This excellent essay has probably been posted in the past, but it is rarely referred to in todays "States right's" controversies on FR.
posted on 10/28/2004 6:03:12 PM PDT
But what about the sorry history of "states' rights" as a doctrine that southern states invoked by way of defending slavery and then, after the Civil War, the reign of Jim Crow? Does this not give weight to the question, "Why doesn't Washington trust the states?" Indeed it does, but here too there has been substantial misunderstanding over the years, with a seminal Supreme Court case at its core. The tragic compromise that led the Framers to accept slavery in their midst is well known. It took a civil war to abolish that institution, and the Civil War Amendments to secure the legal rights of the freed slaves.
The problem was that there is no such thing as 'state rights'only individual rights.
All gov't (local, state and Federal) are for the purpose of defending the individual from arbitrary power of either of these governments.
Neither one is inherently better then the other, only easier to control since it is smaller (Local and State).
Not remotely did the Framers intend that the clause would be converted from a shield against state abuse--its use in the first great Commerce Clause case, Gibbons v. Ogden -- into a sword, enabling Congress, through regulation, to try to bring about all manner of social and economic ends.
posted on 10/28/2004 6:23:18 PM PDT
("Oh bother!" said Pooh, as he chambered his last round.)
James Madison, the Father of the Constitution, elaborated upon this limitation in a letter to James Robertson: With respect to the two words "general welfare," I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators. If the words obtained so readily a place in the "Articles of Confederation," and received so little notice in their admission into the present Constitution, and retained for so long a time a silent place in both, the fairest explanation is, that the words, in the alternative of meaning nothing or meaning everything, had the former meaning taken for granted.
When in doubt ask the author. 'tis a pity how the true spirit of the Constitution is pretty much gone.
posted on 10/28/2004 7:09:53 PM PDT
(Exterminate the Moops!)
To: tpaine; abbi_normal_2; Ace2U; adam_az; Alamo-Girl; Alas; alfons; alphadog; amom; AndreaZingg; ...
Rights, farms, environment ping.
Let me know if you wish to be added or removed from this list.
I don't get offended if you want to be removed.
posted on 10/28/2004 7:31:14 PM PDT
( In Essentials, Unity...In Non-Essentials, Liberty...In All Things, Charity.)
Yes, the Tenth Amendment was the first to fall. I especially like the following:
if a power has not been delegated to the federal government, that government simply does not have it. In that case it becomes a question of state law whether the power is held by a state or, failing that, by the people, having never been granted to either government.
In Tennessee, three times the state courts have ruled that the state legislature does NOT have the power to institute an income tax (at least once before the 16th Amendment was "ratified"). However, the Tennessee legislature also voted to ratify the 16th Amendment.
This causes the following question to arise: How can a legislature vote to give the federal government the power to do something that they themselves do not have the power to do?
posted on 10/28/2004 8:06:06 PM PDT
by Blood of Tyrants
(God is not a Republican. But Satan is definitely a Democrat.)
To: nolu chan; tjwmason; carenot; carton253; sionnsar; Free Trapper; dcwusmc; Wampus SC; Fiddlstix; ...
"... 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.
Thanks for posting this today, tpaine. Later.
posted on 10/29/2004 7:38:59 PM PDT
("Neither a Scrooge nor a Patsy Be")
To: tpaine; All
posted on 10/30/2004 1:20:38 PM PDT
("Neither a Scrooge nor a Patsy be")
posted on 11/10/2004 4:23:26 PM PST
by Sam Cree
(Democrats are herd animals)
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