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To: Irontank
But, the Bill of Rights only applied to the federal government.

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.

61 posted on 05/14/2007 7:26:49 AM PDT by Dead Corpse (What would a free man do?)
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To: Dead Corpse
The Anti-Federalists, for whose benefit Madison and the Federalists, agreed to add a Bill of Rights, were fierce defenders of the sovereignty of their state governments. In the context of the time and in the face of the feared new federal government, they saw the rights of their states and the citizens of the states as inseparable. As John Taylor wrote "states rights are the rights of the people"

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

64 posted on 05/14/2007 9:15:20 AM PDT by Irontank (Ron Paul for President)
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