States Rights vs Bill of Rights

[El Tejon]

but it is a different matter to say that the Second Amendment binds the States.

No, it is not. The Framers intended the Second Amendment to apply to the states via the 14th Amendment. A state cannot violate the Second Amendment just as it cannot violate the First or Fourth or what have you.

How do you see the 2nd as binding the States? Do you see it as empowering the federal government with jurisdiction over state gun laws?

Yes, of course. The 14th applies the BoR to the states as the Framers intended. The federal government should ensure that the states do not violate the 2nd. Just as with other rights, the federal review is a floor, not a ceiling. The states are always free to have more protection but not less protection.

The states are not free to violate the rights of its citizens. This is why the Framers of the 14th Amendment proposed it. The states were violating the rights of its citizens, African-Americans. The 14th was self-help for African-Americans and a warning to the South to treat Blacks as citizens. The Lost Causers came up with a myriad of convoluted reasoning to rationalize why they were allowed to savage Blacks including pretending the United States Constitution did not apply in Virginia or Mississippi.

Today the states of Illinois, Massachusetts, New Jersey, California, inter alia are violating the rights of its citizens. The state governments have come up with a myriad of reasons why they are allowed to violate the rights of its citizens--"the children", "crime", "dual standards for large cities", inter alia. Richard Daley and Kenny of San Fran are pretending that the Constitution does not apply to Chicago or San Fransico, just as Early and Nathan Bedford Forrest were running around saying that the U.S. Constitution did apply to Virginia or Tennesse.

The federal government must correct these abuses of civil rights just as the Framers intended. States were not allowed to violate the rights of its citizens in the 1860s, nor in 2008.

The way some people here view the USBOR, the idea seems to be that the federal courts shall have original jurisdiction over all matters concerning privileges, immunities, and rights.

Yes, this is the way it works--federal courts have jurisdiction over federal matters (and some state matters). When an individual complains that a state law violates the federal Constitution the individual goes to federal court. Federal courts hear matters concerning the federal Constitution. How is this difficult?

mean ... why would we want to let a State pass a law, and then have that law impact people, forcing the people to bring the law to federal court so that it could then be struck down ... wouldn't it be a lot more efficient to just put a federal court in every State and let them review all State legislation as it is passed and either veto it or let it stand?

Because this is not the way it works. Federal courts do not give advisory opinions as in other nations. A complaining party goes to federal court complaining that a state law violates the federal Constitution. The federal court then hears this federal matter.

And beyond that, if the federal courts are to have jurisdiction over our State laws, then why would we pick our own legislators, only to have them pass laws which the feds don't like and strike down ... wouldn't it be more efficient to just have the federal government appoint our legislators, so that they will pass laws which the federal government likes?

State laws must comply with the federal Constitution and federal courts should ensure that they do. The federal government does not appoint state legislators because there is no authority for the federal government to do so.

States are free to do many things. States are NOT free to violate the rights of its citizens.

 

[k_dawg]

In a just society.. NO level of gov't should be able to ignore a basic human right.

This isnt' about "states rights" or "fed's rights". But rather, the human rights of the citizens.

 

[gc70]

The Lost Causers came up with a myriad of convoluted reasoning to rationalize why they were allowed to savage Blacks including pretending the United States Constitution did not apply in Virginia or Mississippi.

Prior to the passage of the 14th Amendment, that 'convoluted reasoning' was based on the fact that the Constitution did not contain a broad grant of civil rights powers to exercise against the states. After the passage of the 14th Amendment, that 'convoluted reasoning' was based on a series of Supreme Court decisions that the 14th Amendment did not contain a broad grant of civil rights powers to exercise against the states. While the mistreatment of blacks was morally repugnant, the federal courts recognized that such acts were within the powers of the states. Simply put, no convoluted reasoning or rationalization was needed - the states held the power to mistreat blacks and exercised that power.

 

[gc70]

And beyond that, if the federal courts are to have jurisdiction over our State laws, then why would we pick our own legislators, only to have them pass laws which the feds don't like and strike down ... wouldn't it be more efficient to just have the federal government appoint our legislators, so that they will pass laws which the federal government likes?

State laws must comply with the federal Constitution and federal courts should ensure that they do. The federal government does not appoint state legislators because there is no authority for the federal government to do so.

Some would consider state legislatures of little value in a system thoroughly dominated by the federal government.

Patrick Henry - Virginia Ratifying Convention:
What shall the States have to do? Take care of the poor--repair and make highways--erect bridges, and so on, and so on. Abolish the State Legislatures at once. What purposes should they be continued for? Our Legislature will indeed be a ludicrous spectacle--180 men marching in solemn farcical procession, exhibiting a mournful proof of the lost liberty of their country--without the power of restoring it.

 

[El Tejon]

Some would consider state legislatures of little value in a system thoroughly dominated by the federal government.

Government, at all levels, is not allowed to do certain things. This includes denying its citizens their rights.

Just because a state legislature instead of Congress denies me my rights does not make it legitimate; the impact is the same.

Simply put, no convoluted reasoning or rationalization was needed - the states held the power to mistreat blacks and exercised that power.

Regarding the Lost Causers, I rest my case.

 

[gc70]

Some would consider state legislatures of little value in a system thoroughly dominated by the federal government.

Government, at all levels, is not allowed to do certain things. This includes denying its citizens their rights.

Just because a state legislature instead of Congress denies me my rights does not make it legitimate; the impact is the same.

You ignore the question: why bother having state governments if they are mere rubber stamps for the dictates of the federal government or menial functionaries for trivial matters?

Regarding the Lost Causers, I rest my case.

Then you rest your case too soon, ignoring the culpability of the federal government in condoning the acts.

 

[El Tejon]

Then you rest your case too soon, ignoring the culpability of the federal government in condoning the acts.

HEY, I KNOW THAT DEFENSE: it's the "Devil Made Me Do It Defense!"

We didn't want to oppress the Blacks but those mean Yankees made us deny Blacks their civil rights. Really? Don't cha think history shows otherwise and the South was pretty darn good at denying Blacks civil rights long before there was a federal government?

So, the federal government is an oppressive tyrant because it acted to stop the oppression of Blacks in the South, AND the federal government is an oppressive tyrant because it did not act to stop the oppression of Blacks in the South. What a knight's fork for the Lost Causers.

 

[hugh damright]

but it is a different matter to say that the Second Amendment binds the States.

No, it is not. The Framers intended the Second Amendment to apply to the states via the 14th Amendment.

I was making a distinction between saying that the Second Amendment's principles are applicable to the States and saying that the amendment itself is binding upon the States. I don't see how your response fits ... it kind of seems like some of y'all just keep repeating "the 14th made the 2nd binding against the States" over and over.

The Lost Causers came up with a myriad of convoluted reasoning to rationalize why they were allowed to savage Blacks including pretending the United States Constitution did not apply in Virginia or Mississippi.

It says here you're in Indiana, which had a Constitution in the 1850's which prohibited any negro or mulatto from entering the state! Why do you pretend that the black codes were all in the South? What was y'alls myriad of convoluted reasoning that rationalized hanging a "no n-words allowed" sign on Indiana?

Today the states of Illinois, Massachusetts, New Jersey, California, inter alia are violating the rights of its citizens ... The federal government must correct these abuses of civil rights just as the framers intended

To make an aspect of government clear, let's pretend that there is only Virginia and California ... I think we can see why Californians would want to hold a Congress with Virginians and review their gun laws. But why would Virginians want to hold a Congress with Californians to review our Virginia gun laws?

Am I to understand that when you say "the Framers" that you are talking about the radical reconstruction committee of fifteen?

 

[gc70]

We didn't want to oppress the Blacks but those mean Yankees made us deny Blacks their civil rights. Really? Don't cha think history shows otherwise and the South was pretty darn good at denying Blacks civil rights long before there was a federal government?

I think the federal government was pretty darned good at ignoring Blacks' civil rights until the latter half of the 20th Century, notwithstanding the fact that 'the Framers' of the 14th Amendment deserve an "A" for effort.

-----

The 14th Amendment's passage was caught up in a Catch 22 of Congress' making. Two-thirds of the northern and western states would have readily voted for passage of the 14th. But Congress had to maintain the position that the southern states had never really left the Union or the Civil War would have been an illegitimate war against a foreign country. By counting the southern states in the Union, the 14th Amendment did not have enough support and the only way to get the required votes was to force the southern states to vote for passage under duress.

 

[ConstitutionCowboy]

Article 1, Section 9 contains a list (Clauses) of eight limits on Congress. But the word "Congress" only appears in Clauses 1 and 8.

The Bill of Rights contains a list (Amendments) of eight limits on Congress. But the word "Congress" only appears in the 1st Amendment.

The 9th and 10th Amendments explicitly name the government(s) to which they apply.

The same structure and rules of construction were used for both the Constitution and Bill of Rights.

Ah, but this is not true of the "Bill of Rights". You are treating the "Bill of Rights" as if it were a single article in the Constitution when in fact the first ten amendments - referred to as the "Bill of Rights" - are separate ARTICLES in addition to, and amendment of the Constitution as presented in the preamble to the act of Congress that came to be known as the "Bill of Rights".

Not only the foregoing, but what of your argument if that which became the First Amendment was not ratified? Without the opening statement in the First Amendment - "Congress shall make no law..." - there would be no basis to support your argument. The Second Amendment would have been the First Amendment, and would that have made all the following amendments only applicable to a well regulated militia? Of course not.

Woody

 

[gc70]

CC - good to see you back in the saddle.

You are treating the "Bill of Rights" as if it were a single article in the Constitution

No, not as an Article in the Constitution, but a document constructed similarly. The Bill of Rights is not as precise as Madison's original draft modifying the existing text of the Constitution. However, Madison was on the Select Committee that changed his original draft to a document of supplementary amendments. The structure of the final document appears to follow the same rules of construction as the Constitution, which Madison also largely drafted.

Not only the foregoing, but what of your argument if that which became the First Amendment was not ratified? Without the opening statement in the First Amendment - "Congress shall make no law..." - there would be no basis to support your argument. The Second Amendment would have been the First Amendment, and would that have made all the following amendments only applicable to a well regulated militia? Of course not.

Actually the third of the ARTICLES in addition to, and amendment of the Constitution became the 1st Amendment. However, the 3rd proposed Article / 1st Amendment was the first item in a list of items in the Bill of Rights that limited the powers of the United States government, hence the exception to the general rule of construction by naming the United States government as the target of the 1st Amendment. If the 3rd proposed Article had not been ratified, the other Articles/Amendments would have relied on the general rule of construction that a Constitution refers to the government it creates, unless explicitly stated otherwise.

 

[El Tejon]

I was making a distinction between saying that the Second Amendment's principles are applicable to the States and saying that the amendment itself is binding upon the States. I don't see how your response fits ... it kind of seems like some of y'all just keep repeating "the 14th made the 2nd binding against the States" over and over.

Because that is what happened. The Framers wanted the BoR applied to the states.

It says here you're in Indiana, which had a Constitution in the 1850's which prohibited any negro or mulatto from entering the state! Why do you pretend that the black codes were all in the South? What was y'alls myriad of convoluted reasoning that rationalized hanging a "no n-words allowed" sign on Indiana?

Ummm, because the Black Codes were in the South. The no immigration policy was in response to the command of the Northwest Ordinance's prohibition on slavery.

After the Civil War states in the North were subject to civil rights litigation. In fact the first case under the Civil Rights Act of 1866 was to enforce the contract of a Black citizen in Indiana. No one pretended that this law did not exist or did not apply to the North because of some convulted reasoning or inane reading of "States' rights."

To make an aspect of government clear, let's pretend that there is only Virginia and California ... I think we can see why Californians would want to hold a Congress with Virginians and review their gun laws. But why would Virginians want to hold a Congress with Californians to review our Virginia gun laws?

States do not review the state laws of others. Federal courts review the laws of the states.

I'm lost here, hugh, can you explain any further?

 

[Dr. Tad Hussein Winslow]

http://en.wikipedia.org/wiki/Incorporation_(Bill_of_Rights)

There ya go.

Between 1868 and the 1920s, the SCOTUS held in many cases that nearly every right in the BOR was "incorporated" via the 14th amendment due process and equal protection clauses, as applying to prohibit state and local governments from violating the rights. In U.S. vs. Cruikshank and two other cases, the courts held *specifically* that the 2A is NOT incorporated by the 14th. BUT, these cases were decided prior to this area of jurisprudence being fleshed out, where the test for incorporation was clarified. So they are arguably implicitly overruled since the test now is "fundamentalness" and clearly the 2A is fundamental, given the history of the right.

One of the ironies is that these very cases which said that the 2A is not incorporated upheld state court gun law convictions - so obviously, since they relied upon the lack of incorporation to uphold the conviction, they quite clearly imply that the right is individual - further yet revealing this whole collective right nonsense to be a total fabrication by the blissninnies.

 

[ilbob]

And beyond that, if the federal courts are to have jurisdiction over our State laws, then why would we pick our own legislators, only to have them pass laws which the feds don't like and strike down ... wouldn't it be more efficient to just have the federal government appoint our legislators, so that they will pass laws which the federal government likes?

The feds are prohibited from doing this.

Article IV
Section 4 - Republican government

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

The state would not have a republican form of government if the federal government selected state legislators.

 

[hugh damright]

The Framers wanted the BoR applied to the states.

Then why did the Framers gave us a Constitution without a BOR, and create a federal judiciary which did not have jurisdiction over matters between a citizen and his State?

the Black Codes were in the South

Black codes were in the north and the south. It is my understanding that the worst black codes were in the North. I've read that Indiana was the worst of all, yet you sit there in Indiana and say "black codes were in the South".

States do not review the state laws of others. Federal courts review the laws of the states.

The way I look at it, the federal goverment is a compact between the States. If there was only Virginia and California, then both States would elect folks who would appoint judges and some would be Virginians and some would be Californians. And so the intent, again, would be to have a panel of Virginians and Californians review the gun laws of Virginia and California, and again, I can see why Californians need Virginians to pull them up, but I can also see why Virginians do not need Californians pulling us down.

 

[El Tejon]

Then why did the Framers gave us a Constitution without a BOR, and create a federal judiciary which did not have jurisdiction over matters between a citizen and his State?

The Framers did no such thing! When the 14th Amendment was framed the BoR had been around for 75 years.

The Congressional Record is clear and even Leftists professors such as Amar have concluded that the Framers intended that the BoR be extended to the states.

Black codes were in the north and the south. It is my understanding that the worst black codes were in the North. I've read that Indiana was the worst of all, yet you sit there in Indiana and say "black codes were in the South".

Discrimination did exist in the North against Blacks. However, no one in the North was pretending that the 14th Amendment does not exist. It was the Northman that freed the slaves and then ensured their rights under the 14th Amendment.

the federal goverment is a compact between the States

See it however you wish, but the federal government is not a compact of states. "We the People", not we the states.

 

[ilbob]

See it however you wish, but the federal government is not a compact of states. "We the People", not we the states.

That seems like a tough argument to make. The states created the federal government via the Constitution, not "the people". The states ratified it, not "the people". The states get to decide on amendments to it, not the people.

 

[gc70]

See it however you wish, but the federal government is not a compact of states. "We the People", not we the states.

The Constitution was established "between the States."

The Constitution, Article VII
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

 

[hugh damright]

The Framers did no such thing! When the 14th Amendment was framed the BoR had been around for 75 years.

The Congressional Record is clear and even Leftists professors such as Amar have concluded that the Framers intended that the BoR be extended to the states.

I understand the term "the Framers" to refer to the Framers of the Constitution e.g. Madison, not the 1866 radical reconstruction committee of fifteen e.g. Bingham. I think it's rather telling that you refer to the yankee radicals as "the Framers", as if YOUR constitution was framed in 1866, as if the original intent is horrid.

Amar ... try to pay attention ... someone said that the 2nd was originally binding against the States, nothing to do with the 14th so please stop ranting ... someone said that the 2nd was originally binding against the States, and I made a distinction between saying the principle was applicable to the States and saying that the amendment itself was binding upon the states. And you replied with comments about the 14th which had nothing to do with it, and I pointed that out, and here you're still doing it. I think you're having a hissy fit.

Besides, I have already explained, the intent of an amendment is found in the consensus view of the many who ratify it, not in the view of the few who draft it. And the 14th failed anyway. OF COURSE Bingham wanted the central government to have jurisdiction over everything. But is it even within the scope of amendments to alter the very frame of government?

no one in the North was pretending that the 14th Amendment does not exist

You were saying that the South was racist and was always racist before there was a federal government, as if the North was not racist. And I'm point out the bigotry and hypocrisy in such attitudes. The State you sit in, Indiana, had the worst black code of all.

I have read in the 1862 Congressional record where the US (no Southerners to blame this on, only yankees were present) debated compulsory colonization, where they would round up every negro in every State and ship them off on boats to be colonized outside the US, leaving an all white US. That was Lincoln's dream, and the Yankee dream in 1862. But they said it just was impossible, that even if they devoted the entire US navy to the project, that negroes were increasing faster than they could be removed. And you pretend that racism is a Southern thing.

Discrimination did exist in the North against Blacks. However, no one in the North was pretending that the 14th Amendment does not exist. It was the Northman that freed the slaves and then ensured their rights under the 14th Amendment.

Gee really? You mean that blacks were made citizens just like BAM!, and it seemed to "take" in the States that were 99.5% white, while in States that were 60% ignorant black freedman it didn't "take" so well. Who would have figured?

the federal government is not a compact of states. "We the People", not we the states.

That is the fatal mistake that Bingham made. He saw the US as one big State, and he wanted to make it that way. But that is not a vision of our federal Constitution. The US is a compact between the States. That is what "federal" means. How in the world could anyone not know this??

Webster was a federalist, but when he put out his 1828 Dictionary, under the definition of "compact", it said "the constitution of the United States is a political contract between the States". And Madison explained it rather well in his response to the Virginia Resolutions:

"The other position involved in this branch of the resolution, namely, "that the states are parties to the Constitution," or compact, is, in the judgment of the committee, equally free from objection. It is indeed true that the term "states" is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconvenience is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different construction of the term "states," in the resolution, may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the "states;" in that sense the "states" ratified it; and in that sense of the term "states," they are consequently parties to the compact from which the powers of the federal government result."

 

[hugh damright]

The state would not have a republican form of government if the federal government selected state legislators.

Precisely! And if Virginians elected our state legislators, but we had (Hamilton's vision of) a federal court in Virginia with a veto power over our State laws ... would that be a republican form of government?

 

[El Tejon]

I understand the term "the Framers" to refer to the Framers of the Constitution e.g. Madison, not the 1866 radical reconstruction committee of fifteen e.g. Bingham. I think it's rather telling that you refer to the yankee radicals as "the Framers", as if YOUR constitution was framed in 1866, as if the original intent is horrid.

In discussing any amendment those that drafted it are referred to as "The Framers", that includes the 14th. Of course, Madison is usually referenced so I can understand your confusion.

"Yankee radicals"? Not radical enough some would argue.

the intent of an amendment is found in the consensus view of the many who ratify it, not in the view of the few who draft it

No, it is the inverse. For the 14th Amendment to mean anything the original intent of the Framers must be consulted.

You were saying that the South was racist and was always racist before there was a federal government, as if the North was not racist.

The South was racist and was racist before the federal government, and so was the North. However, no one in the North was pretending that the 14th Amendment did not exist. The Framers created the 14th Amendment to address the savagery of the South (the Congressional Record lists the murders, arsons, rapes, etc. against the freedmen in the South), not the discrimination of the North (although it was used against the discrimination of the North as well as the Civil Rights Act of 1866).

Gee really? You mean that blacks were made citizens just like BAM!, and it seemed to "take" in the States that were 99.5% white, while in States that were 60% ignorant black freedman it didn't "take" so well. Who would have figured?

Yes, where the Northern troops were was the end of slavery and BAM! they were made citizens. The Southern states did not "take" to it so the Framers made them and the 14th Amendment was to civilize the states and give the freedmen their rights.

 

[hugh damright]

where the Northern troops were was the end of slavery and BAM! they were made citizens. The Southern states did not "take" to it so the Framers made them and the 14th Amendment was to civilize the states and give the freedmen their rights

It looks like you're saying that when the 13th freed the slaves it also made them citizens. Next you'll be telling me that blacks were citizens all along.

 

[El Tejon]

It looks like you're saying that when the 13th freed the slaves it also made them citizens. Next you'll be telling me that blacks were citizens all along.

So, you are agreeing with Taney and the idea that Blacks were NOT citizens?

 

[gc70]

Ummm, because the Black Codes were in the South. The no immigration policy was in response to the command of the Northwest Ordinance's prohibition on slavery.

Hardly. The Northwest Ordinance, Article 6 only addressed slaves: "There shall be neither slavery nor involuntary servitude in the said territory..."

The 1850 Census showed that Indiana had a "Slave Population" of 0 (zero) [page 2] and a "Free Colored Population" of 11,262 [page 27].

Article 13 of the Indiana Constitution of 1851 contained more than one wart on the mythology of "the Northman," not only barring all blacks from entering the state, but also authorizing money "for the colonization of such Negroes and Mulattoes, and their descendants, as may be in the State at the adoption of this Constitution, and may be willing to emigrate."

 

[hugh damright]

The Framers created the 14th Amendment to address the savagery of the South (the Congressional Record lists the murders, arsons, rapes, etc. against the freedmen in the South), not the discrimination of the North (although it was used against the discrimination of the North as well as the Civil Rights Act of 1866).

Of course the radical yankees blamed everything on the South and demonized the South at every opportunity to keep a good hate going to keep their party together. The record of the 39th Congress is not a balanced perspective.

The worst black codes were in the North. I don't see how anyone could believe that the 14th wasn't intended to address northern black codes.

So, you are agreeing with Taney and the idea that Blacks were NOT citizens?

Absolutely. I think the evidence is overwhelming, and that Taney and his decision deserve our greatest respect.