Replies

(whew! that's a run-on sentence!)

LOL! I've been known to create those my self. Some of these concepts can get quite lengthy. :)

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Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens

Yes. The first 8 Amendments, being mutually agreed upon by all the States, was binding on all the States.

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disparaging specific civil rights which Congress had both defined and legally respected

As I understand it, no.

Congress' civil jurisdiction is defined by Article 1, Section 8, Clause 17:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--

"To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square)"

Ten miles square is the extent of the area the federal government is allowed to legislate for. This area is theirs and theirs only. They have no more right to legislate for the States in civil law the the State would telling Washington D.C. how IT was going to do things.

Out side of that area, it becomes a purely administrative authority.

To do it any other way negates the rights of the States to legislate for themselves.

Congress is supposed to decide how it's going to fulfill its obligations, not become the country's dictating authority.

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For example, in a Roe-like case the only "lawful" similar decision that sCOTUS might have made (assuming Congress had first acted) would be to find that their created "fundamental right" would henceforth prevent Congress from respecting a Civil Right to life for the unborn.

The SC should have declined the case since they had no jurisdiction to even hear it, IMHO.

Roe 'legalized' abortion, but it existed long before that. It's even mentioned in Blackstone's Commentaries

COMMENTARIES on the LAWS OF ENGLAND
Sir William Blackstone
1765
BOOK THE FIRST - OF THE RIGHTS OF PERSONS
CHAPTER THE FIRST - OF THE ABSOLUTE RIGHTS OF INDIVIDUALS

Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor. (snip) An infant in ventre fa mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to it’s use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.

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I have to admit I'll have to reread your original post. We seem to agree on the basics at least!

Its been rough going trying to explain to FReepers that the 'law' isn't whatever the government say it is while being flamed the entire time. :-)

Only if a State were explicitly exercising one of the few forbidden powers or (later, as I indicate) they were actively denying the substance of the first 8 Amendments to their citizens

Yes. The first 8 Amendments, being mutually agreed upon by all the States, was binding on all the States.

Actually, the BoR should not be considered without also taking into account the Preamble to same, the relevant portion of which reads:

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.

Without belaboring the point, please note that States––which preexisted the Constitution––were concerned about the abuse of "its powers"––and not "their powers" as one should expect if the BoR were intended at the start to be applied to the several States. Examination of the rest of the preamble and some of the articles themselves will bear this out.

For example, the 2nd Amendment:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This article exist mainly within the context of Article 1:Section 8, the relevant portion of which reads:

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organization, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The important function of the 2nd Amendment may be summed up in that context as follows: it PREVENTS the Congress from so regulating the formation of the Militia as to PREVENT it and further prevents the Congress from disarming the People from whom the Militia would be comprised.

Without the 2nd Amendment, and prior to the establishment of the National Guard (which is arguably an army-in-repose rather than a militia), it might have been the case that Congress could have so restricted the formation and calling out of State Militia as to effectively eliminate them; also, they might have regulated the quality and caliber of weaponry available to the People who might have formed any then possible Militia so as to render them impotent even by what might have been possible.

The 2nd Amendment prevents this.

Thus the 2nd Amendment doesn't exist to be binding ON the States, but rather, it exist for the States and to be a shackle on the Federal.

In the same vein, consider the 3rd Amendment:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Please consider, a "Soldier" is not the same thing as a militiaman. For one, he is a definitive article ("Soldier" nor soldier) and thus relates to belonging in a standing Army as governed by Article 1:Section 8. A militiaman, being part of the Militia, is not properly a "Soldier" in that sense.

Again, this is an article that exist to restrain Federal power (States possessing Militia and not national Armies) that benefits the several States and could not have been properly restrictive on the Militia prior to the formation of the National Guard, which IS an Army and which subsumed (perchance illegally) them (the Militia). The next five articles also appear in a very specific context with respect to each other and could be thought of as a procession of points of law rather than an independent assertion of same.

They appear in this order:

––the gathering of evidence;

––the accusation of wrong doing and the assurance of Due Process;

––the prosecution of Trial;

––the sorts of proceedings that shall constitute a proper Trial;

––and the restriction of the government to impose arbitrary pre-Trial restrictions of post-conviction punishments.

Following this careful arrangement we find (in addition to the Preamble to the BoR) clear indication as to which sort of entity was to be restrained by these five articles in the 7th Amendment where it states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

It was the "due process" and "equal protection" clauses of the 14th Amendment that extended the Amendments in question to be authoritative over the several States. A careful reading of the Slaughterhouse opinion will demonstrate that the 1st Amendment (among a few other essential rights) was already held applicable apparently because––ours being a representative Republic––it was imprudent to distinguish between the activity of a political party at the State level and the activity of same at the Federal level THUS the assurance given in Article 4:Section 2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

... was called into play.

You can find the text of the Slaughterhouse opinions here at:

www.law.umkc.edu/faculty/projects/ftrials/conlaw/slaughter.html

It is written is approachable language. I would, in particular, point you to Justice Field's dissenting opinion to help highlight so much of what is wrong with our legal system:

Mr. Justice FIELD, dissenting:

I am unable to agree with the majority of the courts in these cases, and will proceed to state the reasons of my dissent from their judgment.

The question presented is, therefore, one of the gravest importance, not merely to the parties here, but to the whole country. It is nothing less than the question whether the recent amendments to the Federal Constitution protect the citizens of the United States against the deprivation of their common rights by State legislation. In my judgment the fourteenth amendment does afford such protection, and was so intended by the Congress which framed and the States which adopted it....

The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always, controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right "to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property." That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress re-enacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment.

The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," and they have been the subject of frequent consideration in judicial decisions.

I am authorized by the CHIEF JUSTICE, Mr. Justice SWAYNE, and Mr. Justice BRADLEY, to state that they concur with me in this dissenting opinion.

Please understand the sections I've highlighted.

First, or rather second, in the second bit I highlighted it was Justice Field who MOST CLEARLY described the motivation for the adoption of the 14th Amendment––Congress had in 1865 passed the very first Federal Civil Rights Act only to find that they did not have the enumerated authority to respect any form of civil rights that the several States could not disparage. Thus in the "privileges or immunities" clause of the 14th Amendment the empowered themselves accordingly and the reissued the 1865 law under the auspices of their new, legitimate power.

Which brings me to the first bit I highlighted.

Justice Field opines that this then new power for Congress to respect civil rights, the guarantee that the first eight Amendments do apply to the several States, AND the protection previously determined to be necessary for Article 4:Section 2 to properly operate ARE NOT ENOUGH!

He wants to do as the Butchers of N.O. demand and also find that the 14th Amendment can be intentionally misconstructed to empower the supreme Court to consider the 9th Amendment as ALSO being in force over the several States.

But doing so would have created a dramatic REVERSAL between the role of Congress and of the Court, or indeed any court, since IF sCOTUS were empowered to define inalienable rights from out of the mist of unenumerated rights (as per the 9th Amendment) and then enforce them on the several States, THEN the paltry "power" of Congress to define mere civil rights would be an insignificant thing indeed!

Had Justice Field and his companions carried the day all those years ago then the principal authority to ACT in all matters of rights would have been with the Supreme Court, and not Congress.

In light of that, we should be humbled and awed by the sheer arrogance and audacity of Justice Bradley to opine in his own lonely dissent that (essentially) the activities of a legislature DO NOT constitute a proper form of Due Process.

Indeed, one might see our courts presently acting on the basis of their previous opinions (which are not legislation) much as if Justice Field HAD carried the day.

That's probably enough for this post. ^_^