States Rights vs Bill of Rights

[Cosmoline]

You're correct about the Supremacy Clause. The feds have the POWER to pass a Constitutional provision which restricts the states, and always have. The Constitution itself takes certain key powers away from the states, such as foreign diplomacy and the ability to overrule the feds. The question is what the intent of the framers was when they wrote the BOR. If you look to the First, it reads "CONGRESS shall make no law," and this is a good indication of what they were thinking. They BOR does not apply to the states on its own because it was never intented to apply to the states on its own. It took the adoption and ratification of the 14th to do that. Once that was done, the BOR because the supreme law of the land to the extent it was incorporated.

 

[ctdonath]

how can the Supreme Court tell the state they can not ban handguns

Possession of that tool is protected by the 2nd Amendment, as Heller just ruled.
The 14th Amendment says that the states must respect all the rights enumerated in the Bill of Rights.
Ergo, the Supreme Court can tell the state it must respect the 2nd Amendment, and thus not ban handguns.

 

[LB7_Driver]

States' rights are the foundation of our system of government.

When someone talks of "States Rights", they're not referring to "rights".

For example:

Amendment Ten:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (emphasis added)

Nothing there about RIGHTS. Its only talking about powers.

Hugh Damright,
I say that there's not such thing as "State's Rights" not to lessen the power and authority states use; My point is that no level of government (federal, state, county, or city) has any rights at all! All RIGHTS are retained by the people. All rights.

This one point is the cornerstone of the foundational concepts this county was created upon.

People have RIGHTS, POWERS, and AUTHORITIES.
People delegate some of their powers and authorities to the various levels of government.
People do not (can not!) delegate their rights.

Rights, like responsibility, cannot be delegated.

Also, the federal Constitution does not bestow any rights to the government, nor does any state constitution or charter. Read them with an eye for this point and you'll see that this is true.

 

[hugh damright]

When someone talks of "States Rights", they're not referring to "rights".

Of course they are. They are talking about the reserved rights of sovereign States in our federal system.

Nothing [in the Tenth Amendment] about RIGHTS. Its only talking about powers.

If the Tenth Amendment has nothing to do with rights, then why is it in the Bill of Rights? The Tenth Amendment is the "States' Rights Amendment". It is a reincarnation of the Second Article of Confederation, which said that each State retains it rights. Also, many of the requests for the Tenth Amendment used the term "rights" in regard to the States. IIRC, they referred to the States' independence, freedom, sovereignty, jurisdiction, powers, and rights.

My point is that no level of government (federal, state, county, or city) has any rights at all! All RIGHTS are retained by the people. All rights.

The way you tell it, a nation has a power to declare war but no right to declare war. I think it is libertarian nonsense. Governments have the right to exercise their powers. IIRC, the Federalist Papers have at least two or three references to the rights of the State governments.

But you seem to think that a State is a government? A State is first and foremost a body of people, and it is this body of people which the term "States' rights" often regards. IIRC, four of the original bills of rights of the original States declared "that the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same" ... this would be a collective right of the people of each State i.e. a States' right.

This one point is the cornerstone of the foundational concepts this county was created upon.

States' rights are the foundation of our frame of government.

 

[Zoogster]

Did the states not agree to the Bill of Rights when they chose to join the Union?

 

[JJY]

If the Bill of rights and the Constitution only effects the Federal level and not the state then how can the Supreme Court tell the state they can not ban hand guns.

Because DC is not a state - it is under the control of the federal government.

 

[JJY]

quote from heller on this very point - whether or not the 2nd amendment is "incorporated" against the states - heller did not answer this question:

With respect to Cruikshank’s continuing validity on incorporation,
a question not presented by this case, we note that Cruikshank also
said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by
our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252,
265 (1886) and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed
that the Second Amendment applies only to the Federal Government.

 

[LB7_Driver]

They are talking about the reserved rights of sovereign States in our federal system.

"They" might think that's what they're talking about. Unfortunatly for them, they know not what they say.

Show me where (in the Federal Constitution, or any state/commonwealth constitution) where any part of government is granted or conferred rights.

I think you'll find that government entities are delegated powers and authorities, and never rights.

Therefore, only people have rights. We delegate different power and authority to the differing structures of the government we create. States have different power and authority than the federal government; neither have rights.

By design, some of the powers & authorities we delegate to the state are off-limits to the federal government's power & authority. This is what you are referring to when you say "state's 'rights'".

It is also interesting to note that states do not have unlimited power or authority. For instance, as per the 14th amendment, a state cannot infringe upon rights protected by the US Constitution.

...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property,...

Show me that I'm wrong - you are challenged!

 

[El Tejon]

If the Tenth Amendment has nothing to do with rights, then why is it in the Bill of Rights?

Because the Bill of Rights applies to individuals not States. The Tenth Amendment is very clear in making a distinction between States and individuals.

Also, many of the requests for the Tenth Amendment used the term "rights" in regard to the States. IIRC, they referred to the States' independence, freedom, sovereignty, jurisdiction, powers, and rights.

But Madison did not. The whole "States' Rights" nonsense is a rehash of the Lost Causers to justify their treatment of Blacks after the Civil War.

It's over, Lost Causers, you got your backsides handed to you in 1865. The 14th Amendment extended the BoR to the States to protect Blacks but you treat it as some form of oppression. The Constitution guarantees a republican form of government and the rank oppression that Blacks faced meant that their rights were being trampled by State governments and that was not permissible.

Governments have the right to exercise their powers.

Depends if you want to say "right" or power or authority. These governments are still subject to state and the federal constitutions and cannot act without the governed.

States' rights are the foundation of our frame of government.

Limited government is the foundation of our frame of government. Subject to the state constitutions and the federal Constitution. As Reconstruction showed, a state, county or city can tyrannize as well as a federal government.

 

[LB7_Driver]

If the Bill of rights and the Constitution only effects the Federal level and not the state then how can the Supreme Court tell the state they can not ban hand guns.

Because DC is not a state - it is under the control of the federal government.

This is true, and this is why people are discussing "incorporation", and what level of incorporation will be applied to the Heller decision.

 

[LB7_Driver]

The way you tell it, a nation has a power to declare war but no right to declare war.

No, actually, that is not the way I tell it.
The federal government has the authority to declare war. It certainly does not have the right to do so.

Governments have the right to exercise their powers.

Nonsense!
Governments have the AUTHORITY to exercise the power delegated to them.

 

[Bartholomew Roberts]

Jim March did a nice synopsis of the incorporation debate recently. As he noted, it isn't by accident that the infamous Dred Scott decision uses the words "privileges and immunities" some 30 times in denying blacks any type of equal access to the Bill of Rights and the 14th Amendment uses the same "privileges and immunities" language. I would have to say that it seems like the framer of the 14th Amendment would have a clearer idea of its purpose than opposing Senators, many of whom did not even wish for blacks to be accorded equal rights - EVER.

The author of the 14th made it abundantly clear that it was his purpose to overturn Dred Scott (and one of the privileges and immunities mentioned in Dred Scott is that of the "right to keep and carry arms wherever they went."

Based on that alone, I would suggest that even if you could fire up the wayback machine and take us back to 19th century opposition view of the 14th Amendment as you suggest, the Second Amendment would still be one of the provisions intended to be applied to the states.

 

[El Tejon]

No need to fire up the Wayback Machine, we can just read the Congressional Record. It is very clear that the Framers intended the 14th to apply to the states, no matter how much the Lost Causers squawk about their beloved "heritage, I say, I say, and traditions [of oppression], suhr, of States' Rights, I say, I say."

The Lost Causers were deeply concerned about Blacks having guns. This was their primary motivation in attacking the 14th Amendment, then and now.

 

[hugh damright]

States have different power and authority than the federal government; neither have rights ...Show me that I'm wrong.

I already have. As I stated, the Articles of Confederation declared that the States rights were reserved, the Federalist Papers refer to the rights of the State Legislatures, and the requests for the Tenth Amendment, the "States' Rights Amendment", referred to the rights of the States. The term "States' rights" has been in the dictionary for well over a century now ... I see no point in you making up your own language, the accepted term is "States' rights".

And it still sounds like libertarian nonsense to me to say that a people have a power to alter and abolish government but no right to do so, a power to ordain and establish a Constitution but no right to do so, a power to declare war but no right to do so ... it reminds me of something I once read in the record of the reconstruction congresses, where yankees admitted that States had certain powers under the Constitution, but questioned if they had a right to exercise those powers.

The Tenth Amendment is very clear in making a distinction between States and individuals.

Or maybe it's clear as mud ... Patrick Henry said that they only added "or to the people" to muddy the water and confuse the intent.

I understand the Tenth to say that undelegated powers in Virginia are reserved to the government of Virginia or to the people of Virginia if we have not delegated the power in question ... the point being that what the States did not delegete remain intrastate affairs.

The whole "States' Rights" nonsense is a rehash of the Lost Causers to justify their treatment of Blacks after the Civil War.

Or maybe this whole yankee pretense that States don't have rights is reconstruction propaganda intended to subvert our frame of government into something wholly national which yankees might then control with their simple majority, because yankees are imperialists.

The 14th Amendment extended the BoR to the States to protect Blacks but you treat it as some form of oppression.

First off, the 14th does represent oppression. My region was put under military rule until we agreed to the 14th. The war was over and the States were back in the Union, and when the South started voting against the 14th we were put under military rule. Virginia became "Military District Number One". If that isn't oppression, I don't know what is.

If we pretend that the 14th was properly ratified and is worthy of our respect, then I would say that it was intended to extend certain P&I to negroes or rather to all races under US jurisdiction (as opposed to Indians on Reservations). If these P&I are so broad as to include the USBOR, then why wouldn't the P&I include the right to vote? Certainly the right to vote is a fundamental political right in a republican form of government. Yet the 14th's P&I did not include the right to vote and the 15th was needed for that.

The Constitution guarantees a republican form of government and the rank oppression that Blacks faced meant that their rights were being trampled by State governments and that was not permissible.

The Constitution's guarantee of a republican form of government was intended to preserve the existing forms of State government which were considered to be republican in nature, it was not intended to empower the US to overturn and reconstruct the State governments.

To avoid hissy fits over race, let's pretend that the slaves were white and were captured from primitive tribes in the woods of foreign lands. And these white slaves were kept ignorant. And a State like SC had more slaves than citizens. Now, if the bottom rail was put on top, as they said, such that the educated and property owners were suddenly a minority, and the ignorant white freedmen could control the government, is that a republican form of government, when the property owners lose their voice in government and those without property determine the property taxes and how they are spent?

the infamous Dred Scott decision uses the words "privileges and immunities" some 30 times in denying blacks any type of equal access to the Bill of Rights and the 14th Amendment uses the same "privileges and immunities" language. I would have to say that it seems like the framer of the 14th Amendment would have a clearer idea of its purpose than opposing Senators

The 14th was needed to make the civil rights act part of the Constitution. The civil rights act listed out the privileges and immunities, and there was no correlation with the USBOR. If the civil rights act had listed the RKBA as one of the P&I then I think that would be evidence that the 14th's P&I embraced the RKBA. I realize that if we go shopping for our favorite definition of "P&I" then we might pick Taney's dicta in Dred Scott, but I think a more rational approach is to refer to the civil rights act.

Of course the 14th was intended to overturn Dred Scott because Taney explained that negroes were not citizens and the 14th made them citizens ... I don't think we can conclude that Taney's description of the P&I is binding upon the 14th, especially when the civil rights act had a different enumeration of the P&I.

It is very clear that the Framers intended the 14th to apply to the states

Well of course the 14th applies to the States, it says "no State shall" in there. But it does not say anything about the US Bill of Rights. Isn't the important thing what the States understood themselves to be ratifying ... and how were they to know that they were ratifying an amendment which made the USBOR binding against the States when the amendment in question didn't say anything about that?

The Lost Causers were deeply concerned about Blacks having guns. This was their primary motivation in attacking the 14th Amendment, then and now.

The civil rights act said nothing about the RKBA, so what was the primary motivation in attacking that?


...

I think it might help, when we go back and read the US Congressional record from the 1860's, to realize that only one side is represented. Of course they blame it all on the South. But in reality, the North had black codes that were the most extreme and these were also the object of the 14th. For instance, Illinois and Indiana had Constitutions which would not allow any negro or mulatto to move into the State. And so the civil rights act was needed to extend to negroes the right to move to any State, to own property there, reside there, and have equal protection and due process of the law. And the 14th was needed to make the civil rights act part of the Constitution. Now let's look at the enumeration of P&I in the civil rights act:

"to make and enforce contracts, to sue, be parties, and give evidence, inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property

When I read that, I do not see the USBOR.

I think a simple view of the reconstruction amendments would begin with the 13th freeing the slaves but not making them citizens ... oops ... then the 14th making them citizens with P&I but not giving them the right to vote ... oops ... then the 15th giving them the right to vote. It kind of flows and makes sense, in a blundering kind of way, doesn't it? In contrast, it seems an aberration to say that the 13th freed the slaves and then the 14th made the USBOR binding against the States.

 

[Bartholomew Roberts]

The 14th was needed to make the civil rights act part of the Constitution. The civil rights act listed out the privileges and immunities, and there was no correlation with the USBOR.

"In debate on S. 61, the Civil Rights Bill, some Western senators wished to exclude Indians and Chinese from citizenship. Williams of Oregon argued that if Indians were citizens, then state laws that prohibited whites from selling arms and ammunition to Indians would be void.[12] At a time when the suppression of Indians and the seizure of their lands was proceeding in earnest, it was considered unacceptable to recognize a right of Indians to keep and bear arms. Thus, the Senate voted to define all persons born in the United States, without distinction of color, as citizens, "excluding Indians not taxed."[13]"

If the privileges and immunities in the Civil Rights Bill were somehow not the same ones in Dred Scott, then why this concern? For that matter, why use the phrase "privileges and immunities" specifically?

Further, the first draft of the 14th Amendment mentioning "privileges and immunities" was made on January 27 and predates both the Freedmen's bill and the Civil Rights bill.

Of course the 14th was intended to overturn Dred Scott because Taney explained that negroes were not citizens and the 14th made them citizens ... I don't think we can conclude that Taney's description of the P&I is binding upon the 14th, especially when the civil rights act had a different enumeration of the P&I.

Don't you think it a little disingenuous to totally ignore the fact that John Bingham, as author of the 14th Amendment, made it clear that he intended to apply the first eight amendments to the states via the 14th?

"Representative Robert Hale of New York saw no need for the amendment, because he interpreted the existing Bill of Rights to bind not just Congress but also the States: "Now, what are these amendments to the Constitution, numbered from one to ten, one of which is the fifth article in question? . . . They constitute the bill of rights, a bill of rights for the protection of the citizen, and defining and limiting the power of Federal and State legislation."[29]

Bingham responded that the proposed amendment would "arm the Congress ... with the power to enforce this bill of rights as it stands in the Constitution today."

Source for both quotes (and many more challenging your unique interpretation of the 14th) here:
http://www.constitution.org/col/intent_14th.htm

 

[gc70]

The Lost Causers were deeply concerned about Blacks having guns. This was their primary motivation in attacking the 14th Amendment, then and now.

This is a generalization that promotes a racially-based view of the 14th Amendment to the denigration of other views. There is no fundamental dichotomy in celebrating the 14th Amendment's realization that "all men are created equal" while simultaneously mourning the passing of the structure of the federal government envisioned by the Founders.

The Founders created a federal government of limited and enumerated powers, with a focus on mutual defense and foreign relations. Civil rights fell under state authority - an arrangement that was so highly valued that the Bill of Rights was demanded to specifically bar the encroachment of federal authority in that arena. As originally structured, our government provided the flexibility for a multitude of variations of the social compact in the various states. The 14th Amendment killed that opportunity for diversity and replaced it with a hopefully benign, one-solution-for-everyone straightjacket of federal power.

 

[hugh damright]

the first draft of the 14th Amendment mentioning "privileges and immunities" was made on January 27 and predates both the Freedmen's bill and the Civil Rights bill.

Does the 14th predate the civil rights bill? You say that the first draft of the 14th Amendment was drafted on the 27th, but previous to that, on the 12th, was the motion to consider the Freedmen's bill (S.60) and the Civil Rights Bill (S.61). And both of these bills spelled out the privileges and immunities as I have described. It seems to twist the truth to say that the first draft of the 14th predates the passing of the civil rights bill, when it appears that the draft of the bill preceded the draft of the amendment.

 

[ConstitutionCowboy]

I would place the priority and intent squarely upon the supreme power of the 14th Amendment as of it's ratification over any act of Congress regardless of when it or any regular act of Congress was drafted, or any act of Congress passed. That's the way the law works under the authority of Congress as granted and/or amended in the Constitution.

Whether a law was passed prior to the ratification of an attendant amendment or after such ratification, the amendment rules and governs what such a law can or can't do; even whether such a law even stands.

Woody

Our government was designed by our Founding Fathers to fit within the framework of our rights and not vise versa. Any other "interpretation" of the Constitution is either through ignorance or is deliberately subversive. B.E. Wood

 

[Bartholomew Roberts]

Does the 14th predate the civil rights bill?

No it doesn't. Thanks for making me look at that further.

You say that the first draft of the 14th Amendment was drafted on the 27th, but previous to that, on the 12th, was the motion to consider the Freedmen's bill (S.60) and the Civil Rights Bill (S.61). And both of these bills spelled out the privileges and immunities as I have described.

The Civil Rights Bill was introduced on January 5, 1866 and was drafted by a different committee than the one proposing the 14th Amendment. This original version contained the phrase "civil rights and immunities" and went on to list the right to make contracts, serve on juries, etc.

The first draft of the 14th Amendment was actually January 12th. It read:

"The Congress shall have power to make all laws necessary and proper to secure to all persons in every state within this Union equal protection in their rights of life, liberty and property."

On January 27, Bingham, Boutwell, and Rogers adopted this language:
"Congress shall have power to make laws which shall be necessary and proper to secure all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in every State the same immunities and also equal political rights and privileges."

Senator Johnson made a motion to strike the privileges and immunities clause and lost. Now it seems strange to me that if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?

By the way, here is a link to the 39th Session of Congress Historical Records. You can find the actual bills and debates there in their entirety.

I noticed you didn't comment on the earlier link offering a lot more information indicating the 14th Amendment was intended to extend the Bill of Rights to the States, so you may not find these debates all that useful as well since the intent to extend the Bill of Rights to the states is repeatedly expressed in the records.

 

[El Tejon]

The 14th Amendment killed that opportunity for diversity and replaced it with a hopefully benign, one-solution-for-everyone straightjacket of federal power.

Yes, of course, when the thugocracies of the South proved themselves incapable of allowing for a republican government then it is the duty of the federal government to enforce republican ideals as the Constitution provides for. To not do so would dishonor the dead of the saviors of the Republic and vindicate the treason of the South.

Don't you think it a little disingenuous to totally ignore the fact that John Bingham, as author of the 14th Amendment, made it clear that he intended to apply the first eight amendments to the states via the 14th?

Yes, of course, but the Lost Causers cannot ever concede this point. To admit that the Framers' motive was to extend the BoR to the States undercuts the authority of the Southern thugocracies to oppress Blacks.

 

[Glock Glockler]

To admit that the Framers' motive was to extend the BoR to the States undercuts the authority of the Southern thugocracies to oppress Blacks.

Tejon, wasn't slavery fully legal under the Federal govt, specifically affirmed in Dred Scott? It seems a bit disingenuous to criticize the Southern states for what the Feds say is okay.

 

[Aguila Blanca]

I hold the position that the 2nd Amendment has always applied to the states, even without the 14th Amendment. (Now, if I could just get the Suprme Court to sign onto MY interpretation.)

Here's my logic, for whatever it's worth: The gentlemen who penned the Constitution and the BOR were the educated men of the day. They knew law, they knew how to write, and they understood that words have meaning.

So ... in penning an amendment dealing with religion, they wrote that "Congress [i.e.the Federal government] shall make no law respecting an establishment of religion ..." That's clear; it applies to the [federal] Congress. It does not apply to the states. Simple.

In writing that The People should have a degree of protection against government abuse, in the 4th Amendment they wrote, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..."

Thus, we see from the 1st Amendment that they knew to difference between the Federal government and the states, and when they wished to limit only the Federal government they were capable of saying exactly that. In the 4th Amendment, they showed us that they were conversant with the word "reasonable," and that where they were willing to allow for reasonable government intervention they were capable of prohibiting only "unreasonable" search and seizure.

Which brings us to the 2nd Amendment. In which they did NOT say anything about its applying only to the Federal government, and they did NOT say that the RKBA shall not be "unreasonably" infringed. They made a blanket statement that the RKBA "shall not be infringed." At all. By anyone. Period.

To me, in the context of the other articles of the B.O.R., that plainly says the 2nd Amendment is binding on the states as well as on the Feds, and that it takes ALL restrictions on the RKBA off the table. IMHO it leaves no wriggle room for "reasonable regulations." Regulations ARE infringements. They are barred by the 2nd Amendment.

That's my story, and I'm stickin' to it.

 

[El Tejon]

Tejon, wasn't slavery fully legal under the Federal govt, specifically affirmed in Dred Scott? It seems a bit disingenuous to criticize the Southern states for what the Feds say is okay.

At the Framing of the 14th in 1866? No, slavery was explicitly illegal under booth the Emancipation Proclamation and the 13th Amendment. Remember, we just celebrated Juneteenth (O.K., some of us did; the Lost Causers, not so much).

The South started the Civil War to keep their slaves. They done got whupped and whupped good and slavery was abolished where the blue coats went.

The 14th Amendment was passed to protect the freed slaves by extending the BoR to them so that even in the Southern states they could fight to protect themselves and their rights.

 

[ilbob]

At the Framing of the 14th in 1866? No, slavery was explicitly illegal under booth the Emancipation Proclamation and the 13th Amendment. Remember, we just celebrated Juneteenth (O.K., some of us did; the Lost Causers, not so much).

The Emancipation Proclamation only "freed" slaves in southern states not under union control. Slaves in border states and in union controlled areas were not affected.

The legality of said proclamation is pretty dubious. If the south was still bound by the constitution, then the north would have to pay for any property taken (such as slaves), and they never did pay for them. The constitution was very clear that slavery was not prohibited, and no president has any authority to make such a law on his own accord, unless he has control of the guys with guns and is willing to use them against anyone who objects (as Lincoln was so willing to do).

In the end, the legality of slavery and the 13th and 14th amendments was settled by force of arms, not by law. The guys that win the war get to decide how to run things.

 

[Bartholomew Roberts]

If the south was still bound by the constitution, then the north would have to pay for any property taken (such as slaves), and they never did pay for them.

Hmmm, I was under the impression that a major reason for the war being fought was that slaves were not property; but actual human beings who had certain unalienable rights granted to them by their creator.

It seems to me that only one of these premises can be true:

1. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and pursuit of Happiness.

2. Slaves are property that can be counted as 3/5 of a person for representation purposes but can otherwise not be returned to "human" status without paying the owners.

So which one of those is the false statement then? I would argue that because the institution of slavery is inherently evil and that one man has no "property right" in the involuntary labor of another man, there was never any property to be compensated. I don't see how writing a falsehood (black people are property) in the Constitution makes it any less false?