheless...

11A recognizes the sovereign immunity of states. As a general proposition, you can not sue a state unless the state gives permission for you to do so. If the state grants permission, Article III jurisdiction applies. Here is more information about Article III and the 11th Amendment.

Okay, Woody - now it is your turn to answer the question in #31:

Point out WHERE Congress has "ordained" or "established" the state court systems.

Be specific - cite a law passed by Congress that "sets the standards" for the state courts to meet to "become part of the system."

 

[shield20]

Okie,

Do you have more specifics on Madison's proposal you mention? I read in the debates where he had wanted a separate "No state shall..." amendment somewhat similiar to the what became the 1st, but it was rejected. I have not seen so explicit a demand for other amendments to bind the States.

 

[shield20]

Oh and gc, (you'll like this!) on this same subject is some of the strongest language I have come across about the intent of the scope of the BoR:

[re: the "No State shall..." proposal by Madison]

MR. TUCKER: this is offered, I presume, as an amendment to the constitution of the United States, but it goes only to the alteration of constitutions of particular states. It will be much better, I apprehend, to leave the state governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much. I therefore move, Sir, to strike out these words.

MR. MADISON conceives this to be the most valuable amendment in the whole list. If there were any reason to restrain the government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the state governments. He thought that if they provided against one, it was as necessary to provide against the other, and it was satisfied that it would be equally grateful to the people.

This was Aug 17th however - so the question of "form" regarding how the amendment process would take place (separate list or revised constitution had not been resolved). And the "Congress shall make no law..." had already been (substantially) agreed to; so maybe this still isn't conclusive.(??)

 

[gc70]

shield20,

Try the Annals of Congress; the BOR debate starts here and continues here.

 

[shield20]

Oh I know - I read them constantly! (just can't remember where & when who said what! )

 

[ConstitutionCowboy]

gc70,

The question in #30 is not a diversion. It's genuine. If what has been claimed is true, that the several state courts are autonomous in regard to the federal courts, I should be free, under that system, to bring suit against a state not my own in a third state(or even in my own state). Since the Eleventh Amendment limits the jurisdiction of the federal judiciary, I can't bring such a suit to the Supreme Court - ever - even on appeal. How about an answer? Invoking Article III if a state gives permission sidesteps the issue because now you are saying the courts are actually one and the same in that now my state matter can be addressed federally.

The Eleventh Amendment doesn't recognize any "sovereign immunity" of the several states. It limits(repeals) a certain federal judiciary "original jurisdiction" originally granted to the federal judiciary in Article III.


I've got my response to #31 all composed and saved. When you answer my questions in #30, I'll post it.


I repeat:

Are you saying I can bring a lawsuit against a state in another state so long as I don't bring that lawsuit up in the Supreme Court? Meaning I, living in Oklahoma, could bring a suit against Texas in a New Mexico court? In all cases in which a state is a party, the Supreme Court has original jurisdiction, but the Eleventh Amendment prohibits me as a citizen of one state to bringing that suit against another state in the United States Supreme Court because the judicial power of the United States does not extend to such a case.

Those are separate systems according to you, so I should be free to do that, right? Or, does the first sentence in Article III, Section 1, actually mean what it says?

I'm not trying to trick you, I'm only trying to show that the judicial power in the United States all falls under the jurisdiction of the one Supreme Court. My answer that I'll post when you answer my question shows it.

Woody

 

[Aguila Blanca]

When a state murder trial results in a death sentence, the murderer can try to claim protection under the "cruel and unusual punishment" provisions of the 8th Amendment (as incorporated by the 14th). It is the 8A claim that gives federal jurisdiction, and then only with respect to the nature of the punishment.

But most appeals of murder convictions are not based on cruel and unusual punishment. I believe most, in some way or another, are based on some claim of violation of due process.

 

[gc70]

The Eleventh Amendment doesn't recognize any "sovereign immunity" of the several states. It limits(repeals) a certain federal judiciary "original jurisdiction" originally granted to the federal judiciary in Article III.

The previous reference about the 11th Amendment has "State Immunity" as the first entry in the Table of Contents and entails an 18-page discussion.

But Woody has read the Constitution and has spoken, so we can ignore the Constitutional Analysis and Interpretation by the Congressional Research Service and Library of Congress.

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Aguila Blanca: I was trying to keep my examples simple.