Posted on 07/11/2006 4:03:24 PM PDT by 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 --
Anyone know anything about the: "-- Alabama Citizens for Constitutional Reform --"?
Constitution's getting to be a hard sell bump.
A number of states HAD official religions when the Constitution was ratified, and the First Amendment was not understood do interfere with that. All such state religions had already fallen by the wayside prior to the passage of the Fourteenth Amendment, but their earlier existence is nonetheless worth noting.
"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."
Why stop at the 1st amendment? The right of the people to keep and bear arms should also be "incorporated."
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, ...
How ironic. The 1st amendment was intended to protect State establishments from Federal infringement. Many States retained their religious establishments after the adoption of the Bill of Rights well into the 19th century. The above incorporation interpretation must be in error in some way.
Problem is, the 14th was basically passed at gunpoint. What do we do about that?
I would say that this part of the article tells you were this group is coming from.
They are coming from the left, specifically from the Teachers Unions.
Constitution's getting to be a hard sell
Schools have been forced to fall down on the job and todays parents don't know enough to teach it ...
Hard sell NO !
It just needs to be KNOWN first !...
The UN Declaration of Human Rights (Eleanor Roosevelt) lists education along with thirty or so other human rights that any state should provide. The Declaration doesn't provide suggestions for funding with anywhere near that kind of detail.
Why stop at the 1st amendment? The right of the people to keep and bear arms should also be "incorporated."
The 2nd doesn't really need 'incorporation' by the USSC.
None of the amendments did. -- They all apply as being an integral part of our supreme Law of the Land. -- According to:
Article VI, Clause 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.
How ironic. The 1st amendment was intended to protect State establishments from Federal infringement. Many States retained their religious establishments after the adoption of the Bill of Rights well into the 19th century. The above incorporation interpretation must be in error in some way.
State sponsored religions were sort of 'grandfathered in' for the original States. -- But look at the trouble Utah had trying to enter the Union while 'respecting' the Mormon religion.
Took Utah 40 years to gain statehood.
Yep, and our freedom was basically won at gunpoint, -- twice.
Why do we need to do anything about that?
I think we can agree that no one should have the power to deny anyone an education, -- nor should anyone be forced to pay for one.
The states agreed that any thing in their constitutions or laws, including legal decisions that were contrary to the the supreme law (Bill of Rights/U.S. Constitution) could not be used to prosecute Citizens. That ratification was necessary in order for the states to qualify to join the Union. (Article VI, para 2).
With that in mind, let me refer to this clause: '. . . nor shall any state deprive any person of life . . ."
To deny the right of a Citizen to defend their life is to deprive a person of life. Gun control and gun bans are a deprivation of rights and are repugnant not only to inalienable rights, but are repugnant to the U.S. Constitution as well.
Sorry, I missed answering your post in turn. -- See my comments on #9 about existing State sponsored religions being 'grandfathered in'.
Congress was specifically told to 'make no law' on that particular issue; -- which lead to the states rights crowd erroneously insisting that States did not have to honor the bill of rights.
Welladay, none of the federal BOR could possible apply to the states until the 14th. The 14th conveyed citizenship at the federal level whereas before it was conveyed at the state level.
That expanded the central government's national power tremendously, and, by peripheral effect, expanded the federal powers. I stopped reading there.
We're still discovering the effects of that one change, that is to say the courts are.
Well put. -- Its amazing how many otherwise rock bottom conservatives on FR will defend a 'States rights' position on gun control however.
-- It seems they hate the 14th so much that they lose sight of the fact that it may one of our best defense's against the gun grabbers.
I've never understood that argument, -- as someone 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?
You will need to expand on this statement before I can agree or disagree.
I can agree that no one who can pay for their education should be denied that education.
I can agree that no one should be forced to pay for someone else’s education.
What exactly you meant I am not sure.
At the risk of having to respond to you for the next three or four days, I will say that I do not agree with you.
I must have missed the series where he discusses the 9th and 10th Amendments.
5.56mm
You will need to expand on this statement before I can agree or disagree.
I can agree that no one who can pay for their education should be denied that education.
I can agree that no one should be forced to pay for someone else’s education.
What exactly you meant I am not sure.
Fascinating perspective, however, this "grandfathering" provision is nowhere to be found in the Constitution or B.O.R. Instead the 1st Amendment clearly protects the people or states from a federal establishment of "religion," which is properly understood to mean a christian denomination. The founders were christians overwhelmingly, but not all the same denomination. Thus general christian observances shared by all denoms was "tolerated"--Bible reading/training, prayer, posting of 10 commandments, ... (I'm sure some will point out exceptions, but these are exceptions.) These didn't become "unconstitutional" until the 1950's and following. Curious.
I admit that I do not know much about the history of Utah statehood.
Weird. -- Whats to disagree about?
i disagree that the taxpayers have an obligation to educate everyone, obligation being the operative word.
That this has been so completely obfuscated by trial lawyers, and their sychophants, to mean that States can over-ride Federal Law (within the Feds power limits) or Constitutional protections for Rights is part and parcel why this country is no longer a Republic and our Rights almost completely gone.
And yes... my Rights ARE being infringed. There are things I cannot do with my property even if those things put no one else at risk. I cannot say certain things without being charged with "incitement ot riot" or a hate crime. I cannot arm myself and walk about free of fear that some government enforcer will try and disarm me because I failed to PROVE I am not a criminal first and pay their bribe money/licensing fee.
Anyone who mistakes themselves for free man in this country hasn't been paying attention.
Thus endeth the rant...
Nice catch. Well said.
No. Imho, if you discuss the 14th Amendment, there should be some historical context. Not being familiar with the "Series," I would assume (bad word) that the 9th & 10th Amendments have already been discussed, and that I missed it.
5.56mm
Granted, there's a lot of hype saying that all of those things are now "unconstitutional", but none of them really are, unless they actually deprive someone else of life, liberty, or property.
bump
So Art 6 Para 2 was just window dressing?
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.
Sounds like Fed Law took precedence over State law right from the Start. The "further declaratory and restrictive" clauses were added later does not mean they also do not apply to the States under the Supremacy Clause. No matter what some judge decided to twist it to say.
Debates of the First congress are quit clear on the scope of the Constitution and the protections for those Rights.
"The Establishment Clause does not purport to protect individual rights."
"Quite simply, the Establishment Clause is best understood as a federalism provision--it protects state establishments from federal interference but does not protect any individual right."
"...Even assuming that the Establishment Clause precludes the Federal Government from establishing a national religion, it does not follow that the Clause created or protects any individual right. ...Moreover, incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect--state establishments of religion. ...Nevertheless, the potential right against federal establishments is the only candidate for incorporation." - Justice Thomas, Elk Grove v Newdow
Read my comment.. I said the same thing.
To whit, our favorite whipping boy, gun control. Any and all gun bans are illegal. The "F" portion of the BATFE is entirely ILLEGAL. As are the California bans, NY bans, ect... While it could be argued that the Militia Clause could be used to "regulate" the wearing of arms, this cannot be used to contrue a denial of RKBA completely. As in Texas. You cannot carry pistols openly and CCW is strictly "regulated". This puts Texas at odds with the "shall not be infringed" and well outside any reasonable "regulation" of the militia. The "militia", you and I, were never to be "debarred the use of arms".
Best bet would be to get rid of all Federal gun laws and revamp all State laws on the Alaska model.
It's no 'rant'.
Too bad so few here at FR can agree. -- As you say, sharp lawyers have so 'completely obfuscated' these basic constitutional issues that everybody runs about arguing petty details, -- losing sight of principles.
The 14th Amendment does not equal freedom, tpaine. Your argument is uncoordinated.
"The 2nd doesn't really need 'incorporation' by the USSC.
None of the amendments did. -- They all apply as being an integral part of our supreme Law of the Land. -- According to:
Article VI, Clause 2"
Very good, tpaine. I have taught you something.
The supremacy clause makes "incorporation" doctrine superfluous at best. The judges in every state are bound by the Bill of Rights.
"none of the federal BOR could possible apply to the states until the 14th"
WT, what are the "federal BOR"? Laws in the Constitution belong to neither Federal nor State, but are superior to both.
"This is basic Constitution 101"
It's also Federalist 39, one of the best and most instructive about what this country is.
Yep, and our freedom was basically won at gunpoint, -- twice.
Why do we need to do anything about that?
H.Akston inanely wrote:
The 14th Amendment does not equal freedom, tpaine. Your argument is uncoordinated.
The 14th helps protect our freedoms, hugh.
"Uncoordinated"? What is that supposed to mean?
Dream on hugh. -- And teach yourself a little humility. A swelled head is a terrible thing to inflict on your fellow FReepers.
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.
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.
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.
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.
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. ;<
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."
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.
'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.
You might find it interesting to see how the upside-down position was arrived at:
http://www.freerepublic.com/forum/a38ae1fc86628.htm
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