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The Federalism Debate [And 'States Rights']
Cato Institue ^ | 10/28/04 | Rodger Pilon

Posted on 10/28/2004 6:03:10 PM PDT by tpaine

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To: tacticalogic

Thanks.


151 posted on 10/29/2004 6:10:49 PM PDT by fortheDeclaration
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To: tpaine

Your link did not work


152 posted on 10/29/2004 6:11:20 PM PDT by fortheDeclaration
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To: tacticalogic; fortheDeclaration
"I don't quite understand your reasoning there. The whole point of the process of amendment is adding to or removing parts of the supreme law. It was necessary to pass an amendment because enacting prohibion would have been unconstitutional without it."

And my point was that the amendment itself was unconstitutional, regardless of what the majority of the states or people wanted. It infringed upon the 'pursuit of happiness' (property rights). As i stated a bit ago,:

"The prohibition of the sale of intoxicating liquors in the United States was repugnant to the supreme law which protects private property and the disposal and sale thereof."

I will always be of the opinion that even if everyone in the country voted that it is illegal to sell cream soda, it will still be my right to do so.

As far as your point in removing parts of the supreme law, that's a 'no-no.' We can add to the constitution as long as what is added is in pursuance to the rest of it. But we cannot remove roadblocks to insure pursuance.

153 posted on 10/29/2004 6:13:52 PM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: Eastbound

Okay. Do you have any historical background to support that interpretation?


154 posted on 10/29/2004 6:21:08 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: fortheDeclaration

Weird.

It works from my link page, but not here.
You could probably get the article through an FR search. It was posted in 2001.


THE NATIONAL PROHIBITION LAW HEARINGS, 1926, ( those interested in the WOD should check it out) [Free Republic]


155 posted on 10/29/2004 6:21:16 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
But it is said, that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW by the very meaning of the term includes supremacy. It is a rule which those to whom it is prescribed are bound to observe.

But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government. It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed. - Alexander Hamilton, Federalist, no. 33

156 posted on 10/29/2004 6:23:57 PM PDT by Tailgunner Joe
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To: Tailgunner Joe
And your source as to the intent of Article IV?
141 Tailgunner Joe

______________________________________


Words have meaning.

The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".

This is a fact, not my interpretation. 146 tpaine

______________________________________


Tailgunner Joe rebuts:

"--- But it is said, that the laws of the Union are to be the supreme law of the land.
But what inference can be drawn from this or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW by the very meaning of the term includes supremacy. It is a rule which those to whom it is prescribed are bound to observe.

But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land.

These will be merely acts of usurpation and will deserve to be treated as such.
Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a Foederal Government.

It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution;
which I mention merely as an instance of caution in the Convention; since that limitation would have been to be understood though it had not been expressed."
- Alexander Hamilton, Federalist, no. 33


______________________________________


What have you proved by quoting Hamilton, joe?

If anyone here can wade through his tortured syntax, they might agree with me that he supports my position more than he supports yours.
157 posted on 10/29/2004 6:43:49 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Eastbound
I agree that the amendment process can be abused such as making direct taxation and direct election of Senators part of the Constitution.

It was hoped that the process would be so difficult that bad amendments would be avoided.

158 posted on 10/29/2004 6:54:00 PM PDT by fortheDeclaration
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To: fortheDeclaration

The difficulty lies in determining who would have the authority to declare a constitutional amendment unconstitutional, and how you would prevent abuse of that authority.


159 posted on 10/29/2004 7:01:16 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tacticalogic
"Okay. Do you have any historical background to support that interpretation?"

In that you weren't specific, I'll be general. Article VI, para 2, as we all are aware of by now, is the supreme law of the land. At least it delineates how the supreme law should be applied.

In that we the people wrote the constitution to provide a mechanism to secure our rights, it should be self-evident that our rights are the supreme law. Why should be write a constitution that removed our rights? Well, we didn't.

We just got through fighting the king's men to proclaim them.

So life, liberty and the pursuit of happiness was the promise of the American Revolution. The right to self-determination and personal sovereignty. Every man a king under his own fig tree. (generically speaking, these days.)

Our charter was worded to express that ideal. In that individuals sometimes encroach on another's rights or space, we created a legal mechanism to punish each other when we went astray.

In the simple wording and logic of Article VI, para 2, (the supremacy clause) it is shown that neither the state nor federal government can infringe upon or impair that ideal, as Congress can make no law which is not in pursuance to that ideal. Nor can the state.

Otherwise there would have been no need for the American Revolution.

That is about as historical as I'm going to get right now.

160 posted on 10/29/2004 7:02:15 PM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: Eastbound

Do you consider local laws establishing "dry" counties to be unconstitutional, or municipal ordinances banning the sale of fireworks? I think the part I'm questioning is the assertion that the right to the "pursuit of happiness" encompasses an unrestricted right to the sale and disposal of personal property.


161 posted on 10/29/2004 7:15:26 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: fortheDeclaration; All
"It was hoped that the process would be so difficult that bad amendments would be avoided."

Agreed. Well, ftD, we are both in the right place here, as restoration of our government is the primary concern of JimRob and most of us here on FR. At the present moment we have the election and terror war on the front burner and it's getting more difficult to drain the swamp.

But it is good to keep refreshing ourselves from time to time.

And in that vein, I would like to express my appreciation to everyone on this thread for their considered responses and input. It has been a day worth living for a change. I've gained much. Thank you all.

162 posted on 10/29/2004 7:21:32 PM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: Eastbound; Everybody; robertpaulsen; Bozo
Eastbound wrote:

That is about as historical as I'm going to get right now

Your logic trumps even your grasp of our history. Well said.

Let the robertpaulsen type bozos of FR read your words and weep for their ignorance.

163 posted on 10/29/2004 7:23:39 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine; Eastbound; fortheDeclaration
As Marshall explained, because state governments were already in place in the 1780's, the dominant purpose of the Constitution was to create, yet limit, a new central government. "limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument"-that is, the federal government. Though he did not cite it by name, Marshall seems to have had in mind here the sweeping dictum of

Hamilton's Federalist No. 83: "The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer."
Close inspection of the original Constitution confirms the soundness of the Hamilton-Marshall rule of construction. In Article I, Section 9, for example, we find a purely general prohibition akin to the takings clause in its language and logic: "No Bill of Attainder or ex post facto Law shall be passed." Yet as Marshall forcefully noted, this general prohibition limits only the federal government; hence the framers' inclusion of a separate clause explicitly limiting states, in Article I, Section 10: "No State shall ... pass any Bill of Attainder or ex post facto Law." The absence of any similarly explicit language limiting states in the takings clause cut strongly against Barron's claim. Had the framers of the clause meant to limit states, wrote Marshall, "they would have declared this purpose in plain and intelligible language," like the "No State shall" phrasing of Article I, Section 10.

But does not the language of the First Amendment cut exactly the other way, suggesting that where the Bill of Rights aimed at limiting only the federal government, it used an explicit word like "Congress" to signal that intent? Once again, Marshall offered a careful parsing of Article I, Section 9 to drive home his point: "Some of [the clauses in this section] use language applicable only to congress: others are expressed in general terms." If the word "Congress" in the First Amendment could justify applying the takings clause and other general wording in the Bill of Rights to the states, then the same should hold true for Article I, Section 9: the words "the United States" in the Section 9 clause-"No Title of Nobility shall be granted by the United States"-should logically imply that the general wording of the attainder and ex post facto clause of Section 9 applied against the states. Yet as we have seen, the Constitution plainly suggests otherwise. Marshall saw the language of Section 9 as especially relevant because it was "in the nature of a bill of rights," as various Federalists had pointed out during the ratification period to counter Anti-Federalist concerns about the apparent absence of such a bill in the original Constitution.

The legislative history of the Bill of Rights confirms that its framers and ratifiers did so rely. Various state conventions endorsed amendments limiting the new central government, some phrased in general language, others using words explicitly targeted at the central government-"Congress," the "United States," and so on. Yet no one ever suggested that the general language, simply because of its juxtaposition with other clauses worded differently, would limit state governments as well. When Madison distilled these endorsements into his own list of proposed limitations, he suggested that most of these limitations be inserted in Article I, Section 9. Following the rule of construction implicit in that Article, he used general language and explicit references to Congress indiscriminately. The proposed location of these clauses made it clear that, however worded, they applied only against the federal government.

In state convention after state convention in 1787- 88, Anti-Federalists voiced loud concerns about a new, distant, aristocratic, central government that was being called into existence. [40] Many ultimately voted for the Constitution only because Federalists like Madison promised to consider a Bill of Rights soon after ratification. Madison of course kept his word, and knew that if he had not, states' rightists might have called a second constitutional convention to repudiate the basic structure of the Constitution he had labored so hard to build. In short, without the good will of many moderate Anti-Federalists, prospects for the new Constitution looked bleak in 1787-88; and a Bill of Rights was the explicit price of that good will. But the Bill of Rights that Anti-Federalists sought was a Bill to limit the federal government-not just for the sake of individual liberty, but also to serve the cause of states' rights. Madison and his fellow Federalists could hardly have placated their critics, or won over their skeptics, by sneaking massive new restrictions on states into apparently innocuous general language. Nor would Anti-Federalists in Congress or in states have knowingly allowed such a trojan horse though the gates. Madison did openly advocate a small number of additional restrictions on states-clearly labeled as such in a package wrapped in the words "No State shall"-but even that modest proposal was too much for a Senate jealously guarding states' rights. - LINK

The Constitution is the Supreme Law of the Land, but the Constitution clearly delinates between the powers of the state and federal governments. The Bill of Rights did not apply to the states just because it was part of the Constitution. State laws cannot violate restrictions that were placed only on the federal government.
164 posted on 10/29/2004 7:33:17 PM PDT by Tailgunner Joe
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To: tacticalogic

Those are good questions, tacticalogic. I'm bookmarking this thread for later. I just feel the need to spend some time on the other threads to bash some demodummy heads for a while. Thanks for your remarks and questions. Later. :>


165 posted on 10/29/2004 7:37:09 PM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: tpaine

Thanks for posting this today, tpaine. Later.


166 posted on 10/29/2004 7:38:59 PM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: Eastbound

Have fun. We'll see you around, I'm sure. Leave some for the rest of us.


167 posted on 10/29/2004 7:48:16 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Tailgunner Joe

And your source as to the intent of Article IV?
141 Tailgunner Joe

______________________________________


Words have meaning.
The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".
This is a fact, not my interpretation. 146 tpaine

______________________________________


What have you proved by quoting Hamilton, joe?
If anyone here can wade through his tortured syntax, they might agree with me that he supports my position more than he supports yours.
157 tpaine


______________________________________


Joe replies:

--- The Constitution is the Supreme Law of the Land, but the Constitution clearly delinates between the powers of the state and federal governments.

The Bill of Rights did not apply to the states just because it was part of the Constitution.

State laws cannot violate restrictions that were placed only on the federal government.
164 Joe

______________________________________


Joe, nothing you have posted rebuts the plain clear words of Article VI of our Constitution.

The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary.

Give it up.


168 posted on 10/29/2004 7:56:44 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Tailgunner Joe; Eastbound; fortheDeclaration
Somehow I left this section out of my last post:
Unlike state ratifying conventions, Madison believed that additional restrictions in favor of liberty should also be placed on state governments and said so on the floor of the House; but even more important for our purposes, he proposed a constitutional amendment that used explicit language to communicate this idea-the very same explicit language that John Marshall seemed to be asking for in Barron: "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." Moments earlier, Madison had proposed that the following general language be inserted into Section 9: " N or shall the full and equal rights of conscience be in any manner, or on any pretext, infringed ... and the freedom of the press ... shall be inviolable." Had this general wording, taken alone or in juxtaposition with references to Congress in nearby clauses, been understood to apply to states, Madison's "No state shall" proposal would have been horribly repetitive, eligible for inclusion in the department of redundancy department. What's more, in limiting its list of rights that "No State shall" abridge to press, conscience, and juries, Madison's wording clearly suggested under the principle of expressio unius that states could do other things prohibited by the general language of his proposed Section 9 insert. That general language, for example, prohibited both establishment of religion and infringement of conscience. Madison's "No State shall" list included the latter but pointedly omitted the former, thus implying that states would continue to be free to establish churches. But if so, we are again driven to the obvious rule of construction that the general language about establishment-like all general language-applied only to the federal government.

Still further corroboration comes from Madison's speeches on the House floor. Whereas he candidly admitted that his proto-Tenth Amendment "may be considered as superfluous" and "unnecessary," he described his "No State shall" proposal, in very different language: "[T]his [is] the most valuable amendment in the whole list" -valuable because it added something obviously not implicit elsewhere in general language. Yet he also noted that even this most valuable amendment would bind states only to "those particular rights" listed in the "No State shall" clause, once again making clear that merely general language would not limit states.


169 posted on 10/29/2004 7:59:35 PM PDT by Tailgunner Joe
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To: Tailgunner Joe
Did not most states have a bill of rights in their own constitution?

Did not all terrorites coming into the Union have to have a constitution consistent with the U.S. Constitution?

In other words, no new states were ever admitted that rejected the Bill of Rights.

170 posted on 10/29/2004 8:02:52 PM PDT by fortheDeclaration
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To: tpaine

Nothing you've posted rebuts the fact that the Founders did not intend for the Bill of Rights to apply to the states.


171 posted on 10/29/2004 8:04:38 PM PDT by Tailgunner Joe
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To: fortheDeclaration
"Grand Jury" Clause
Fifth Amendment's "Grand Jury" clause states: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." The Supreme Court held this clause to be inapplicable to the states and therefore unincorporated. (Hurtado v. California, 110 U.S. 516 (1884)).

Is the 7th Amendment Applicable to the State Courts? No. The Supreme Court declared that the right to a jury trial in a civil suit is not a fundamental aspect of due process or the liberty protected by the Due Process Clause of the Fourteenth Amendment and is therefore not applicable to state court proceedings. (Minneapolis and St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).

172 posted on 10/29/2004 8:26:32 PM PDT by Tailgunner Joe
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To: Tailgunner Joe
Joe, nothing you have posted rebuts the plain clear words of Article VI of our Constitution.

The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary.
Give it up.

Nothing you've posted rebuts the fact that the Founders did not intend for the Bill of Rights to apply to the states.

The clear words of our Constitution, ratified by the Founders, says that our Constitution, and its Amendments, is the "Law of the Land", -- the "Laws of any State to the Contrary.

You're beating your own dead horse joe. Have pity on yourself.

173 posted on 10/29/2004 8:28:06 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Tailgunner Joe; tpaine
Nothing you've posted rebuts the fact that the Founders did not intend for the Bill of Rights to apply to the states.

The Bill of Rights were already accepted in the States, that is why the Anti-Federalists wanted the Federal gov't to have them stated in the Federal Constitution.

Even the CSA copied the Bill of Rights into their Constitution, not as Amendments, but as part of the body of the document.

Thus, the fact is no state can go against the Bill of Rights.

it deals with individual liberty, and which by its nature limits gov't.

If the Federal gov't was going to be bound by the states to limit itself to protect individual liberty, you do not think the Federal gov't was going to demand that the states abide by the same limits?

174 posted on 10/29/2004 8:29:52 PM PDT by fortheDeclaration
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To: tpaine
I support my arguments with legal and historical evidence. You only make appeals to your own authority. (which is hardly eminent.)

Good night!

175 posted on 10/29/2004 8:32:05 PM PDT by Tailgunner Joe
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To: fortheDeclaration; Tailgunner Joe
fortheDeclaration wrote:

Thus, the fact is no state can go against the Bill of Rights. it deals with individual liberty, and which by its nature limits gov't.

Which leads to the same question that paulsen couldn't answer earlier..

Joe, why do you want States to have the power to infringe upon our individual liberties? -- Why should CA have the power to prohibit me from owning an 'assault weapon'? -- Can you answer joe?

176 posted on 10/29/2004 8:42:32 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Tailgunner Joe
Is the 7th Amendment Applicable to the State Courts? No. The Supreme Court declared that the right to a jury trial in a civil suit is not a fundamental aspect of due process or the liberty protected by the Due Process Clause of the Fourteenth Amendment and is therefore not applicable to state court proceedings. (Minneapolis and St. Louis R. Co. v. Bombolis, 241 U.S. 211 (1916)).

Gee, a court ruling, now that settles everything.

I wonder where that puts the Dred Scott decision.

How about the recent ruling upholding the McCain-Feingold bill against free speech?

The rulings upholding bans on guns?

177 posted on 10/29/2004 8:43:20 PM PDT by fortheDeclaration
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To: Tailgunner Joe

My authority is our Constitution.

And joe, seeing you must run, give some serious thought to answering my last question tomorrow. -- I'll hold my breath waiting.


178 posted on 10/29/2004 8:46:59 PM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: Tailgunner Joe; tpaine
http://encarta.msn.com/encyclopedia_761553383_2____8/Bill_of_Rights.html#s8

In June 1776 Virginia’s state constitutional convention adopted the Virginia Declaration of Rights. The declaration created basic civil liberties, including safeguards for accused persons: the right to call witnesses, the right against self-incrimination, a ban on excessive bails and fines, and due process of law. The declaration also banned widespread government searches, discouraged the creation of standing armies, and called for freedom of the press. James Madison, a delegate to the convention, successfully argued for the inclusion of a guarantee of freedom of religion.

Many colonies followed Virginia’s lead when they established new state governments. Traces of the Virginia bill soon appeared in the Pennsylvania, Maryland, and Delaware declarations. By 1781 Massachusetts, North Carolina, New Hampshire, and the provisional government of Vermont had all prefaced their constitutions with some type of bill of rights. Most other states, including New York, New Jersey, South Carolina, and Georgia, protected civil liberties through a bill of rights in their new constitutions or through new supplementary laws. Only Rhode Island and Connecticut continued to rely on common law and existing legal provisions to guarantee personal rights.

The idea of a bill of rights as a basic protection of civil liberties thus dates to the American Revolution. From 1776 to 1781, the eight bills of rights adopted by the states contained a total of 90 different provisions. Some were heavily tailored to local circumstances. Most shared provisions for jury trial, freedom of speech, freedom of the press, the right to bear arms (weapons), the right to petition the government for change, and a range of other freedoms rooted in the Magna Carta and the English common law. Through their assertions of broad rights to freedom of speech and religion, however, these documents broke with English tradition. In addition, the American bills of rights went far beyond the English precedents by ordering restraints on the powers of government that had been unthinkable before 1776.

Thus, a Federal Bill of Right did only limit the Federal gov't, but only because the State already had protections for those freedoms.

New States entering the Union had to have a state Constitution consistent with the Constitution of the United States.

179 posted on 10/29/2004 9:21:14 PM PDT by fortheDeclaration
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To: fortheDeclaration
New States entering the Union had to have a state Constitution consistent with the Constitution of the United States.

Apparently California managed to sneak in with a Constitution sans any RKBA. I still cannot fathom how Congress voted to admit them to the Union under those circumstances, but apparently they did.

180 posted on 10/29/2004 9:26:48 PM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: RayStacy
You're right... You are no connoisseur of law. It is NOT a prohibition of what we are talking about -- civil liberties and such. It does not, for example, prevent a state from establishing a church or engagin in censorship. Sorry.

Sorry you've lost the concept of "civil debate"..
I probably wouldn't have bothered to respond if you had left out the snide remark..

Art. VI, by extension, DOES involve civil liberties..
As per your earlier arguments, you are discussing the Original Consitution, w/o the Bill of Rights..

Under such construction, Any Law passed by Congress, "pursuant to the constitution" is the "Supreme Law of the Land" and, "The Judges in every State shall be bound thereby"..

Therefore, the Congress could pass federal law on any and all Civil Rights and the states would be bound to obey that law..
You are correct that, w/o the Bill of Rights, there was no prohibition against states doing what they wished concerning the creation of a state church, or engaging in censorship, either of the individual, or the press...
However, there was also no prohibition against the congress passing such laws as well, pro or con those issues.. and the states then being legally bound to respect those laws...

Article VI is therefore a prohibition on the states.. a very broad prohibition stating in effect, "we're the new guys in town, and you're going to have to do as we say."..

181 posted on 10/29/2004 11:08:22 PM PDT by Drammach (Freedom; not just a job, it's an adventure..)
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To: fortheDeclaration
The failure is in defining the 2nd Amendment and enforcing that right as an individual right that cannot be infringed upon by any state.

While I agree with your sentiment, I must disagree on grounds of interpretation..

The 2nd amendment only prohibits infringement of the individual's RKBA, it does not grant that Right to the People.
The principle that "the people" have an "inalienable" right to keep and bear arms is an implicite admission in the 2nd amendment..

Also, ONE REASON stated is that the people, individually or as a group, (militia) be able to defend themselves, the state or the nation in times of emergency..
( I classify an "emergency" as someone attempting to assault or murder me, my family, freinds, or innocent bystanders, especially if a law enforcement officer is not present to resolve the situation.. if an LEO is present, I can still assist..)

I don't have any problem with "defining" RKBA as an individual right, I believe that it is..
My problem is using the 2nd amendment to define that right..
The 2nd is just about prohibiting interference with that right.. not the right itself..

182 posted on 10/30/2004 12:05:57 AM PDT by Drammach (Freedom; not just a job, it's an adventure..)
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To: Drammach
Thanks for the post.

The context of that post was, why wasn't the Federal gov't making all gun control laws illegal?

We do not allow slavery anymore, so why not gun control laws.

They have not done so because they do not see the Bill of Rights in terms of natural law anymore.

Thus, these rights are now defined in a positivist way.

Had not a philosophical change occurred in the beginning of the 20th century, it is possible that the Federal gov't would have ensured that the 2nd amendment was protected in all 50 states.

State rights (in this case 'local rights') are now being used to deprive individuals of that right in DC and the Congress is trying to overturn that ban based on the Bill of Rights seen as a natural law.

You will see Conservatives join with liberals to resist overthrowing this ban because of what they call Federal ínterference'.

This view is based on a misquided notion that a State has a right, rather then the natural law view that the State only exists to protect the rights of individuals.

183 posted on 10/30/2004 12:29:39 AM PDT by fortheDeclaration
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To: fortheDeclaration
Hopefully, we are seeing another "philosophical change", this time among the people..

The reversal of gun prohibitions among the individual states is a good sign.. and an indication that many individuals have come to the conclusion that gun control is "just wrong"..

While I tend to agree with the argument that the 2nd is "all encompassing", according to it's literal interpretation, I understand there may be historical context that might possibly interpreted to limit it's context to one group or another.
The problem is, it is not limited to either one..

While some argue that "state's rights" provide immunity from the prohibition to infringe on RKBA, there seems to be no enforcement of that prohibition on the federal government as well..

Just my personal opinion, I'm no historical scholar, just a "voluntary student", so to speak..
States no more have "rights" than does the Federal Gov..
They both have "powers", granted to them by the people..
And the people can take those powers away just as quickly as they grant them..

184 posted on 10/30/2004 12:57:13 AM PDT by Drammach (Freedom; not just a job, it's an adventure..)
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To: Drammach
While some argue that "state's rights" provide immunity from the prohibition to infringe on RKBA, there seems to be no enforcement of that prohibition on the federal government as well..

Actually there is, the combined efforts of the people through the states.

That is the problem that the homosexual are having, they are being rejected in almost every state.

Hence, they have to find activist judges to bypass the rejection of their agenda on the state level.

Moreover, the rejection of that agenda on the state level translates into the Federal gov't hesitating to push it.

Gun control laws have become so 'hot'now that neither Party will touch them.

Kerry has to go hunting to show he is not a gun grabber.

This is due to the combined power of the people through the states.

We can also put in pro-gunners who will aggressivly attack federal gun laws and get rid of them as we did recently.

Just my personal opinion, I'm no historical scholar, just a "voluntary student", so to speak.. States no more have "rights" than does the Federal Gov.. They both have "powers", granted to them by the people.. And the people can take those powers away just as quickly as they grant them..

Exactly right, there is no thing as 'states rights' only state powers and responsibilities.

All gov't is dangerous and must be held in check by the people, at all levels.

185 posted on 10/30/2004 1:52:01 AM PDT by fortheDeclaration
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To: Drammach
You are correct that, w/o the Bill of Rights, there was no prohibition against states doing what they wished concerning the creation of a state church, or engaging in censorship, either of the individual, or the press... However, there was also no prohibition against the congress passing such laws as well, pro or con those issues.. and the states then being legally bound to respect those laws...

I think the absence of any enumerated power giving Congress authority over those constitutes a prohibition. The BOR just stated explicitly what was already there implicitly.

186 posted on 10/30/2004 6:13:39 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Drammach

This is not true. Because of the ENUMERATION, the federal govenment was not empowered to pass laws concerning civil liberties. This is conservative constitutional lesson 101. The enumeration is EVERYTHING!!!!! W/out the enumeration congress COULD do anything it wanted, could indeed pass legislation on any subject at anytime, whatsoever period. Thanks to the enumeration, it could not do it. ART VI merely says that if the FED g. passes a law WHICH IT IS LEGALLY ENTITLED TO PASS, taxing for the military, say, then the states must follow, as the CONS is the supreme law of the land. ART 6 DOES NOT SAY, that the FED GOV may pass any law that it pleases, laws concerning, say, civil liberties, or gun control. TODAY, thanks to citizen ignorance, Congress can of course pass any legislation at any time on any subject that it sees fit. And that is very sad. By the way, I wanted to be civil, but I detected sarcasm in your response, so I responded in kind. I apologize if you had not intended sarcasm.


187 posted on 10/30/2004 6:51:48 AM PDT by RayStacy
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To: tpaine
"The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding"."

"This is a fact, not my interpretation."

A fact? You wouldn't know a fact if it bit you in the a$$ -- that was NOT what the framers wrote. The only way you can make your point is to distort the truth.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.

Any Constitutional federal law is the supreme law, and supercedes any state law.

The Constitution itself is not a "Law" -- it provides a framework for laws.

188 posted on 10/30/2004 7:00:45 AM PDT by robertpaulsen
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To: robertpaulsen
A fact? You wouldn't know a fact if it bit you in the a$$ -- that was NOT what the framers wrote. The only way you can make your point is to distort the truth.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.

Any Constitutional federal law is the supreme law, and supercedes any state law.

The Constitution itself is not a "Law" -- it provides a framework for laws.

I don't think so. That comma after Constitution is significant. It means that the Constitution and the "the laws of the United States which shall be made in pursuance thereof" are separate entities.

The Constitution ... shall be the supreme law of the land

and

the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land

The Constitution cannot be the supreme law of the land, and not be a law.

189 posted on 10/30/2004 7:19:06 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: tpaine; Eastbound
"Your logic trumps even your grasp of our history. Well said."

Logic??? Drooling, mindless babbling is more like it.

"The Constitution is unconstitutional"! What is that? Maybe you understand that pap -- I don't.

An amendment is part of the Constitution. It is the Constitution.

190 posted on 10/30/2004 7:26:25 AM PDT by robertpaulsen
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To: Drammach
"there seems to be no enforcement of that prohibition on the federal government as well.."

The federal government has never been challenged on second amendment grounds -- hence, no enforcement.

The 1994 Assault Weapons Ban, for example, was challenged in federal court in 1995 by Navegar Inc. (TEC-DC9 and TEC-22) and Penn Arms Inc. (Strike 12) as a violation of Congress' Commerce Clause authority, not as a violation of the second amendment.

191 posted on 10/30/2004 7:36:25 AM PDT by robertpaulsen
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To: robertpaulsen
The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".

This is a fact, not my interpretation.

--- that was NOT what the framers wrote.
"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.

I got it right the first time, as anyone who can read & reason would acknowledge. You are being pedantic & supercilious, as usual.

Any Constitutional federal law is the supreme law, and supercedes any state law.

Good of you to finally admit it.

The Constitution itself is not a "Law" -- it provides a framework for laws.

There you go again, directly contradicting the clear words of Article VI.

"This Constitution, ... shall be the supreme Law of the Land ..."

192 posted on 10/30/2004 7:42:24 AM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: robertpaulsen; Eastbound; yall
Eastbound wrote:

Article VI, para 2, as we all are aware of by now, is the supreme law of the land. At least it delineates how the supreme law should be applied.

In that we the people wrote the constitution to provide a mechanism to secure our rights, it should be self-evident that our rights are the supreme law. Why should be write a constitution that removed our rights?

Well, we didn't.
We just got through fighting the king's men to proclaim them.

So life, liberty and the pursuit of happiness was the promise of the American Revolution. The right to self-determination and personal sovereignty. Every man a king under his own fig tree. (generically speaking, these days.)
Our charter was worded to express that ideal. In that individuals sometimes encroach on another's rights or space, we created a legal mechanism to punish each other when we went astray.

In the simple wording and logic of Article VI, para 2, (the supremacy clause) it is shown that neither the state nor federal government can infringe upon or impair that ideal, as Congress can make no law which is not in pursuance to that ideal. Nor can the state.

Otherwise there would have been no need for the American Revolution.
That is about as historical as I'm going to get right now.
160 Eastbound

_____________________________________


Your logic trumps even your grasp of our history. Well said.

Let the robertpaulsen type bozos of FR read your words and weep for their ignorance.
163 tpaine

______________________________________


robertpaulsen wrote:

Logic??? Drooling, mindless babbling is more like it.

"The Constitution is unconstitutional"! What is that?

Maybe you understand that pap -- I don't.
An amendment is part of the Constitution. It is the Constitution.

______________________________________


Paulsen, you quoted "The Constitution is unconstitutional". --- As if someone here wrote that. No one did.

And imo, calling Eastbounds post #160 "Drooling, mindless babbling" is getting beyond the pale.
I suggest you get control of your emotions.
193 posted on 10/30/2004 8:06:26 AM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine; tacticalogic
"Joe, why do you want States to have the power to infringe upon our individual liberties?"

If the citizens of the individual states wanted to limit their state government, all they had to do was pass a state constitutional amendment.

They would certainly not come up with some convoluted scheme that sets up a federal government, include an Article VI which only tpaine and tacticalogic think apply the document to the states also, ratify a BOR two years later that SPECIFICALLY says "Congress shall make no law ..." and say it also applies to the states.

Riddle me this. If the Constitution also applied to the states, then Article I, Section 9 (No bill of attainder or ex post facto Law shall be passed) also applied to the states, correct?

Then why the need for Article I, Section 10, which says, " No state shall ... pass any bill of attainder, ex post facto law, ..."?

194 posted on 10/30/2004 8:11:04 AM PDT by robertpaulsen
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To: tpaine
Those were real points. The fact that you call it nitpicking demonstrates your cluelessness even further. Keep it up.
195 posted on 10/30/2004 8:11:27 AM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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To: tpaine
"As if someone here wrote that. No one did."

Nice strawman -- "as if".

I never said they wrote it. Is an amendment part of the constitution? And if someone says an amendment is unconstitutional, aren't they saying the constitution is unconstitutional?

Go back to bed.

"And imo, calling Eastbounds post #160 "Drooling, mindless babbling" is getting beyond the pale."

Sorry. I meant to say, "Drooling, mindless, idiotic babbling".

196 posted on 10/30/2004 8:18:08 AM PDT by robertpaulsen
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To: robertpaulsen
The federal government has never been challenged on second amendment grounds -- hence, no enforcement.
191

Bull. Such challenges have been made, but the USSC has refused to hear them.

197 posted on 10/30/2004 8:28:25 AM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: robertpaulsen
paulsen, why do you want States to have the power to infringe upon our individual liberties?

If the citizens of the individual states wanted to limit their state government, all they had to do was pass a state constitutional amendment.

The 'moral' majority in CA prevent gun owners here from passing a RKBA's type Amendment to the CA Constitution. -- Do you find such majority rule acceptable?

They would certainly not come up with some convoluted scheme that sets up a federal government, include an Article VI which only tpaine and tacticalogic think apply the document to the states also, ratify a BOR two years later that SPECIFICALLY says "Congress shall make no law ..." and say it also applies to the states.

Sigh.. For the umpteenth time, -- "Congress shall make no law ..." applies only to the 'establishment' clause.-- A point Justice Thomas reiterated in his last opinion, and we all argued over. You lost that debate as usual.

Riddle me this. If the Constitution also applied to the states, then Article I, Section 9 (No bill of attainder or ex post facto Law shall be passed) also applied to the states, correct? Then why the need for Article I, Section 10, which says, " No state shall ... pass any bill of attainder, ex post facto law, ..."?

Section 9 is specific to Congress, Section 10 to States. -- No riddle.

198 posted on 10/30/2004 8:55:27 AM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: inquest

Rest assured, I keep it up as much as possible.


199 posted on 10/30/2004 8:57:03 AM PDT by tpaine (No man has a natural right to commit aggression on the equal rights of another. - T. Jefferson)
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To: tpaine
Section 9 is specific to Congress

How can you say that? Section 9 is part of the "supreme law of the land" from Article VI that you constantly point out - "anything in the laws or constitutions of the states to the contrary notwithstanding". How can you say that states can violate it?

200 posted on 10/30/2004 9:01:10 AM PDT by inquest (We have more people patrolling Bosnia's borders than we have patrolling our own borders)
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