CalRepublican wrote:
The Bill of Rights was not originally intended to be applied to the states. The protections of the BOR have been applied to the states only by virtue of incorporation into the 14th Amendment.
Your faction, and a bunch of southern rebels, simply made that idea up, in order to justify ignoring our BOR's prior to the Civil War.
(The Supremacy Clause has nothing to do with this--if the BOR was written only to apply to the FedGov then it doesn't matter if it is the supreme law of the land or not.)
Circular argument. Our BOR's was written to apply to ALL levels, - fed/state/local, -- of government. ALL officials were sworn by oath to support the supremacy of our US Constitution.
In Barron v. Baltimore, decided in 1833, Chief Justice Marshall held that the takings clause of the Fifth Amendment did not apply to state and local governments.
So what? Marshals opinion did not alter the Constitutions/BOR's supremacy as the Law of the Land.
It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.
Today, the State of CA claims it can prohibit 'assault weapons'. Do you agree?
This is important, because it is through this incorporation idea that we have gotten the notion that school prayer is unconsitutional. A strong argument can be made that, even after the 14th Amendment, the Constitution should not be interepreted to incorporate the 1st Amendment and apply it to the states.
Yep, and using the same arguments, "the Constitution should not be interpreted to incorporate the 2nd Amendment and apply it to the states."
-- Do you approve, 'CalRepublican'?
Your faction, and a bunch of southern rebels, simply made that idea up, in order to justify ignoring our BOR's prior to the Civil War.
Are you aware of what the Constitution looked like before the Civil War? The south did not need to ignore the BOR rights to have slaves. Nothing in the BOR or Constitution prohibited slavery. If it had, there would not have been a Union in the first place.
Circular argument. Our BOR's was written to apply to ALL levels, - fed/state/local, -- of government. ALL officials were sworn by oath to support the supremacy of our US Constitution.
No, it's not circular, your argument is. The BOR as originally drafted included protections against the states, which were thrown out in favor of what we got.
So what? Marshals opinion did not alter the Constitutions/BOR's supremacy as the Law of the Land.
Do you have any idea what the Supremacy Clause says/means? It does not mean that every part of the Constitution applies to the states. It means that if there is a conflict, federal law is supreme. Because the BOR was not meant to apply to the states, there would not have been any conflict. Read part of Barron:
"The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and 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.
If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective [p*248] governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.
The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation.
The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on [p*249] the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States.
It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the General Government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the General Government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found generally to restrain State legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words.
If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason.
Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A [p*250] convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the [p*251] Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed.
This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this Court that there is no repugnancy between the several acts of the General Assembly of Maryland given in evidence by the defendants at the trial of this cause in the court of that State and the Constitution of the United States; whereupon it is ordered and adjudged by this court that this writ of error be, and the same is hereby, dismissed for the want of jurisdiction."
This was the law of the land until the 14th Amendment. The rationale was clear--the people had already been living with their own state governments. They weren't looking to revamp those, they were hoping to form a federal government that would form a "more perfect Union" amongst the states. Because they were creating a new federal government that was the government from which they were also seeking protections.
To believe otherwise would require you to believe that people in Virginia, for example, were looking forward to the constitutional convention as a way to seize additional rights for themselves. Which doesn't make sense, because they could just have amended their own constitution if that's what they wanted.
It was only years after passage of the 14th Amendment that parts of the Bill of Rights began to be applied to the states. Even today, parts of the BOR do not apply to the states, i.e., the right to be charged by a grand jury. Today, you can be charged by prosecutor's information in some states.
Today, the State of CA claims it can prohibit 'assault weapons'. Do you agree?
Provided there is no contrary provision in the California constitution, ABSOLUTELY. My turn for a question: The state of Texas wants to prohibit abortion. Do you agree it can, or does the BOR prohibit that?
Yep, and using the same arguments, "the Constitution should not be interpreted to incorporate the 2nd Amendment and apply it to the states."
-- Do you approve, 'CalRepublican'?
I do not "approve" of gun legislation. Therefore I do not vote for candidates that support it. That has nothing to do with the Constitutionality of such legislation. If you want protection from your state, look to your state legislature and your state constitution, not to the federal government.
I believe in a federal form of government wherein I have different rights under the US Const. and the Ca. Const. The ability of states to differentiate between themselves is what makes this country great. That is Federalism. It is a conservative ideal.