U.S. Constitution limits states' rights and powers

http://www.decaturdaily.com/decaturdaily/opinion/other/050410.shtml ^ | 7/10/06 | W.S. Dixon

[tpaine]

U.S. Constitution limits states' rights and powers

Following is the fifth in a series of columns by members of the Alabama Citizens for Constitutional Reform.

By W.S. Dixon

Several articles in the Constitution of the United States (especially Article IV) as well as several of the amendments to the Constitution (especially the 14th Amendment) apply to the state governments.

In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction of the equal protection of the laws."

This then makes the five freedoms guaranteed in the 1st Amendment --- religion, speech, press, assembly, and petition --- apply in the states.

If the Supreme Court of the United States had not made this interpretation of the above clauses in the 14th Amendment, the states would have been free to restrict religious freedom and even establish a particular religion as the official state religion, to prohibit any desired variety of speech, to limit or prohibit the printing or disseminating of any information the state decided was not allowed, to prohibit or restrict meetings of any kind as the legislature desired, and to prohibit or restrict access to state public officials. Other restrictions on the states are specifically stated in the U.S. Constitution in Article I Section 10. In addition, because of the powers assigned to the Congress, the states cannot regulate commerce with foreign countries nor with other states, nor can they naturalize citizens, fix standards of weights and measures, declare war, nor raise or support an army or navy.

Although we refer to the states within the United States by that designation, they do not meet the criterion of sovereign states because they do not have the power to provide protection from outside interference as indicated by the restrictions listed above.

State constitutions are limited, in part as a result of these restrictions. States do, however, have the ability to regulate all other levels of government situated within their territory --

[tpaine]

Very good, tpaine. I have taught you something.

Dream on hugh. -- And teach yourself a little humility. A swelled head is a terrible thing to inflict on your fellow FReepers.

[FreeReign]

The supremacy clause makes "incorporation" doctrine superfluous at best. The judges in every state are bound by the Bill of Rights.

The First Amendment Specifically refers to Congress?

States were not bound by the Frist Amendment and the rest of the BOR until the 14th Amendment came along.

[H.Akston]

Uncoordinated means that just because two things are won at gunpoint doesn't mean they're the same thing. You equated the 14th Amendment with freedom, when you said that freedom, like the 14th was passed at gunpoint.
The 14th Amendment is destructive to some of our 10th Amendment rights. Busing, is one example of that destruction, if you need one.

[William Terrell]

The way I understand it.

The states existed, then the Confederation, then the Federation, both for the purpose of representing the states' united business where it would be inappropriate for one sate to do alone (like declare war on a foreign power).

Most of the national power of the central government (power that affected the people in the states directly) was exercised through the states and the federal powers (power that affected the nation of states) affected the states directly.

The base of power is the ability to confer citizenship. Only sovereignty confers citizenship and the states made citizens . One was a citizen of Georgia, say, and by virtue of that was a citizen of the states united. The central government was the tail and the states were the dog.

The reasoning of the power to confer citizenship is that one must live somewhere in the continental US, and that had to be in a state, unless one lived in DC.

One was loyal to the state and its people, the central government being only a construct to administer the states' business, and affect some citizens directly depending on what they were doing (like moonshining). If a state tried to legislate in a federal power area, Article 6, Section 2 came into effect.

The states had their own constitutions, but different in orientation. Each State government exercises all powers against which it is not restrained by the Bill of Rights in the State constitution. The National government exercises only those powers which are contained in the provisions of the National Constitution, the Bill of Rights therein being further limitations on that power.

The 14th amendment turned all this on its head. NOW, all people in the US were federal citizens and just reside in a state. The true power flows from top down by virtue of the power to give citizenship. I'm not sure where federal naturalization came into the picture, whether right at the beginning of the Constitution, or later, but it doesn't matter to the concept.

We've been seeing more and more of the federal fist emerge ever since.

[H.Akston]

Yes the first amendment specifically refers to congress and does not bind the states. The 14th amendment still doesn't bind the states to the 1st Amendment - and if "incorporation doctrine" does, it's only because some federal judge has grossly misinterpreted the 14th Amendment.

[Eastbound]

Thanks. It seems so logical I can't understand why it has been over-looked for so long. Yes, the 14th may seal the gun-grabbers/controllers fate if the SC ever gets an appeal to opine about on this. I fear if a case does go that far, it will probably be shuffled to the bottom of the stack for a couple of decades and will be so dog-eared from handling, it will have to be re-submitted. ;<

[William Terrell]

6-2 was to keep the states from legislating and changing their constitutions to defeat the areas ceded to the central government.

Each state had their own constitutions with bills of rights in them, usually the first article. The bill of rights in the federal constitution were to restrain the federal government only.

The Preamble to the Bill of Rights:

" THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution."

[William Terrell]

WT, what are the "federal BOR"? Laws in the Constitution belong to neither Federal nor State, but are superior to both.

The federal Bill of Rights, amendments 1 through 10, with preamble

" THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution."

Constitutional provisions control what law Congress can turn out. They are the law for the minions of the central government, nobody else. Or they were before the 14th.

[tpaine]

The 14th Amendment is destructive to some of our 10th Amendment rights. Busing, is one example of that destruction, if you need one.

'Busing' is a stupid misapplication of the 14th. -- You're simply hyping the 'destruction of the 10th because you have an irrational hate of the 14th.

[H.Akston]

You might find it interesting to see how the upside-down position was arrived at:

http://www.freerepublic.com/forum/a38ae1fc86628.htm

[H.Akston]

Busing is indeed a stupid misapplication of the 14th. The problem with the 14th is it is so vague and sweeping, and hateful and spitefull to half the nation in 1868, that it makes all these "stupid misapplication"s possible. Vague laws give Judges legislative authority.
I don't "hate" the 14th Amendment, but I do hate the undermining of the Founders' intent as expressed in Article V, of how the document is to be modified.

[tpaine]

The 14th conveyed citizenship at the federal level whereas before it was conveyed at the state level.

I've never understood that argument.
-- Someone who was born in territory, and who lived all their life in a territory of the USA prior to 1868, -- certainly was a citizen of the USA; -- correct?

The 14th amendment turned all this on its head. NOW, all people in the US were federal citizens and just reside in a state.

No, we always were citizens of the USA, as well as of a State or territory. But citizenship status, in any case, does not give the feds any more 'power'. - Why should it?

The true power flows from top down by virtue of the power to give citizenship.

How so? -- Right now, I'm more affected by crazy CA 'laws' that violate my US Constitutional rights than by crazy fed 'laws'. I want all levels of gov't, fed/state/local, to stop the infringements, and the 14th came help with all..

I'm not sure where federal naturalization came into the picture, whether right at the beginning of the Constitution, or later, but it doesn't matter to the concept. We've been seeing more and more of the federal fist emerge ever since.

Funny, but I see that fist at every level. -- Denigrating the 14th doesn't help the fight.

[tpaine]

"-- I don't "hate" the 14th Amendment --"


Yet you pass up no opportunity to say it is unconstitutional, and to repost articles that call it:

The Squalid 14th Amendment

[Free Republic]
Address:http://www.freerepublic.com/forum/a38ae1fc86628.htm

[Eastbound]

You might consider that Congress rules that which it creates. It created rights and recognition for the freed slaves and invented an invisible federal zone for them to live in America. I don't think there was end-run around Article 5 when the created the 14th. With the 14th, Congress created federal citizenship for the freed slaves and anyone else that wanted to be a federal citizen.

In doing so, it could now recognize and protect the rights conferred upon the freed slaves with the 14th, in that they became citizens of the corporate federal government and citizens domiciled in the overlay of the corporate federal United States.

The 14th was primarily written for the bestowal of rights and protection of the freed slaves, thereinafter designated as 'citizens' (lower case 'c') Congress could not use the upper case, 'C', as in Citizen, for it was already defined in the Constitution and could not apply to freed slaves.

Search the Constitution, and you will find that every instance of the word, Citizen is specifically defined and is spelled with a capitol 'C' until the 14th amendment and thereafter, where it is always spelled with a lower case 'c'.

In other words, the 14th Amendment did not apply to Citizens of the several (non-federal) states.

Problem solved.

But is so doing, it may have been an accident that today even Citizens can claim lower-case federal 'citizenship' and claim equal justice -- something they didn't have to do prior to that time for everyone knew what the powers of government were and were not, for rights of Citizens were known to be inalienable and could not be conferred or abridged by government, but only protected by government.

Also remember, the states could not recognize the freed slaves as 'Citizens' either, so the federal government was required to provide an equal status and recognition for them, designating them as lower-case citizens. Not the same legal status as Citizens at the time, but considered as such.

I really don't know how else they could have solved the problem without altering the Constitution itself by re-defining the word, Citizen, to include freed slaves. IMO

[Eastbound]

correction: Change 'an accident that' to 'a fortuitous accident for'.

[Dead Corpse]

Each State had their own Constitution to govern those things not handled by the Fed Con. Re-iterating those Rights they held most sacred was redundancy. This fact was mentioned more than once in Elliot's. Both in the Continental Congress and at the State level debates.

It was felt having more than one layer of protections was better than having too few of too little power.

Changing the meaning of this ever so slightly is how the gun grabbers have justified EVERY "infringement" on something that quite clearly states "shall not be infringed".

As for other Rights, they are as equally plainly written. The 1St Amendments "Congress shall make no Law" pertains ONLY to a State religion in that one clause. All other clauses in the 1st are declaratory, general, and apply equally to the State legislatures via the Supremacy and 10th Amendment.

That this was ignored, partly due to racism, was why the 14th was deemed necessary. That those fought against it, and dreamed up "selective incorperation", were racists isn't necessarily so. More likely just power hungry individuals looking to drum up political capital.

The "law" view, instead of the Constitutional principle view, is what is taught in law schools throughout the country. This props up the legal fiction that even a fraction of the laws on the books are even remotely Constitutional. Without it, we wouldn't need the 1001 lawyers listed in every phone directory across the country.

That's one powerful "lobby" there. Especially when you factor in that damn near ever legislator is also a litigator or bar member of some stripe. A dangerous combo as we have ample evidence to support.

[Dead Corpse]

They are the law for the minions of the central government, nobody else.

Which is why Art 6 para 2 says "laws of any State to the contrary not withstanding" right? Because it doesn't apply to the States? Or why Art 4 Sect 2 forces the States to give equal Rights to all Americans? Because the Fed Con only applies to the Federal Government?

You are way off base.

[FreedomCalls]

The judges in every state are bound by the Bill of Rights.

The judges are bound to apply the BoR as they were written, but not until the 14th Amendment was passed was it true that "Congress" meant more than just the Congress of the United States. Until then the plain language of the First Amendment "Congress shall make no law ..." applied only to Congress not to the legislatures of the state governments. The USSC's interpretation of the 14th changed that plain language meaning what it says and saying what it means to now mean "Neither the Federal Congress, not any other level of government down all the way to individual school boards, shall make a law ...." by way of "incorporation" of the meaning of "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" to add state legislatures to the term "Congress" in the First.

[tpaine]

H.Akston:
The supremacy clause makes "incorporation" doctrine superfluous at best. The judges in every state are bound by the Bill of Rights.

FreeReign:
The First Amendment Specifically refers to Congress?
States were not bound by the Frist Amendment and the rest of the BOR until the 14th Amendment came along.

Hugh:
Yes the first amendment specifically refers to congress and does not bind the states. The 14th amendment still doesn't bind the states to the 1st Amendment - and if "incorporation doctrine" does, it's only because some federal judge has grossly misinterpreted the 14th Amendment.

You're both wrong in that only the establishment clause of the 1st specifically refers to Congress..
And, -- Article VI still binds the states to honor all the provisions of the 1st.

The fact that Congress is expressly forbidden in the 1st from "respecting an establishment of religion" does not allow State or local government [legislative] officials to violate their own oaths to "-- support this Constitution --" by writing laws "respecting an establishment of religion".
----- Just as they can't write valid laws infringing on our right to keep and bear arms.

This same principle applies to all levels of gov't in the USA. -- None of them can write infringements on our supreme Law of the Land.

[justshutupandtakeit]

You should condemn those who made the gun necessary who attacked the United States in the name of slavery.