Kelo and the 14th Amendment: Exploring a Constitutional Koan

Vanity | 8/21/05 | Mark Edward Vande Pol

[Carry_Okie]

I wrote this in order to evoke the serious questions that need to be asked of John Roberts, as well as to bring into discussion what I have seen to be conservative hypocrisy as regards Kelo.

Please consider the links, as several are of historical import.

[Carry_Okie]

I think it important that FReepers start composing legitimate questions to be asked of Judge Roberts:

• What does Judge Roberts believe was the purpose of the Fourteenth Amendment, was it to incorporate the Bill of Rights against the States or was it to bar racial discrimination by State and local government?
• Does incorporation apply to the whole Bill of Rights? If not, does he subscribe to selective incorporation? What does he regard to be the exceptions?
• Upon what bases does Tenth Amendment Federalism outweigh the Federal power to determine what constitutes equal protection?
• Does he think that a headnote should carry the force of precedent if it has long been cited as such?
• What are his standards for determining settled law versus overturning it?
• How does he weigh the establishment clause against free exercise? If the establishment clause applies only to Congress, is it legitimate to use it to override a State Constitution?
• Given that Islam specifically mandates imposition of Sharia law in conflict with the Constitution, what are the limits to the free exercise clause?
• Does the free exercise clause permit sedition or treason?
• What limits are there upon free association?
• Do the President and the Senate have the lawful power to conclude treaties the scope of which entails enforcement powers that exceed those enumerated in the Constitution? If such can be proven, is said treaty void?

[Carry_Okie]

This is the article I mentioned in at the Young Republican event Saratoga.

[Cicero]

Extremely interesting. I have to get to church, but I'll be back for another look. Many very nice points.

[MACVSOG68]

bump for reading later

[gatex]

"They’ll just say that the original intent was to leave gun control up to the States "

They have already said it in two USSC cases --- Cruikshank and Presser.

Congress uses Interstate Commerce for gun control.

[Carry_Okie]

Thanks for the references, but it doesn't change the point of the article.

The point is that selective incorporation has produced a choice between federalism and federal power at the discretion of SCOTUS. It is an unjust system of law because of the power of that discretion.

That those looking for SCOTUS to incorporate the Second Amendment are likely to go disappointed is merely an illustration.

[Carry_Okie]

FYI

[inquest]

Does he think that a headnote should carry the force of precedent if it has long been cited as such?

That one should provoke a very interesting response.

[Carry_Okie]

No kidding. Hence the article.

I'd just love for a few congressional staffers to chew on this one.

[Issaquahking]

Ping for later read...

[hombre_sincero]

May I reprint your essay on a few web sites? (They are not commercial)

It would look like this one:

http://www.gohotsprings.com/usa/modules.php?op=modload&name=News&file=article&sid=951

I made sure to add your website link and plug for your book also.

[Carry_Okie]

Sure. That's why it's here.

[hombre_sincero]

If I could talk our local "AP / NYT affiliate" newspaper her to print this essay in their editorial section, would you give it a release for reprint?

Sometimes the editor here will "stomp the toes" of her MSM masters and print an opposing (to liberals) viewpoint - but ONLY in the editorials section.

[antisocial]

Great article! I hope every FReeper will thoroughly digest this article and question any prospective political office seekers as to their thoughts about the 14th. In my opinion, it should be repealed (it wasn't properly ratified anyway).
We need to repeal it because of the anchor baby fiasco also. If necessary it could be rewritten so as to be in concert with the 10th.

[Carry_Okie]

If I could talk our local "AP / NYT affiliate" newspaper her to print this essay in their editorial section, would you give it a release for reprint?

Yes, but the links are critical, so references to the URLs would have to be added for a print edition.

You will note that this article should cross the divide between liberal and conservative. Frankly, it quite deliberately doesn't take a position on how much federalism is best; i.e., whether to enforce federal guarantees in the BOR or allow local tyranny to progress. Personally, I wanted to engender some reflection on the topic, particularly in the light of continuing globalization.

Personally, I do think it is easier to replace a county board of supervisors or move than it is to replace the SCOTUS backed up with Federal bureaucracy.

[Carry_Okie]

We need to repeal it because of the anchor baby fiasco also.

That one isn't what you think it is. Consider this excerpt from the Slaughterhouse Cases.

[billbears]

Janice Rogers Brown is that you? LOL, really though excellent article, have read this argument, or at least discussion of both sides, several times from more learned conservatives (non-Republicans) since the Kelo decision

It's clear, to me at least, the 14th Amendment's incorporation theory is false and the Bill of Rights is separate only to apply to the federal government

[zendari]

The 14th amendment was and still is a complete disaster. I'm not exactly sure what "equal protection" meant in the 1860s, but I very much doubt it was meant to be expanded to mean just about anything that it means today.

[Carry_Okie]

Janice Rogers Brown is that you?

She should read it. It would make her more pissed off than she is already. When she's done with that, I've got a book for her. :-)

s clear, to me at least, the 14th Amendment's incorporation theory is false and the Bill of Rights is separate only to apply to the federal government.

That's my take.