Posted on 02/25/2003 8:51:49 AM PST by Ohioan
If you want to cut to the chase, you might study Article I, Sections 8, 9 and 10. Section 8 gives Congress its basic functional powers, Section 9 provides the original limitations on those powers, and Section 10 provides some agreed limitations on the powers of the States. You will note, if you are honest, that there are parts of Section 10, which would be completely redundant, if basic rights were held to apply to all in the manner that you suggest. Your theories simply have no basis in the document you claim to respect.
Then you might go to Article IV, which deals with the protection of the citizen of one State, in conflict of law situations, with respect to other States, etc..
What the framers intended, they spelled out. They did not rely on your intuitive notions to make their points.
William Flax
No one here has ever claimed it was. The BOR's is not a 'cultural norm'. Inalienable rights apply to all citizens of the USA.The Fourteenth Amendment has been interpreted to mean that the "Congress shall make no law.." provisions of the Bill of Rights cannot be violated by state legislatures either. For that reason alone it deserves re-affirmation, and if Ohio never ratified it, we should. If nothing else it may end some of the whining.
-Eric
We are talking about a written Constitution, and what it means, not some abstraction in your head. But read the original document:
Constitution Of The United States.
There is no need for me to retype part of it for you. Read it in context!
William Flax Return Of The Gods Web Site
In what respect do you believe the Ohio Bill of Rights fails to protect Ohioans from the Legislature, to the same extent that the Federal Bill of Rights protects us from the actions of Congress?
What the 14th Amendment, however, has wrought in Ohio has been a veritable disaster for our rights to self-Government. These are only some of the "benefits":
1. It was interpreted to take away the Ohio Constitutional provision that every County have at least one Representative in the State Legislature. As a result, some of our rural Counties are only represented by representatives from outside the County--and their votes may be so diluted, that as a practical matter, their county may never have a realistic voice in Columbus.
2. School busing and school district lines contrived for social experiments, have been ordered by Federal Courts.
3. Abortion on demand has been instituted, after the invalidation of our anti-abortion laws.
4. The Criminal Justice system has been made vastly more expensive, as local Police procedures, Court convictions, etc., have all come under added layers of Federal scrutiny, appeals, etc.. If you want to protect the rights of the accused--as do I, who represent people accused of violating the law, as a regular part of my practice--the logical remedy is in our own Legislature, in the selection of our own Judges, etc.. We do not need the present confusion of remedial jurisdiction, nor the demeaning Federal involvement.
5. The fact that residence for voting has been reduced to almost no duration is another reflection of the impact of the 14th Amendment. Don't you think it might be reasonable for a State--and the communities within a State--to require some time to become familiar with the issues and personalities in a community, before having a say in their future?
6. It is also the 14th Amendment, which the ACLU has used to get prayer banned from schools; to have the Ten Commandments taken down from public places, etc.. (Incidentally, while most people realize that the Commandments had a religious origin, the last six deal with secular, not theological issues, and are the underpinning for centuries of development in our civil and criminal laws.) Don't you think that an Ohio town ought to have the right to determine for themselves whether to display or not to display such cultural materials? But note, whether you think they should or not, isn't the issue one which Ohio ought to be able to determine, without Federal intervention?
William Flax Return Of The Gods Web Site
States have recourse in the courts, or: ------ Civil disobedience works, especially on a statewide scale. The feds can't jail a whole state for refusing to play federal 'rules' games.Ohio has a pretty good record when it comes to ignoring federal diktats, ignoring the blackmail regarding motorcycle helmets and (so far) BAC limits. Not quite to the level of the late gubernatorial candidate Tom Van Meter, swearing that if he were elected Ohio wouldn't pay a dime for Cleveland busing and the appalling Judge Battisti could send federal marshalls after him if he didn't like it. But better than most states.
The thing about the Fourteenth Amendment applying the Bill of Rights to the states is that it does not grant government new rights, but imposes restrictions upon it. That is pretty automatically a good thing. Yes, liberals have abused the Bill of Rights, but the solution is to not elect liberals, not aborgate the BOR or excuse the states from it.
-Eric
The Fourteenth Amendment has been interpreted to mean that the "Congress shall make no law.." provisions of the Bill of Rights cannot be violated by state legislatures either. For that reason alone it deserves re-affirmation, and if Ohio never ratified it, we should. If nothing else it may end some of the whining.That's not really the point. The Ohio BOR is fine as it stands, but it can be changed by a simple referendum. Also, there are other states to consider. For example, if the First Amendment did not apply then a state like Alabama could conceivably establish Christianity and fine those who do not attend church on Sunday. Non-residents of the state might have these laws imposed. The BOR establishes a general minumum level of liberty throughout the nation.In what respect do you believe the Ohio Bill of Rights fails to protect Ohioans from the Legislature, to the same extent that the Federal Bill of Rights protects us from the actions of Congress?
What the 14th Amendment, however, has wrought in Ohio has been a veritable disaster for our rights to self-Government. These are only some of the "benefits":Certainly the State Senate could be revised to represent by county, if the state chose to do so. After all, that's how the US Senate is constructed.1. It was interpreted to take away the Ohio Constitutional provision that every County have at least one representative in the State Legislature. As a result, some of our rural Counties are only represented by representatives from outside the County--and their votes may be so diluted, that as a practical matter, their county may never have a realistic voice in Columbus.
In any case, I don't think I like that idea. Morgan County has a population of 14,191. Vinton County has 13,150. Wyandot County has 22,773. Adams County has 27,566. With 99 Ohio House seats, that comes to nearly 115,000 people per seat. Why should these counties, with less population than my medium sized Cleveland suburb, have extra representation? The fact is that 14 "urban" counties alone contain 58% of the population of Ohio.
2. School busing and school district lines contrived for social experiments, have been ordered by Federal Courts.Busing in Cleveland was the result of a rogue federal judge. Where were district lines tampered with?
3. Abortion on demand has been instituted, after the invalidation of our anti-abortion laws.Abortion should indeed be a legislative matter.
4. The Criminal Justice system has been made vastly more expensive, as local Police procedures, Court convictions, etc., have all come under added layers of Federal scrutiny, appeals, etc.. If you want to protect the rights of the accused--as do I, who represent people accused of violating the law, as a regular part of my practice--the logical remedy is in our own Legislature, in the selection of our own Judges, etc.. We do not need the present confusion of remedial jurisdiction, nor the demeaning Federal involvement.Limitations on government are a good thing. Certainly that extra possibility of enforcement of the Bill of Rights is an extra incentive for good behavior on the part of LEOs and local judges. If you've ever had to represent an unpopular client or cause, the presence of appointed federal judges is at least a check on the demagogic instincts of judges who must stand for election, and even prosecutors of similar bent. They've had problems with such in Medina County. In a worst case scenario, one can go federal, where principle is more likely to trump politics.
Yes, federal judges overstep their bounds too. Here, the solution is not to remove limitations on government, it is to elect officials who will not appoint activist judges.
5. The fact that residence for voting has been reduced to almost no duration is another reflection of the impact of the 14th Amendment. Don't you think it might be reasonable for a State--and the communities within a State--to require some time to become familiar with the issues and personalities in a community, before having a say in their future?People who have lived in a state for years aren't always familiar, so this is largely a non issue. But look at it this way: who has more stake in a state, someone who just moved there or someone who has lived there ten years but is about to move.
6. It is also the 14th Amendment, which the ACLU has used to get prayer banned from schools; to have the Ten Commandments taken down from public places, etc.. (Incidentally, while most people realize that the Commandments had a religious origin, the last six deal with secular, not theological issues, and are the underpinning for centuries of development in our civil and criminal laws.) Don't you think that an Ohio town ought to have the right to determine for themselves whether to display or not to display such cultural materials? But note, whether you think they should or not, isn't the issue one which Ohio ought to be able to determine, without Federal intervention?The principles involved in those last six predate the Commandments and certainly can be taught in a secular manner. I'm of the opinion that those who wish government to promote all ten are mainly interested in promoting the first four.
As for prayer in the schools, it's better to go to Texas for an example of how federal limitations on government can be beneficial. The plaintiffs in Santa Fe Independent School District v. Doe, aka the "football game prayer case", were objecting to the school's practice of having an election regarding which faith would get a place on the agenda of this government sponsored and run event. This clearly violated the Texas Constitution's ban on religious preference by government, a ban more explicit than that found in the US Constitution. However, the odds are good that a state judge that ruled so would be quickly de-elected.
The federal judiciary has repeatedly ruled that such preference violates the Establishment Clause. Since federal judges are more immune from the whims of the electorate, the plaintiffs went federal. Not only did they win their case, but a disturbing attempt by the school district to ferret out their identities was quashed by outraged federal judges who threatened dire penalties.
The Bill of Rights was meant to protect the rights of individuals first, and states second. Sometimes it is the whims or prejudices of the majority which threaten individual rights, and must be stopped by the forces of liberty.
-Eric
Your wanting to consider other States gets down to the whole spiteful point. Why should you give the Federal Government--both Courts and Congress, which has power under it in Section 5, also--the right to veto State action. As for non-residents of any State being imposed upon, the residents of other States cannot, under Article IV of the Federal Constitution, be imposed on in any way greater than the residents. But the whole nature of our Federal compact was to allow the States their local customs and cultures.
You also make a logical error. The Bill of Rights was not intended to establish liberty. It was strictly intended to safeguard the liberty which people already had from Congress. This distinction in the thrust is vital to understanding the thinking of the Founding Fathers, and the intent of the Constitution.
Certainly the State Senate could be revised to represent by county, if the state chose to do so. After all, that's how the US Senate is constructed.
You are simply wrong about this. While Ohio had its check on population in the State House, many States had it in their Senates. The Warren Court, in its reapportionment decisions in the 1960s, based upon the 14th Amendment, basically adopted the same "one man/one vote" rationale, which our foreign policy was also trying to apply to the Third World. You go on to offer the same rationalization, yourself, in discussing the population of the rural counties.
But the point is three fold. First, it should not be the business of any branch of the Federal Government to tell a State that it cannot preserve its Republican institutions by imposing checks on Democracy. That was after all was Madison's principal justification for promoting a Federal Government--a check on Democracy.
Second, having a representative from each County, is the only way that many people in rural Ohio are going to have an easily reachable representative. In Cuyahoga County, you have a whole raft of them within easy driving distance--perhaps walking distance--so you can easily become personally acquainted with the man who is supposed to represent you. That is not so if you are in a County bigger than Cuyahoga, and your representative is two Counties over. He and you will not be operating from the same perceptions of what your community is all about.
Third, there may be greater numbers of votes in urban communities, but there is no inherent virtue--rather quite the contrary, although the morals are not the point. But giving unchecked greater weight to the more populous communities, can easily lead to a situation--has lead to situations all over America--where urban values are imposed on rural America. (Why do you think that States like Maryland, Massachusetts and New York, have such restrictive gun laws, for example? Do you think that the citizens in the rural areas--many on land that has been in their family for generations, back into an earlier era, sought such restrictive legislation?)
The fact is that failing to check the voting power of urban communities--usually, in fact, with far less rooted inhabitants--has proven a disaster for individual rights in America.
You next blame Cleveland's school problems on a rogue Federal Judge! There have been such "rogue" Judges, all over America. In Dayton, it was another Federal Judge. Cincinnati has had to wrestle with what it painted itself into in a "Consent Decree," which has dominated our School Board's decisions on attendance districts, magnet schools, teacher assignments, etc., for over a generation. The point is that local school issues should not be Federalized. That benefits no one.
You say that Abortion should be a Legislative matter. But it isn't because the 14th Amendment put those Federal Judges, with a mind to do so, in a position to impose the NOW agnda on the people of every State in the American Union.
I will try to come back to your other points, later. I have to attend to some other business now, and would not want this to become unreadably long, in any event. But I will return to them.
William Flax Return Of The Gods Web Site
Hope that you make it home, soon!
Bill Flax
You said with respect to Federal intervention in matters involved in local law enforcement:
Limitations on government are a good thing. Certainly that extra possibility of enforcement of the Bill of Rights is an extra incentive for good behavior on the part of LEOs and local judges. If you've ever had to represent an unpopular client or cause, the presence of appointed federal judges is at least a check on the demagogic instincts of judges who must stand for election, and even prosecutors of similar bent. They've had problems with such in Medina County. In a worst case scenario, one can go federal, where principle is more likely to trump politics. Yes, federal judges overstep their bounds too. Here, the solution is not to remove limitations on government, it is to elect officials who will not appoint activist judges.
Well, you have a lot of thoughts there. But, while I acknowledge the appeal of having an additional forum, if you feel you have not had fair treatment in one, that does not make the situation consistent with the symmetry intended in our Federal system. The justification for extending Governmental power in any of its manifestations, is always the accomplishment of some good or noble purpose. The Communists and Nazis both claimed nobility of purpose, and claimed many benefits for their centralization of power.
While there are indeed instances when the Federal relief afforded by the post 14th Amendment situation, does indeed serve the ends of abstract justice, we pay a heavy price in an unbalancing of the intended division of power and responsibility, and in an undermining of the morale of local public servants, as well as in an enormous increase in the cost of dealing with crime. A far better solution would be some sort of local agency, which could investigate possible cases of injustice, and initiate post conviction procedures in our Ohio Appellate Courts, whenever there really did appear to be an abuse of reasonable discretion in the actions of local personnel, whether Police, Prosecutorial or Judicial.
On my attack on allowing people to vote almost immediately upon their location in the State:
People who have lived in a state for years aren't always familiar, so this is largely a non issue. But look at it this way: who has more stake in a state, someone who just moved there or someone who has lived there ten years but is about to move.
You make two points. Neither one is really an argument. The fact that not every native is really a qualified voter, has nothing to do with the issue. I am in favor of restricting the suffrage on more grounds than mere length of domicile. But that does not mean that length of domicile is not important for the establishment of State citizenship.
As for someone about to move out. That is not the issue either. And I hardly consider someone who has only been here ten years and about to move, the standard. The fact that Americans have become so mobile and rootless, that you would consider such a person's situation fairly typical, is rather sad. While I would allow an otherwise qualified person, the suffrage in far less than ten years; someone here for ten years would still have a lot to learn. Our States were certainly not understood as migratory work camps, but as the more or less permanent domiciles of rooted citizens. (Now I know that in the early days, an enormous percentage of those who settled in the west, followed Daniel Boone's trails into Kentucky, where they lived for a while, before moving on to their eventual settlements, but that was part of the settlement dynamic--not a permanent condition.)
But enough of these reflections. To cut to the chase, it is obvious that even your person who had lived here ten years, before moving on, would have a better comprehension of local situations, personalities and issues--unless he was an absolute moron--than the typical migrant here only two months.
You responded in regard to the ACLU's success in using the 14th Amendment in getting prayer and the Ten Commandments banned from public schools and public places:
The principles involved in those last six predate the Commandments and certainly can be taught in a secular manner. I'm of the opinion that those who wish government to promote all ten are mainly interested in promoting the first four.
I don't think that you can generalize on the motives for wanting to display the Ten Commandments in public places. In the era, immediately before the ACLU began their onslaught, after 1920, Conservative and Libertarian minded speakers were already fond of pointing out that our laws were getting too prolix. (Judging from some of the other things that you have just stated, I suspect that you are not entirely in disagreement with that idea.) The Ten Commandments were often cited as a guidepost, to how much you could really say with a very simple criminal code. But, in any event, the ACLU/14th Amendment position is in my estimation an absurd negation of the rights of Americans to local self-Government.
As for prayer in the schools, it's better to go to Texas for an example of how federal limitations on government can be beneficial. The plaintiffs in Santa Fe Independent School District v. Doe, aka the "football game prayer case", were objecting to the school's practice of having an election regarding which faith would get a place on the agenda of this government sponsored and run event. This clearly violated the Texas Constitution's ban on religious preference by government, a ban more explicit than that found in the US Constitution. However, the odds are good that a state judge that ruled so would be quickly de-elected.
If the Texas ban was in effect, it should have been an issue in the Texas Courts. But it is not for the Federal Judiciary to dictate how Texas Courts interpret Texas law. The States are not unruly children, who need an Agency, which they created, overseeing their daily management of their own affairs.
The federal judiciary has repeatedly ruled that such preference violates the Establishment Clause. Since federal judges are more immune from the whims of the electorate, the plaintiffs went federal. Not only did they win their case, but a disturbing attempt by the school district to ferret out their identities was quashed by outraged federal judges who threatened dire penalties.
I don't even understand what you are saying here. Why would anyone have to ferret out "their identities?" How could someone challenge a policy anonymously? (I am, of course, aware that the Roe, in Roe vs. Wade, was not a real name.) Why should they be able to? That smacks of a form of Star Chamber Justice, to say the least.
The Bill of Rights was meant to protect the rights of individuals first, and states second. Sometimes it is the whims or prejudices of the majority which threaten individual rights, and must be stopped by the forces of liberty.
The Bill of Rights was intended to protect the individuals and States both--the first nine the individuals, the tenth the States--from the new Federal Government. There were, however, rights for the individuals against the States built into Section 10 of Article I, and into Article IV of the Constitution. But those are not part of the Bill of Rights.
I could not agree with you more, however on your last statement. I would make only one correction, it is not "sometimes," it is usually--in contemporary times--the "whims or the majority" which threaten individual rights. But the Federal Courts were not set up to deal with such majority rule in the States.
On the other hand, the very concept of the 14th Amendment was to further majority rule--hence the broadening of citizenship in Section 1; hence the reduction of State Representation in Congress, in Section 2, if a State limits its male suffrage. It was also under the prevailing interpretations of the 14th Amendment, after Roosevelt, that individual rights were pushed aside to accommodate a view of what either was or--in the subjective view of activist "Liberal" Judges--should be made into a prevailing dogma for the American people.
William Flax Return Of The Gods Web Site
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