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THE BILL OF RIGHTS Amendments 1-10 of the Constitution
the people

Posted on 01/01/2004 3:49:02 AM PST by sopwith

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To: inquest; yall
And your point is? - Do you agree we have fundamental rights that cannot be violated by any level of government?
50 tpaine




Yes, I've always agreed with that.
What I don't agree with is the view that the federal government (at least pre-14th amendment) was given the power to keep states in line in that regard.
-inquest-





Why is this USSC protection of fundamental rights a 'problem'?
-- I always end up asking 'states rightists' this same question..

54 tpaine




I didn't say it was.

The power necessary to accomplish that, however, is a problem, because that power can be abused.
58




Why do you see the power given to the USSC to protect our fundamental rights as the 'problem', -- rather than it's abuse by politicians?

Why not fight for the restoration of honoring constitutional basics, --- by throwing the bums out.. -- Rather than fighting for mythical 'states rights'?
61 posted on 01/01/2004 3:20:48 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
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To: tpaine
Why do you see the power given to the USSC to protect our fundamental rights as the 'problem', -- rather than it's abuse by politicians?

It's abused by both judges and politicians. And I certainly favor throwing out the skanky political class, at all levels of government - as well as impeaching judges who abuse their authority.

62 posted on 01/01/2004 3:32:53 PM PST by inquest (The only problem with partisanship is that it leads to bipartisanship)
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To: inquest
Why do you see the power given to the USSC to protect our fundamental rights as the 'problem', -- rather than it's abuse by politicians?
tpaine





It's abused by both judges and politicians. And I certainly favor throwing out the skanky political class, at all levels of government - as well as impeaching judges who abuse their authority.
-62-

What I don't agree with is the view that the federal government (at least pre-14th amendment) was given the power to keep states in line in that regard.
51 inquest







You agree we have fundamental rights that cannot be violated by any level of government, -- yet you don't agree with the view that the USSC & Executive branches were given the power to keep the skanky political class in line?




63 posted on 01/01/2004 3:59:32 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
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To: tpaine
...yet you don't agree with the view that the USSC & Executive branches were given the power to keep the skanky political class in line?

They were given that power over the political class at their own level of government, to a far greater degree than they were given power over state governments.

64 posted on 01/01/2004 4:17:01 PM PST by inquest (The only problem with partisanship is that it leads to bipartisanship)
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To: inquest
There are infinite degrees of rationalization. The fact remains..

Our BOR's applies to the states, - and always has.
65 posted on 01/01/2004 4:35:01 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
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To: tpaine
You must admit that in the territory of CA, before statehood, US citizens had a RKBA's, -- yet you insist, because of a oversight, modern CA can now ban arms.

I don't know anything about the laws governing California before statehood. Why should I? Why do I have to know anything specific about California in order to understand the U.S. Constitution? There is obviously something screwed up, since you tell me California has passed laws that allow state officials to confiscate firearms. I don't know why you want to place the blame on the U.S. Supreme Court. The federal government is not imbued with infinite power to watch over all the actions of the states. It is possible for a state to do a wrong thing.

66 posted on 01/01/2004 5:23:10 PM PST by NutCrackerBoy
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To: mrsmith
It is the interpretation of those who wrote and ratified the Constitution and the Bill of Rights.

I posted this to show that Madison, largely being credited as the author of the USC, did in fact have it in mind to restrict all levels of govt via the BOR. I am well aware that they was much debate over both the USC and the BOR, but this does not take away from the fact that Madison recognized that having limited the powers of the federal govt did not secure the liberties of the people. You might call what he did politics or grand-standing, but it was quite clear what he had in mind. His verbage may not have been adopted, but the ideas he put forth were.

We may, however, be splitting hairs here. It seems inconceivable that one could at a higher level of govt, recognize that rights are divinely conferred and therefore "inalienable" only to allow signatories of that constitution that created that govt go on to take more liberal interpretations of the nature of those rights.

67 posted on 01/01/2004 5:49:34 PM PST by Nanodik (Libertarian, Ex-Canadian)
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To: NutCrackerBoy
NutCrackerBoy:

the state [does not have ] the power to give itself the power to [confiscate firearms]
It is not legitimate. It arrogated the power unto itself.





Yet you claim:
"2. The 2nd amendment does not limit state governments from trampling on RKBA."

Can you agree that 'we the people' can ratify a constitution that says:
'The 2nd amendment limits state governments from trampling on our RKBA?'

I submit we did so, back in 1791.

You must admit that in the territory of CA, before statehood, US citizens had a RKBA's, -- yet you insist, because of a oversight, modern CA can now ban arms..

This is an illogical position.
41 tpaine






I don't know anything about the laws governing California before statehood. Why should I?

Why do I have to know anything specific about California in order to understand the U.S. Constitution?

There is obviously something screwed up, since you tell me California has passed laws that allow state officials to confiscate firearms.

I don't know why you want to place the blame on the U.S. Supreme Court.

The federal government is not imbued with infinite power to watch over all the actions of the states. It is possible for a state to do a wrong thing.





It's been obvious to all on this thread that you know little about this issue..


CA's gun bans are the 'fault' of the CA legislature. - No one wants to place that type of blame on the U.S. Supreme Court.

The court is at fault for refusing to hear the case, and to declare such infringments of our RKBA's unconstitutional.

They have dishonored their sworn duty to uphold our constitution.

Have you ever taken such an oath?

68 posted on 01/01/2004 5:52:35 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
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To: tpaine
It's been obvious to all on this thread that you know little about this issue..

Speak for yourself, please.

69 posted on 01/01/2004 6:02:59 PM PST by inquest (The only problem with partisanship is that it leads to bipartisanship)
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To: Nanodik
Well, I don't think it's splitting hairs. Consider this amendment of his that was rejected: "no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases"

Now he, you, I and the Founders would all agree that "it is proper that every government should be disarmed of powers which trench upon those particular rights"!

But it was rejected.
It was deliberately not put in the Constitution.

The reason why is federalism and limiting the power of the central government. The power to enforce this upon the states would be a very great power indeed for the new central government to be given, and they would not do it.

But whatever the reason for rejecting it is really beside the point, as what matters is just that it was rejected and was not in the Constitution and we cannot pretend it was, or was meant to be, in it.

Aanytime it is clear what the Founders intended then any other reading of the Constitution, no matter how principled or well reasoned, is false.

70 posted on 01/01/2004 6:09:45 PM PST by mrsmith
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To: Nanodik
It seems inconceivable that one could at a higher level of govt, recognize that rights are divinely conferred and therefore "inalienable" only to allow signatories of that constitution that created that govt go on to take more liberal interpretations of the nature of those rights.

It is certainly frustrating when it happens. But the problem is in the word allow. Think of a loose federation of states. There is a deal made, a sharing of power and resources. The individual states do not care to give up any sovereignty, but they must in exchange for the protection of the union.

The federation is in no position to make such an extravagant demand as to have the ability to declare any state law unconstitutional.

71 posted on 01/01/2004 6:23:35 PM PST by NutCrackerBoy
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To: inquest
I was giving my opinion on the self-admitted "I don't know" bit at #66..
-- Sheesh.. -- You guys related?


72 posted on 01/01/2004 6:33:26 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
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To: sopwith
Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,

Now who would even think of doing something like that? hhhhhmmmmm?

73 posted on 01/01/2004 6:37:45 PM PST by patriot_wes
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To: snopercod
Snopercod you sly boy.

What George III lost I may regain.

Can't wait till Hatch-Kennedy passes.

Bill of Right in Action!!

74 posted on 01/01/2004 6:41:11 PM PST by Major_Risktaker
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To: snopercod
Amendment I - Freedom of speech violated by the Campaign Finance Reform Act of 2002. (You can still assemble to petition your government for a redress of this grievance if you have a permit.)

we'll find out on January 22-24 in Washington DC!

75 posted on 01/01/2004 6:41:35 PM PST by patriot_wes
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To: snopercod
You can probably argue that each and every law on the federal books is a violation, restriction or infringement on one or more of our rights. Very seldom do they pass a law giving us more freedom. Only more restrictions.
76 posted on 01/01/2004 6:48:14 PM PST by Jim Robinson (No man's life, liberty, or property are safe while the congress is in session. ~ Mark Twain)
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To: NutCrackerBoy; inquest; mrsmith; yall

--- It's been obvious that none of you 'states rights advocates' know much about this issue.. Read the link posted earlier.. Please..
Roland is an acknowledged expert on the subject:


Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Commentary by Jon Roland

This is the case that is taken as precedent for the doctrine that the provisions of the Bill of Rights are only restrictions on the powers of the national government, and not on the states.
Although this doctrine is considered settled law within the judicial establishment, it is challenged by many constitutional scholars.

There are several arguments for this doctrine. The first is that the provisions of the Bill of Rights are intrinsically only restrictions on the national government, and not on the states, if not in the words then in the debates that took place during the drafting and ratification of them.

This line of argument cites the language of the First Amendment that "Congress shall make no law..." and the fact that Madison had proposed more general language that would have applied to the states and that the First Congress, which drafted and proposed the Bill of Rights, based on a first draft provided by Madison, rejected Madison's language in favor of the language which restricts only "Congress".
The opponents of this argument point out that the remaining provisions of the Bill of Rights contain no such language, but are written with no qualification on them to restrict the restriction to either Congress or the states, and that by the rules of construction inherited from the English common law tradition, would therefore apply to all levels of government.
Critics also point out that since each of the provisions of the Bill of Rights were proposed as separate amendments, to be debated and ratified separately, and indeed, two of the proposed articles were not ratified at the time, and one of them, the second in the proposed twelve, was not ratified until after the passage of over 200 years, as the 27th Amendment in 1992.
Therefore, more restrictive language in what became the First Amendment could have no bearing on the coverage of the restrictions contained in the remaining amendments.


If we examine the debate in the First Congress more closely, however, it seems clear that the restriction to "Congress" in the article that was to become the First Amendment (when proposed, it was the third) was only intended as a prudential tactic to avoid opposition to its ratification from the many states that then had "establishments of religion", mainly in the form of taxes that were more or less fairly distributed to at least churches of most protestant denominations in the state.

Within a few years after adoption of the Bill of Rights on December 17, 1791, every state that had "established" religion had either adopted their own constitutional amendments disestablishing religion, or simply discontinued the practice.

But the language of the First Amendment remained.


This raises a debate concerning the nature of the Bill of Rights. Are they positive law, restrictions on the powers of government, either just federal, or on both federal and state, which would not exist if they were repealed; or are they recognitions of fundamental rights that pre-exist government at all levels.
The semantic difference is critical, because of the language of Art. III, Sec. 2, that "The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, ..."
If the provisions of the Bill of Rights are only positive law, then their repeal would remove them from "arising under this Constitution" and therefrom the jurisdiction of the federal courts, and the restriction of the First to "Congress" would deprive the federal courts of jurisdiction over violations by Congress and not by the states.
If they are fundamental and pre-existing, then they would fall within the Equity jurisdiction of the federal courts, and the federal courts would have at least appellate jurisdiction over state cases in which the issue is a violation of a right of an person by a state.


The theory of government under which the Constitution was developed is the theory of natural law. This theory supports the doctrine that certain rights are fundamental and pre-exist government, either natural rights arising from the primal "state of nature", or civil rights arising from the "social contract", but before the society thus created established a government for itself.
That is not to say that the rights recognized in the Bill of Rights are all natural rights, but they are instrumental rights to natural rights, which arise out of the social contract and the common law tradition of government leading up to the Constitution, nonconflicting parts of which were incorporated into it, which we classify as "civil".
But one of the tenets of this theory is that all natural and civil rights are necessarily also constitutional rights, whether explicitly recognized or not. Of course, constitutional rights can also include rights, such as the right of citizenship, that only make sense in the context of a constitutional order, and that we therefore say arise from a constitution proper, and not from nature or the social contract that precede it.


The main implication of this doctrine is that the federal courts have either original or appellate jurisdiction over cases involving violations of constitutional rights by an official or agent of government at any level, regardless of whether the rights are explicitly protected.



77 posted on 01/01/2004 6:58:21 PM PST by tpaine (I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
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To: NutCrackerBoy
The federation is in no position to make such an extravagant demand as to have the ability to declare any state law unconstitutional.

It most certainly does. Think of one state negotiating a treaty with France. How about Virginia placing a tariff on goods from Maryland? There were certain areas that the federal government was empowered above the states, albeit few.

78 posted on 01/01/2004 8:28:08 PM PST by Nanodik (Libertarian, Ex-Canadian)
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To: mrsmith
Madison's first draft was rejected but I still do not see that the words that were put in its place were any less restrictive of all levels of govt. Patrick Henry's comment seem to imply that he was not against a BOR to limit the states but that he was worried that the feds would in fact be excluded. Jefferson argued with Madison that the BOR was necessary so as to contain all levels of govt. I don't really see any proof here, other than Madison'f first draft was rejected that the BOR was to tie only the fed's hands.

That is not to say that you might be right. Given the number of people who had to sign on to the BOR, we may never know what exactly each interpreted to be the meaning. Were this to be brought to a court of law however, one might argue that by agreeing to the BOR that the states recognized particular individual rights, whether or not they were codified in that state's constitution.

79 posted on 01/01/2004 8:45:29 PM PST by Nanodik (Libertarian, Ex-Canadian)
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To: Major_Risktaker
Oh, good one. I had forgotten about "hate crimes" creating a double jeapordy. Thanks (I think).
If a homosexual is assaulted, a hate-crime will have been committed in addition to the crime of assault. But if a heterosexual is assaulted, it will merely be an act of assault. Similarly, if a black is assaulted, robbed or murdered, a hate-crime charge will be added if the assailant is white. Rape itself can become a hate crime.

80 posted on 01/02/2004 4:13:37 AM PST by snopercod (Wishing y'all a prosperous, happy, and FREE new year!)
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