Posted on 05/11/2007 8:49:53 PM PDT by The_Eaglet
Er... no. The writings of Mason, Rawle, and Story all give the lie to this one. The whole "the BoR only applies to the FedGov" was invented from whole cloth by Marshall. Once ratified, those first ten Amendments were "incorporated" into the Constitution and applied to the States via Art 4 Sect 2 and Art 6 para 2. It was Marshall's over turning of this via judicial legislation from the bench that required passage of the 14th Amendment.
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle 1829.
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals … It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin to the New York Historical Society, October 7, 1789
Jefferson even tried to warn us that the Judiciary might over step its bounds to make the Constitution mean things it was never intended to.
"The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric. They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone. This will lay all things at their feet..." Thomas Jefferson, letter to Thomas Ritchie, December 25, 1820.
So remind me again. Where do those who REALLY care about limiting the role of government and returning to the vision the Framers intended for this nation of states work then?
There are judges out there that not only understand but believe in the rights of the separate and sovereign states (Janice Rogers Brown is a good example of this). To work within the framework set by the opposition you are giving credence to the position. Perhaps instead of trying to 'work within that framework' we should work to elect politicians that will adhere to the intent instead of ones that promise a quick fix that will only make the situation worse.
That the Anti-Federalists would have created, in a Constitution they worked to defeat, a listing of rights that might have overridden some of their own states' domestic policies is absurd.
The fact is that the Federalists were mostly reluctant to add a Bill of Rights claiming that a bill of rights would only prohibit the federal government from doing things it had not the power to do anyway and might also be read to expand federal powers beyond those expressly enumerated to do whatever is not expressly prohibited by the bill of rights.
Conversely, the Anti-Federalists argued for a bill of rights...but not on the grounds that a listing of rights would protect individuals from both the new federal government and existing state governments. Rather, the Anti-Federalists argued that the Constitution left open the possibility of broad federal power against which the people needed a bill of rights.
why the framers of this Constitution omitted a bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance. We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.
--Anti-Federalist #84
The Anti-Federalists did not want a new federal government at all and certainly did not want to see the Constitution make illegal certain policies that existed in certain states at the time the Bill of Rights were ratified. The fact is that, in 1791, several states had official texpayer-supported churches. Several states did not guarantee jury trials in cases valued at more than $20.
That these states were jealously protective of their own internal policies is likely why the Senate (members of which were selected by the state legislatures and was therefore the legislative body representative of the states) rejected the proposed amendment that Madison believed the most important...the amendment that would have expressly restricted the states:
No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases
There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law. George Mason Objections to the Constitution
We the People explicitly said "shall not be infringed". We the People demanded privacy and security in our possessions. We the People demanded our rights of conscience not be violated. We the People placed those limits on ANY government operating in the US.
These are our Rights. A minimal set protected under the "Supreme law of the Land". Take them from us and we'll take back the power you are stealing. By force if necessary.
Here Mason was arguing against those who believed that the bills of rights in each of the states would protect against federal laws that encroached upon rights protected in the state constitutions. Mason was saying that a federal bill of rights was necessary because, for example, a provision in a state constitution that guaranteed the right of the people to free speech would not protect against a federal law that infringed on the right of free speech...because federal law (the law of the general government) is paramount to the constitutions of the states.
No question that many, maybe even most, of the drafters of the Constitution and state legislators believed that there are certain natural rights upon which no government can infringe. But ratification of the Constitution was ultimately a political battle and there is no way that most of the state legislators would have been willing to allow the new federal government to dictate to their state legislatures what the scope of these rights are...and there is no way the Federalists would have risked a revolt against the Constititution during the battle over ratification by suggesting that is what they intended the new government to do.
I posted the text of the Interstate Commerce clause which was part of the original constitution. I then referenced the 2nd Amendment (BTW, US vs. Lopez is a 2nd Amendment situation in which Congress attempted to ignore the Second Amendment (the RTKBA) in its zeal to regulate gun POSSESSION within a certain radius of schools and thereby slake the thirst of enemies of an armed citizenry to destroy actual constitutionally required freedoms. As anyone who despises Roe vs. Wade and its progeny can tell you, SCOTUS decisions are now a quite unreliable guide to our constitution.
No matter how fine a fellow SCOTUS Associate Justice Clarence Thomas truly is, his concurring opinion in US vs. Lopez was just that, a CONCURRING opinion, in any event. He agreed with and registered his agreement with the RESULT of the case but his reasoning was not the reasoning of the SCOTUS nor was it the decision of the SCOTUS.
That you think Dead Corpse is correct does not make him/her correct.
That either or both of you think that the free-trader ideology of the soon to be extinguished Federalist Party which motivated the Annapolis Conference and the Monticello (?) conference of those conspiring to replace the Articles of Confederation with the present constitution is understandable and you are probably right on that. BUT, it doesn't matter what their motivations were. It does matter what the text says. Plainly and unambiguously, the constitution grants to Congress the power to regulate interstate commerce, commerce with foreign nations and commerce with Indian tribes. It does not require Congress to so regulate. It does not prohibit such regulation and it does not specify particular regulations.
The Interstate Commerce Clause did not cover thirteen states unless and until thirteen states ratified the constitution. Since the Articles of Confederation required unanimity among the states to change constitutional arrangements, one might well argue that no states were covered until all had ratified. Unfortunately, our times are not the first for the practice of constitutional illiteracy by our leaders who should know better. Several states including the Commonwealth of Rhode Island and Providence Plantations did not ratify until much later than 1787 or 1788.
Thomas Jefferson had some skill at politics and his political party swept the Federalist elitists from the field by the very early 19th century. Aaron Burr had some skill with small arms and fired the best and most useful shot fired in the early republic in a little dustup at Weehawken, NJ.
Under English Common Law which was adopted whole at the conclusion of our Revolution, there was a principle of "expressio unius, exclusio alterius." That is: The expression of one or more items in a document of a series of items that might have been expressed works the exclusion of the others that MIGHT have been addressed. There was a desire for a right not to quarter soldiers in citizens' homes (3rd Amendment), for Freedom of Speech, Assembly, Press and Worship without an Establishment of a National Religion as the Brits had done with Anglicanism in the UK (1st Amendment) and for many other specific individual rights. Lawyers familiar with "expressio unius, exclusio alterius" worried that other rights might not be recognized. Hence the Ninth and Tenth Amendments. This was not a mere delaying tactic to thwart the congregation worshiping the almighty dollar above all else but a principled and practical objection go the proposed constitution in the absence of a bill of rights such as was enacted. The Federalists in a ridiculous dither against what amounted to the indirectly democratic decision-making envisioned by the constitution and protected by the bill of rights drove Hamilton from the field of political battle before Burr finished him off.
Thereafter, the Federalist dead hand of the past was wielded by the power-grabbing anachronism, Chief Justice John Marshall until he went the way of all flesh to be replaced by Andrew Jackson who rightly despised Marshall.
Your last point has some validity. The fedgov did not presume to wield all those powers until liberal 20th century SCOTUS majorities caved to FDR and his "pragmatist" views and methods by inventing the "incorporation" theory whereby it was theorized that whatever liberals valued in the bill of rights was "incorporated" via the 14th Amendment and whatever they did not value was not. Scholars searching the constitution for the source of that distinction have been as unsuccessful as scholars have been in searching for the "constitutional" text mandating that abortion be freely allowed in all 50 states while gun ownership can apparently be restrained and as unsuccessful as O. J. Simpson has been in finding "the real killer(s)" of his late ex-wife Nicole and of Mr. Goldman despite a truly comprehensive search of America's golf courses which he apparently believes are the most likely hiding places.
Finally, the 14th Amendment DOES specifically requires that: "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 the equal protection of the laws."
This is not nuclear physics or rocket science. The due process clause imposes upon the respective stategovs the obligation to apply in state matters the federal 5th Amendment right to due process. Equal protection was more than the constitution had imposed even on the feds themselves but try to tell SCOTUS in the feral heat of its zeal to replace the entire constitution (as deemed necessary or merely desirable in what passes for liberal minds) with the 14th Amendment.
I continue to note that I cite the specific language of the constitution as libertoonians tend (understandably) not to do.
You should reference paleos like paleoPaulie, Weepy Walter Jones, UpChuck Hegel and their three or four followers as RINOs since defense of our nation would be a necessary quality of Republicans who are Republicans.
Cowering in the corner, hoping that the baaaaaad men will just go away, sharing a foreign policy with Noam Chomsky and George McGovern, failing to protect the unborn persons (5th and 14th Amendments) either via state or federal law and thinking that the GOP exists simply and only to cram failed free trade ideologies down the throats of Americans to enrich Bangladeshis at the expense of ordinary Americans on the one hand and the major investor class as opposed to ordinary citizens would qualify as RINOism. If you don't believe me, wait until next year's primaries and delegate selection which will take the scalps of paleoPaulie and Rudeeeee likewise, albeit for differing reasons.
So, in your life offline, have you researched the constitution and found the specific text(s) to back up your curious notions???? Take as much time as you need.
And if you keep reading his works, and those of the other Founders, they didn't want the State infringing any of those Rights either. Hence statements from them like:
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals … It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin to the New York Historical Society, October 7, 1789
The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. William Rawle 1829.
"It had become an universal and almost uncontroverted position in the several States, that the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion; of the second, trial by jury, habeas corpus laws, free presses." --Thomas Jefferson to Noah Webster, 1790. ME 8:112
The United States guarantee to every state in the union a separate republican form of government. From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason; or should a foreign power seduce or over-awe the people of any state, so as to cause them to vest in the families of any ambitious citizens or foreigners the powers of hereditary governors, whether as Kings or Nobles, that such investment of powers would be void in itself, and every person attempting to execute them would also be guilty of treason. Tench Coxe. 1787. An Examination of the Constitution of the United States of America
The only way the Federalists got their Constitution at all was because of the Primacy of the Bill of Rights as "Supreme law of the Land". This isn't about the Feds dictating to the States or vice versa. This is We the People telling them both "hands off our we'll kill you."
"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual." --Thomas Jefferson
"A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, (or any other name indicating his true character,) or by millions, calling themselves a government." — Lysander Spooner, No Treason: The Constitution of No Authority (1867)
“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.” - Samuel Adams, The Rights of The Colonists, November 20, 1772
"What is true of every member of the society, individually, is true of them all collectively; since the rights of the whole can be no more than the sum of the rights of the individuals." --Thomas Jefferson to James Madison, 1789. ME 7:455, Papers 15:393
The United States guarantee to every state in the union a separate republican form of government. From thence it follows, that any man or body of men, however rich or powerful, who shall make an alteration in the form of government of any state, whereby the powers thereof shall be attempted to be taken out of the hands of the people at large, will stand guilty of high treason; or should a foreign power seduce or over-awe the people of any state, so as to cause them to vest in the families of any ambitious citizens or foreigners the powers of hereditary governors, whether as Kings or Nobles, that such investment of powers would be void in itself, and every person attempting to execute them would also be guilty of treason. Tench Coxe. 1787. An Examination of the Constitution of the United States of America
"Were [a right] to be refused, or to be so shackled by regulations, not necessary for... peace and safety... as to render its use impracticable,... it would then be an injury, of which we should be entitled to demand redress." --Thomas Jefferson: Report on Navigation of the Mississippi, 1792. ME 3:178
"Laws abridging the natural right of the citizen should be restrained by rigorous constructions within their narrowest limits." --Thomas Jefferson to Isaac McPherson, 1813. ME 13:327
The First 10 Amendments to the Constitution as Ratified by the States
December 15, 1791
Preamble
Congress of the United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
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
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.:
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Art 4. Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Art 6 Para 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
"The whole of the Bill [of Rights] is a declaration of the right of the people at large or considered as individuals … It establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of." Albert Gallatin to the New York Historical Society, October 7, 1789
I recommend you go back and re-read Elliot's Debates in the First Congress, Rawle's A View of the Constitution of the United States of America, and Jo Story's Commentaries on the Constitution. Then get back to me...
The text of the constitution and its validly ratified amendments and not the editorial views of people (as disinguished as Jefferson or as moonbat as Lysander Spooner) is what we are governed by or at least ought to be. If you disagree, good luck to you, Lysander Spooner and paleoPaulie but don’t get yourself too too invested in a presidential inauguration for paleoPaulie.
Never mind. You don't want to be bothered with silly little things like "facts" or "truth". You appear to only be here to cast aspersions on your betters...
I identify with my Irish ancestry. The fellow in Braveheart who came from Ireland to assist and defend William Wallace pointed out that the Irish talk directly to God because, otherwise, how would they find worthy conversation. My ancestors were ordinary folk (excpet that many were Irish) but my wife's ancestors may well have owned your ancestors.
Speaking the truth as to the libertoonian paleomoonbats here is certainly not dissing my betters, if any there be. Modestly speaking, of course.
Which means you are spouting utter bullshit. The "words themselves" say shall not be infringed is the supreme law of the land the laws of any state to the contrary notwithstanding.
You are apparently just another moonbat RINO cheerleader.
Certainly ethically and ideologically we need men and women like Paul but not Paul himself. We would lose 50 states. It will be interesting tonight to see how Hume and Wallace ask questions to all 10 of these guys.
You are fully incoherent.
Funny how not agreeing with what I’ve posted suddenly translates into incoherency.
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