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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: tpaine

They are not "conservatives" in the modern political sense of the term.


51 posted on 10/28/2004 11:01:58 PM PDT by capitan_refugio
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To: capitan_refugio
--- day in, day out, self described conservatives on this site claim they cannot understand these basic principles about our liberties.
Why is that?

They are not "conservatives" in the modern political sense of the term.
51 capitan_refugio

Bears repeating.

52 posted on 10/28/2004 11:07:03 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: stainlessbanner
The DOI was rejected because slavery in the Pre Civil War South was seen as a positive not a negative. Doesn't even make sense.

The Colonial Southerners did not doubt that all men were created equal in the sense of life, liberty and the pursuit of happiness, that is why they saw slavery as an evil

Remember Jefferson wanted to accuse the King of bringing slavery to the colonies?

Slavery thus, was never seen as contradicting the Declaration.

The Pre-Civil War South did reject the premise of all men were created equal, hence slavery became a positive good to be fought for.

Make sense now?

53 posted on 10/28/2004 11:45:28 PM PDT by fortheDeclaration
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To: capitan_refugio
Thank you.

Here is the father of anti-Declaration movement, Calhoun.

http://www.loc.gov/loc/madison/jaffa-paper.html

We have already seen Calhoun, in his speech on the Oregon bill, ridiculing the Declaration of Independence for saying that al l men are created equal. All men are not created. With the exception of Adam and Eve, all human beings come into the world as infants, in a state of entire dependency. Yet Calhoun himself speaks of "man" properly occupying a place "in the scale of beings much above the brute creation." He is then at one with Jefferson in believing that "creation" is represented by a "scale of being." And if "man" as such can occupy that elevated place on that scale, it must be also be the case in principle that "all men" can occupy it. Since the Declaration speaks both of "barbarous ages" and " merciless savages" it is clear that all men do not occupy in fact the place that all occupy in principle. But Calhoun will deny that the equality of man on the scale of creation has the significance assigned to it by Jefferson.

The natural equality proclaimed in the Declaration has as its corollary that legitimate civil society is a voluntary association. The Massachusetts Bill of Rights provides us with this gloss on the doctrine of the Revolution:

The body-politic is formed by a voluntary association of individuals; it is a social compact by which the whole people covenants with each citizen and each citizen with the whole people that all shall be governed by certain laws for the common good.

The reason that the body-politic results from the voluntary agreement of individuals is that

All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining safety and happiness.

Human beings, according to the doctrine of the Revolution, are equally possessed of natural rights. Because of this equality, it is their voluntary agreement that makes them members of a body politic. This voluntary agreement is however an agreement in accordance with reason. Human beings can act voluntarily because they can see--that is, understand--the difference between a body politic within which personal liberty is secure, and property is safe, and a despotic one, in which these conditions are not met, and in which therefore safety and happiness are not possible. Free civil society is in accordance with human nature, despotism is not. Safety and happiness are rational, not random concepts, natural rights are not merely the conditions upon which men enter civil society. They are also the guidelines of constitutionalism--the ever present principles by which the distinction between free and despotic government is preserved. According to Calhoun, however, neither our membership in society, nor society's subjection to government, involves rationality or voluntary action in the slightest degree. In one of the most revealing passages of the Disquisition, he writes that government "is not a matter of choice ... Like breathing, it is not permitted to depend upon our volition .

"Calhoun's denial of natural equality is pro tanto and ipso facto a denial of man's nature as a free and reasonable being. In this, of course, he anticipates the metaphysical determinism of contemporary behavioral science....

When in 1861 eleven southern States attempted to secede from the Union, they did so in obedience to a legal theory that was derived from Calhoun. For the right of secession was nothing more than the sanction for the concurrent majoritarianism they had learned from Calhoun.

That they were exercising this "right" for the sake of a policy of extending chattel slavery--the ultimate denial of minority rights--did not strike them as a paradox, much less as a contradiction. This was because they had been instructed that "the right of a minor party" was never a matter of ratiocination.

For such knowledge there was always a "better guide than reason. But the "better guide than reason" turned out--not surprisingly, given Calhoun's Darwinian presuppositions--to be war.

Calhoun's 1850 prophecy of the coming war in one of his last great Senate speeches is equally remarkable for its clarity of vision and for its blindness. He knew that the south would attempt to withdraw from the Union, if the future of slavery were seriously in jeopardy. And he knew t hat the Union would fight to preserve itself. But he did not see that the Union had an interest in human freedom that was different from its interests in commerce, manufactures, or land. He did not see this because, although a patriot . himself, there was no room in his theory of the human soul for love of country, any more than for love of justice. But then according to his account of the soul in the Disquisition, neither was there room in that same theory for the political science of John C. Calhoun.

54 posted on 10/28/2004 11:52:44 PM PDT by fortheDeclaration
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To: tpaine
Murder is tried in State courts, & guilt is decided by juries, not legislative decrees declaring that abortion is murder. You say, "IF life is involved". -- Exactly the point. A fertilized human egg is alive. It is not yet a person, a 'life'. Later in pregnancy the State becomes involved in protecting that soon to be persons life. -- But not at conception. That is the point of Roe v Wade, as I'm sure you know. It's a State issue.

The point I was making was that if it could be proven that life began at conception then the Federal gov't would have an obligation to defend it.

What they did in Roe vs Wade was deal with life on the premise of viability, could it survive by itself.

Hence, the first 3 months unlimited abortions were allowed.

After that, they were to be more restrictive based on other factors (life of the mother)

Never were they to be totally free as the pro-abortion movement would have us believe.

Now, Roe vs Wade may have been as bad a decision as the Dred Scott decision which stated that the slave was a non-person.

The point is that no state can ignore murder as a crime.

If the state of Texas stated that it was ópen season'on people with red hair and if anyone committed a crime against them, the state would not prosecute them, then the federal gov't would be obligated to step in.

While judically the states handle the crimes, the 'right'of life is protected by the Federal gov't insuring every state and local gov't protects it equally.

If the Federal gov't itself rejected this principle then the people would be justified in overthrowing that Federal gov't as being at war with the principles of the Declaration

55 posted on 10/29/2004 12:46:10 AM PDT by fortheDeclaration
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To: Eastbound
The States cannot legalize it." But the fedguv can? Didn't Roe v Wade over-ride state's rights to ban abortion except in some instances? Seems to me that the states were handling it much better than the fedguv is. Doesn't abortion on demand, a decision of the USSC, offer far less protection to life than what the states offered? Maybe I'm mis-understanding you. I still think Roe was a case where the fedguv over-stepped its enumerated powers.

Yes, but in order to do so, the Federal gov't had to defend abortion by stating that was being aborted was not a person.

Had the Court decided that a fetus was a human being abortion would have to be outlawed in every state, (with the possible exceptions of the mothers life being in danger)

Now, the point is that the Federal gov't acts as a balance to the states, to insure that a local tyranny doesn't develop.

The People through the states keep an eye on the Federal gov't to make sure it is not becoming tryannical.

Federalism is about checks and balances, where different levels of gov't are in place to keep an eye on the other.

By the way, this is why a Constitutinal amendment is going to be needed to define marriage.

Here the Federal gov't will put a check on the states abusing (through their courts) the definition of marriage.

56 posted on 10/29/2004 12:56:34 AM PDT by fortheDeclaration
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To: farmfriend

BTTT!!!!!!!


57 posted on 10/29/2004 3:02:13 AM PDT by E.G.C.
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To: tpaine
I always like to ask some of FR's resident defenders of the "general welfare" to enlighten us all.

They don't like to engage the issues on such clearly defined terms.

58 posted on 10/29/2004 4:46:14 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: Eastbound

bump for later, thanks for the invite.

The Federalist did point out that the BOR ought to be superfluous, but the anti's seem to have stronger arguments after a couple hundred years...

hmmm, "powers reserved" seems to bump up on the idea of state's rights, after a fashion. After all, the people delagated certain of their powers to the states, who delegated certain of their powers to the con con and therefor to the federal gov't. The issue is what powers did the people retain absolutely for themselves, perhaps.

more time for thought later.


59 posted on 10/29/2004 4:54:01 AM PDT by Apogee (vade in pace)
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To: fortheDeclaration; Happy2BMe; TapTheSource
>>This was Calhoun's notion that the State was itself a sovereign entity and had 'rights'to protect when it was, in fact, a part of the Federal system whose function was to protect individual rights.<<

Exactly, this is why States have their own Constitutions. They determine how the States will protect the individual rights of State citizens from the overbearing federal government.

I am not enough of a historian to say when the last battle of a state vs the feds was. Possibly, here in Nevada when we objected to the Feds dumping the nations spent uranium on our grounds. Yes, we lost the case.
60 posted on 10/29/2004 5:24:51 AM PDT by B4Ranch (´´Firearms are second only to the Constitution in importance; They are our teeth for Liberty)
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To: tpaine

bump


61 posted on 10/29/2004 5:28:28 AM PDT by foreverfree
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To: Drammach

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.


62 posted on 10/29/2004 6:36:39 AM PDT by RayStacy
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To: tpaine

Not at all sure what you're talking about here. Art VI does not prohibit the states from doing as they please re civil liberties. Again, MANY states (six, I believe)had state supported churches. What is an RKBA??? The BOR IS irrelevant here -- it simply did not apply to the states until after the civil war. Read McCullough vs. MD, brought in 1814, I think. Read the 1st amendment.... CONGRESS shall make no law. Don't say anything about state legs.


63 posted on 10/29/2004 6:43:50 AM PDT by RayStacy
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To: tpaine
"... provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States."

All right then, what are those "privileges and immunities of citizens of the United States"?

As "citizens of the United States" (not a particular state), those privileges and immunities have been narrowly defined in the Slaughter House Cases as not much more than “the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts.”

The court added, "Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations are dependent upon citizenship of the United States, and not citizenship of a State."

"One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered."

The bottom line is this. The P&I Clause of the 14th offered very little protection from rights violations by the states. The P&I Clause was harmless to the concept of Federalism.

It was the Due Process Clause of the 14th that was perverted by the courts to selectively apply the BOR to the states, something the Founding Fathers never intended.

64 posted on 10/29/2004 7:21:53 AM PDT by robertpaulsen
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To: Eastbound
"... giving the states the power to legislate some of those rights away."

What are you talking about? You'd better explain.

Prior to Incorporation, the states were only bound by their state constitution. For example, prior to the incorporation of the 4th amendment in 1949, the states were free to admit evidence into state court that was obtained without a search warrant.

Incorporation restricted the states' ability to infringe on rights protected by the BOR.

The second amendment, to which you refer, has never been incorporated. States are bound only by their state constitution when it comes to the RKBA.

65 posted on 10/29/2004 7:35:45 AM PDT by robertpaulsen
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To: tacticalogic
Another inconvenient truth is that the Founding Fathers never intended the BOR to apply to the states. So?

I'm sure there were lots of things the Founding Fathers never intended --freed slaves for one. So?

Is the author suggesting that we revert back to the Constitution of 1789, since that is the ONLY constitution the Founding Fathers INTENDED.

66 posted on 10/29/2004 7:42:20 AM PDT by robertpaulsen
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To: robertpaulsen

You have it exactly right. Why don't you help me out a bit with these people who think otherwise. BTW, what I think he's saying about inc. is that once the door was opened, merely by mentioning a right, the sly and the tricky would be given leverage to take that right. It's NOT what was intended, but it's what happened. The 2nd amend is a FAB case in point. Merely mention a right, and you give the scum sucking filth pig dog whore democrats the leverage to say, "See! If you're in a militia, you can have a gun, but only if you're in the militia."


67 posted on 10/29/2004 7:45:42 AM PDT by RayStacy
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To: robertpaulsen
Another inconvenient truth is that the Founding Fathers never intended the BOR to apply to the states. So?

Then you agree that the article's observations on the Commerce Clause and General Welfare Clause are correct?

I'm sure there were lots of things the Founding Fathers never intended --freed slaves for one. So?

Is the author suggesting that we revert back to the Constitution of 1789, since that is the ONLY constitution the Founding Fathers INTENDED.

If the Founding Fathers intended for the Constitution that they wrote to remain intact and unaltered they would not have included provisions for amendment. Peddle the histrionics to someone else.

68 posted on 10/29/2004 7:54:38 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
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To: RayStacy
Glad to help, but there are those in this thread who will never be convinced by the truth.

It is true that incorporation protects a right from infringement by the states. Some look at this as a good thing and, on the surface, appears to be so.

But, two things. One, the Founding Fathers had the opportunity to "incorporate" the BOR when the were drafting the amendments. It was rejected.

Two, when an amendment is incorporated, the interpretation of that amendment is done by the USSC, and that interpretation then applies to all the states.

For example, prior to the incorporation of the 1st amendment, each state, by their individual state constitutions, defined the speech that they would protect -- federalism in action. But once the 1st amendment was incorporated, the USSC defined speech -- and that's why all state must allow nude dancing as "protected speech".

THAT'S where the problem lies. That's why we're so lucky that the 2nd amendment is not incorporated. Can you imagine the USSC defining "arms", or "bear" or "keep"? They might, for example, define "arms" as rifles only, or "bear arms" as not concealed, or "keep" as in a state armory. That interpretation would then apply to each and every state equally.

69 posted on 10/29/2004 8:06:19 AM PDT by robertpaulsen
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To: tpaine
IMO, General Welfare is not taking money from one citizen and giving it to another. That is specific welfare.

General Welfare is more like the federal highway system -- similar to the Post Office, not everyone directly benefits, but close.

70 posted on 10/29/2004 8:13:54 AM PDT by robertpaulsen
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To: robertpaulsen

Some other problems with incorporation. 1. Why is it that the amendment that allegedly incorporates the BOR NEVER EVEN MENTIONS THE BOR??? 2. The PRIV and IMM clause. I think we would all agree (I HOPE) that the Fed gov is not entitled to set up a welfare state. It's not in the enumeration. The fed gov is not entitled to set up a dept of educat. It's not in the enumeration. Therefore, as a citizen I am IMMUNE to being taxed for welfare or edu from the fed gov. IF, as a citizen of a state, I am to enjoy, on the state level, all IMMUNITIES that I am entitled to from the fed gove, it follows to reason, that even the STATE gove may not set up a welfare program or even a school system. Surely this was not intended. People who go in for incorporation, basically say "The same rules apply to fed and state gov now." They think this somehow only applies to BOR type legislation, but where do they get that narrow view? Again, the amend does NOT say anything about the BOR. 3. The biggest problem. The amendment in question either DOES or it does NOT say, "The bor now applies to the states." We can all agree on that, I hope. But, it ABSOLUTELY POSITIVELY does NOT say "The USSC will decide exactly which rights apply and which do not, and the USSC shall make these determinations on a case by case basis as the USSC shall see fit." That much, I guarantee you the amendment did not intend, and yet, that's exactly what we have. The USSC has never once said that the bor applies to the states, as many people think. It has instead moved on a case by case basis. Scumbags.


71 posted on 10/29/2004 8:18:48 AM PDT by RayStacy
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To: fortheDeclaration

So all homicide cases should be held Federal Courts?


72 posted on 10/29/2004 8:32:54 AM PDT by TheFrog
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To: RayStacy
"1. Why is it that the amendment that allegedly incorporates the BOR NEVER EVEN MENTIONS THE BOR??? "

Excellent point. When drafting the 14th amendment, it would have been very simple to word it such that the first eight amendments would "heretofore apply to the states".

The author said that was his intention, but history doesn't support it. That very same Congress subsequently passed statutes that were redundant and unnecessary had the 14th applied the BOR to the states.

Plus it took almost 100 years to "incorporate" the BOR, and still the 2nd, the 3rd, parts of the 5th, and the 7th only apply to the federal government.

"... does NOT say "The USSC will decide exactly which rights apply and which do not, and the USSC shall make these determinations on a case by case basis as the USSC shall see fit."

Yes but.

Someone has to interpret the Constitution. What is an "unreasonable" search? Do we really want Congress, which writes the statutes, interpreting "unreasonable"?

That was settled in a landmark case, Marbury v Madison in 1803:

"The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since."
-- usinfo.state.gov

73 posted on 10/29/2004 8:37:00 AM PDT by robertpaulsen
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To: TheFrog

You are correct. This is another misconception out there. That "Federal offense" means "Serious offense." Wrong. Most federal statutes are bizarre legal cobbled together creatures involving state lines, telephone lines, or the high seas. Murder, kidnapping, arson, rape, etc. are all state matters. The best example: remember the "Mississippi Burning" civil rights murders. The state refused to move, of course, so the fed gove stepped in and convicted the killers. The charges? Depriving a citizen of his civil liberties. The G did NOT charge them with murder because they COULD NOT charge them with murder. The g's case amounted to "You deprived them of their liberties by murdering them." but there was no murder charge.


74 posted on 10/29/2004 8:38:59 AM PDT by RayStacy
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To: fortheDeclaration
I do not agree Roe vs Wade is a State issue if life is involved.

Lots of things have life involved. Are all of them Federal Government Issues?

How about murder?
Capital punishment?
Adequate medical care?
Adequate nourishment?
Adequate product safety?
Safety from Natural Disasters?

75 posted on 10/29/2004 8:40:41 AM PDT by Doctor Stochastic (Vegetabilisch = chaotisch is der Charakter der Modernen. - Friedrich Schlegel)
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To: robertpaulsen

I agree with you about the SC interpreting the CONS, but... it is criminal the way they've decided that the 14th applies the BOR to the states, and THEN they go about and say what applies and what does not and when it applies, etc. The 14th either did or did not make the BOR apply, if it did then we wouldn't need the court taking this step by step approach.


76 posted on 10/29/2004 8:43:31 AM PDT by RayStacy
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To: fortheDeclaration
No one here is contesting the point that a state cannot ignore murder as a crime.

Therefore the point you were attempting to make; -- 'that IF it could be proved that life [personhood] began at conception then the Federal gov't would have an obligation to defend it', -- is moot, -- considering that no live person can be proved to exist until some time after conception.
77 posted on 10/29/2004 8:50:12 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: RayStacy
"then we wouldn't need the court taking this step by step approach."

Actually, the Constitution itself forces us to do it this way.

The USSC cannot just decree that, for example, abortion is a right protected by the Constitution. Congress cannot check with the USSC prior to writing a statute to see if it's constitutional.

It is only after the fact that a case must wend its way through the system to eventually arrive at the USSC. And, even then, the USSC may choose not to hear it.

As the cases came before it, the USSC decided that a certain right was so fundamental to the concept of liberty, that due process demanded that the right be protected by the state.

It is this "due process' clause of the 14th amendment, not the privileges and immunities clause, that is used to "incorporate" a given right.

78 posted on 10/29/2004 8:53:02 AM PDT by robertpaulsen
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To: fortheDeclaration; tpaine; Apogee; All
"While judically the states handle the crimes, the 'right'of life is protected by the Federal gov't insuring every state and local gov't protects it equally. If the Federal gov't itself rejected this principle then the people would be justified in overthrowing that Federal gov't as being at war with the principles of the Declaration"

There are many points popping up in this post. Let's hope by resolving one or two, the logic can be applied to resolving some of the others.

Here's one for today: I understand the principle of the argument that you pose, that the fedguv steps in to protect life when the state fails to.

But it is not consistent, which is my point. It is a pick and choose matter for the feds to become involved, only when it's to their advantage.

If the fedguv is going to protect life with Roe, why does it not protect life by incorporating the second amendment across the board? All state and federal gun control laws should be abolished.

We know that gun control laws deny people the right to defend their lives. Therefore, their right to life has been abolished. Is not the federal government guilty of being at war with the principles of the DOI, the same as if would be if Roe were reversed?

79 posted on 10/29/2004 9:01:20 AM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: B4Ranch; fortheDeclaration; everyone

fortheDeclaration wrote:

>>This was Calhoun's notion that the State was itself a sovereign entity and had 'rights'to protect when it was, in fact, a part of the Federal system whose function was to protect individual rights.<<


Exactly, this is why States have their own Constitutions.
They determine how the States will protect the individual rights of State citizens from the overbearing federal government.
B4R

_____________________________________


Good points that need repeating.


80 posted on 10/29/2004 9:02:41 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
Those of us that believe so are a very small minority at FR, surprisingly enough.

I would have to agree with that.
The problem is that too many, way too many, people in this country have come to believe that, "might makes right".

The institution of government should protect against that notion, not foster it as it has done for half a decade, or more.

81 posted on 10/29/2004 9:05:46 AM PDT by Just another Joe (Warning: FReeping can be addictive and helpful to your mental health)
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To: robertpaulsen
Pilon wrote:
"... provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States."

All right then, what are those "privileges and immunities of citizens of the United States"?

To paraphrase what Justice Harlan once said:  
    --- 'The full scope of the liberty guaranteed by the Privilege & Immunities Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. 
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . ."

The bottom line is this. The P&I Clause of the 14th offered very little protection from rights violations by the states.

You wish this were so, paulsen; -- why is that?

The P&I Clause was harmless to the concept of Federalism. It was the Due Process Clause of the 14th that was perverted by the courts to selectively apply the BOR to the states, something the Founding Fathers never intended.

Again, -why- do you see requiring due process as being "perverted"?
It makes no sense to WANT a State to have the power to ignore due process.

82 posted on 10/29/2004 9:28:52 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
"... giving the states the power to legislate some of those rights away."

"What are you talking about? You'd better explain."

The simple fact that the states can prevent you from protecting your life through gun laws abolishes your right to life. Can't get any simpler that that.

< . . . snip . . . >

"Incorporation restricted the states' ability to infringe on rights protected by the BOR. The second amendment, to which you refer, has never been incorporated. States are bound only by their state constitution when it comes to the RKBA."

Exactly my point. The fedguv never incorporated the second. Therefore, my right to life has been jeopardized, as the fedguv allowed the state to legislate away my right to defend my life.

83 posted on 10/29/2004 9:52:04 AM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: tpaine
"To paraphrase what Justice Harlan once said:"

I didn't ask what Justice Harlan once said. But you do like the vagueness of his answer, don't you? Just as you absolutely love the vagueness of the 9th and 10th amendments.

Give me, tpaine, an example of a privilege and immunity of citizens of the United States. Are you saying that the RKBA or free speech is a privilege and immunity of citizens of the United States?

84 posted on 10/29/2004 10:08:08 AM PDT by robertpaulsen
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To: robertpaulsen
"THAT'S where the problem lies. That's why we're so lucky that the 2nd amendment is not incorporated. Can you imagine the USSC defining "arms", or "bear" or "keep"? They might, for example, define "arms" as rifles only, or "bear arms" as not concealed, or "keep" as in a state armory. That interpretation would then apply to each and every state equally."

I see your point here. The only solution I see is for someone to sue the state or the fedguv on a gun violation for deprivation of rights. No one would argue that the right to life is not an unalienable right. Whether I choose to use a gun or or a knife or a baseball bat is my business. At my age and physical condition, I would choose a fully automatic pistol, and would probably choose to coneal it as to not freak out everyone when I go to the bank or the deli.

85 posted on 10/29/2004 10:10:48 AM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: Eastbound
"Therefore, my right to life has been jeopardized, as the fedguv allowed the state to legislate away my right to defend my life."

No, you still have the right to defend your life -- just not with a gun.

The state has the power to regulate arms. They've always had that power. They've never ceded that power to the federal government -- as a matter of fact, the wrote the second amendment to confirm that fact.

You don't like your state's gun laws? You can either vote to change them or move. That's the beauty of federalism.

You think that incorporating the 2nd amendment would be better? I don't.

86 posted on 10/29/2004 10:16:30 AM PDT by robertpaulsen
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To: Eastbound
"The only solution I see is for someone to sue the state or the fedguv on a gun violation for deprivation of rights."

Oh, that's been done. Recently we've had Silveira v Lockyer (a state case) and US v Emerson (a federal case).

The USSC refused to hear either case.

87 posted on 10/29/2004 10:23:58 AM PDT by robertpaulsen
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bump


88 posted on 10/29/2004 10:31:43 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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To: fortheDeclaration
"By the way, this is why a Constitutinal amendment is going to be needed to define marriage. Here the Federal gov't will put a check on the states abusing (through their courts) the definition of marriage."

It's been my contention for a long time that the definition of marriage is already legally defined. The Mass. supreme court decided it could arbitrarily change the definition of a word to suit its needs. That is legislating from the bench and usurps the powers of congress.

But even Congress cannot change the definition of a word that is legally defined and in use for centuries. The legal definitions of words are the basis for our rule of law.

Congress already faced that dilemna when it racked its collective brain deciding how to word the fourteenth amemdment. In that the word, Citizen, was capitalized in the U.S. Constitution and had a very specific meaning and was already in use, it chose not to change the definition and opted for the lower case spelling in the Fourteenth.

In fact, Congress had a double-dilemma to solve. How to grant rights to its new class of citizens (lower case) when it knew it did not have power to grant rights, as they are unalienable. It did the best it could by acknowledging that its citizens had all the rights and immunities and privileges as Citizens, though they were considered federal citizens -- citizens of a the federal government (United States), but only by contract.

If the homosexual 'union' dilemma is going to be resolved, I think it has to be resolved in like manner. If the homosexual community wants to enjoy the legal benefits of married bliss, they must come up with a word other than the word 'marriage' to define their status, as the word 'marriage' is already in use and is legally defined.

Then they would have to push for an amendment to gain legal recognition of that word to qualify for protection under the Civil Rights Act.

If they succeeded, it would be a federally-regulated and protected community, on the same order as 14th amendment contract citizens.

In any case, if they wanted it bad enough, it's anyone's right to seek recognition and equality.

I doubt seriously that such an amendment would pass, but at least the homosexual community cannot say they were discriminated against as a class, for the class has to first succeed at gaining recognition as a class. If it fails to do that through the amendment process, they have no case and the people would have had their say. IMO.

If they steal the word 'marriage,' and the courts allow it, the rule of law in America will be destroyed, as the courts will have a precedent that will allow it change the legal definition of any word. Think of how that might impact unalienable rights and contracts.

89 posted on 10/29/2004 10:52:35 AM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: RayStacy
Our Bill of Rights are still pretty clear to me.

Do you have a problem with States obeying them as the Law of the Land?

Art VI, unless I'm missing something, is not a prohibition on the states.

You're missing the main point of it.
The --- "laws of any State to the Contrary notwithstanding" -- is very clear language.

The Bill of Rights is irrelevant.

Our 2nd Amendment RKBA's is "irrelevant"? Bet me.

I am discussing the ORIGINAL cons, which was ratified w/out a BOR. Furthermore, the BOR did NOT apply to the states until after the Civil War.

You're parroting the Statist line. Art VI proves you wrong.

The BOR applied ONLY to the Federal Gov. Many of the states, for example, (VA included) actually had state supported churches. If you lived in VA,you paid taxes to support the state church. That simple. Again, the prohibitions in Art 1, sec 10 are indeed thin.

Thank you ray, -- its always fun to see another anti-constitutionalist out himself on FR.

Not at all sure what you're talking about here. Art VI does not prohibit the states from doing as they please re civil liberties.

It does. -- You're just refusing to read & understand it.

Again, MANY states (six, I believe)had state supported churches. What is an RKBA??? The BOR IS irrelevant here -- it simply did not apply to the states until after the civil war. Read McCullough vs. MD, brought in 1814, I think. Read the 1st amendment.... CONGRESS shall make no law. Don't say anything about state legs.

Sorry Ray, -- but after reading your recent posts to paulsen, -- I'm convinced you're just another sycophant on 'states rights', not worth countering in detail.. -- I'll concentrate on refuting your idol paulsen.

90 posted on 10/29/2004 10:57:52 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
"No, you still have the right to defend your life -- just not with a gun."

Sorry. Logic dictates that If I value my life more than some perp who wants to take mine, I will use superior force. The battlefield will be tipped in my favor. If the perp uses a knife, I will use a gun. Laws are for the lawless. The perp is the lawless one, not me. I am acting in self-defense, against which there are no laws except the law of survival.

91 posted on 10/29/2004 11:00:36 AM PDT by Eastbound ("Neither a Scrooge nor a Patsy Be")
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To: tpaine

You're one of those sad little creatures who lashes out at people when getting stomped in debate. Art VI prevents states from legislating against civil liberties? Okay, sad little man, then why did the states have state supported churches? If the BOR liberties were always protected, why do we have the doctine of incorporation? Are you saying that the BOR applied to the states or aren't you. Tell that to Mr. Mccullough who lost his dock to the state of MD and wasn't compensated for it. (MCC VS MD) And NO, sad little, uneducated man, I am NOT a states rightser. States DO have rights. People have rights. The Fed gov has rights. I just happen to know what they are. Why does the 1st amend begin "CONGRESS shall make no law...", sad little man?


92 posted on 10/29/2004 11:24:10 AM PDT by RayStacy
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To: tpaine

You're one of those sad little creatures who lashes out at people when getting stomped in debate. Art VI prevents states from legislating against civil liberties? Okay, sad little man, then why did the states have state supported churches? If the BOR liberties were always protected, why do we have the doctine of incorporation? Are you saying that the BOR applied to the states or aren't you. Tell that to Mr. Mccullough who lost his dock to the state of MD and wasn't compensated for it. (MCC VS MD) And NO, sad little, uneducated man, I am NOT a states rightser. States DO have rights. People have rights. The Fed gov has rights. I just happen to know what they are. Why does the 1st amend begin "CONGRESS shall make no law...", sad little man?


93 posted on 10/29/2004 11:24:16 AM PDT by RayStacy
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To: robertpaulsen
Pilon wrote:
"... provided only that we are clear, and the judiciary is clear, that the Fourteenth Amendment gives the courts, through section 1, and the Congress, through section 5, the power to negate state actions that deny their citizens the privileges and immunities of citizens of the United States."

All right then, what are those "privileges and immunities of citizens of the United States"?

In answer I'll paraphrase what Justice Harlan once said:
      --- 'The full scope of the liberty guaranteed by the Privilege & Immunities Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. 
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . ."

The bottom line is this. The P&I Clause of the 14th offered very little protection from rights violations by the states.

You wish this were so, paulsen; -- why is that?

The P&I Clause was harmless to the concept of Federalism. It was the Due Process Clause of the 14th that was perverted by the courts to selectively apply the BOR to the states, something the Founding Fathers never intended.

Again, -why- do you see requiring due process as being "perverted"? It makes no sense to WANT a State to have the power to ignore due process.

I didn't ask what Justice Harlan once said.

I answered with his words. You can't refute them.

But you do like the vagueness of his answer, don't you? Just as you absolutely love the vagueness of the 9th and 10th amendments.

Amusing. -- You make vague remarks about my on point answers. -- Then rarely answer any questions of mine. Such phony tactics have become your trademark here paulsen.

Give me, tpaine, an example of a privilege and immunity of citizens of the United States.

Voting is a privilege and we have immunity from having our voting privilege taken away without due process.

Are you saying that the RKBA or free speech is a privilege and immunity of citizens of the United States?

In the sense that all of our rights, liberties, privileges & immunities, and life itself can be taken away by Constitutional due process of law, paulsen, --- yes.
I doubt that even you can dispute that.

Now again, answer the question..
-Why- do you see requiring due process as being "perverted"?
It makes no sense to WANT a State to have the power to ignore due process.

94 posted on 10/29/2004 11:38:10 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: Eastbound
Then I suggest you live in a state that permits this. Otherwise, your a$$ is goin' to jail.

This guy got lucky -- the State prosecutor decided to drop the case.

95 posted on 10/29/2004 11:51:59 AM PDT by robertpaulsen
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To: Eastbound; robertpaulsen
Eastbound wrote:
"Therefore, my right to life has been jeopardized, as the fedguv allowed the state to legislate away my right to defend my life."


______________________________________


No, you still have the right to defend your life -- just not with a gun.

The state has the power to regulate arms. They've always had that power.

They've never ceded that power to the federal government -- as a matter of fact, the wrote the second amendment to confirm that fact.
You don't like your state's gun laws? You can either vote to change them or move. That's the beauty of federalism.
You think that incorporating the 2nd amendment would be better? I don't.
86 robertpaulsen


______________________________________


Sorry. Logic dictates that If I value my life more than some perp who wants to take mine, I will use superior force. The battlefield will be tipped in my favor. If the perp uses a knife, I will use a gun. Laws are for the lawless. The perp is the lawless one, not me. I am acting in self-defense, against which there are no laws except the law of survival.
91 Eastbound

______________________________________


Arguing against Paulsen's circular 'logic' is a hopeless case Eastbound.

The man is convinced we have no basic right to self defense with any weapons at hand.
He truly believes that governments have an innate power to 'regulate', or even prohibit the right to bear ANY type of arm.

Try to tell me the above comment is not true, paulsen. Can you?
96 posted on 10/29/2004 11:56:40 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: RayStacy
RayStacy wrote:

I am NOT a states rightser.

States DO have rights.
People have rights.
The Fed gov has rights.

I rest my case. Only people have rights.

You're dismissed ray.

97 posted on 10/29/2004 12:03:35 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
"It makes no sense to WANT a State to have the power to ignore due process."

What kind of a statement is that?

Geez, tpaine, it also makes no sense to WANT a State to have the power to torture little kittens, either.

It's perverted to find some subjective "fundamental right to liberty" covered by the due process clause of the 14th amendment and then to selectively apply portions of the BOR to the states.

This process gave us abortion, sodomy, nude dancing, and a host of other inexplicable and twisted decisions made by a judicial oligarchy.

"In the sense that all of our rights, liberties, privileges & immunities, and life itself can be taken away by Constitutional due process of law, paulsen, --- yes."

Nonsense. You're saying that a "citizen of the United States", not even a citizen of a state, has the RKBA? Sheesh. That gives them more rights than an Illinois citizen living in Chicago.

98 posted on 10/29/2004 12:08:05 PM PDT by robertpaulsen
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To: tpaine

I've told you before that you lie. Why do it again?


99 posted on 10/29/2004 12:09:54 PM PDT by robertpaulsen
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To: tpaine

You sad little man. Still waiting for you to address my last post. "Only people have rites" is a rhetorical flourish that means NOTHING.


100 posted on 10/29/2004 12:21:50 PM PDT by RayStacy
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