Posted on 07/09/2004 9:19:09 AM PDT by tpaine
On top of everything else, Bork is a rank hypocrite. This argument is PRECISELY the sort of policy analysis that he (correctly) describes elsewhere as the proper responsibility of elected legislators, not judges.
No, such a definition would be a clear infringement, repugnant, and void. Neither States nor the people would be bound by it.
It's already been done by a lower federal court, tpaine.
So what paulsen? Courts throughout the US ignore our Constitution every day. -- Doesn't make the practice right.
Individuals used to be able to say "God" at commencement.
Doesn't matter whether it's great. The 14th requires it, for better or worse. It ain't up to you or me or the Court to pick and choose which parts of the Constitution we're going to ignore and which parts we're going to enforce. Sheez.
And they still can.
Neither do I. But that's not what we're talking about, is it? Again, off you go on some tangent.
We're talking about the way that it's interpreted, now aren't we. Not the way it's written, correct? Why is it that I constantly have to waste half a post just to get you back on topic.
It looks like you were complaining about the way it is written, specifically Article III:
And as Justice Thomas well knows, he and four unelected and unaccountable others on the USSC can frustrate and overrule 535 elected and accountable congressional representatives -- so I ask again, who shall we fear more?
They are both threats if they don't follow the Constitution. An example would be Congress when they violate the Second Amendment and the USSC when they allow them to get away with it. It's a stupid question, IMO, but I've come to expect it.
Clarence Thomas and his buddies on the USSC have done far more damage to this country than Congress. And they're unelected and unaccountable. There's the danger.
The Constitution says they are to be appointed, and set up checks in the form of impeachment and the amendment process.
It appears that you indeed do have a problem with the way the Constitution is written.
So what happens if those State laws are voided? Then there are no laws allowing political advertising 30 days before an election, yes? It would therefore be legal under State law, yes?
Does Vermont state law say, "flash suppressors are legal" or is Vermont state law silent? If state law is silent, then how can there be a conflict? If there is a conflict, then yes, Vermont is in violation of the Supremacy clause.
Same thing as above. If the State law allowing flash suppressors is voided, then flash suppressors are still legal, yes?
If there is no State law against it, it's not illegal under State law.
Samuel Francis begs to differ in his article, Judicial Tyranny. He says that, "The Framers of the 14th Amendment had no intention of initiating a revolution in constitutional law or of bringing the states under the constraints of the Bill of Rights. The whole Incorporation Doctrine is simply an invention of judges and justices eager to impose their own ideology, political beliefs, and personal preferences on the nation as a whole, and they have had to rely on the courts to do so because the American people have never supported or been willing to enact the measures the courts have sought to impose through their revolution."
So there! Sheesh!
"One of the arguments of the Anti-Federalists during the ratification debates was that the new nation did not arm the militias, an odd argument since neither did the U.S. under the Articles."
You hardly do the antifederalists justice with this! I know you can't treat every aspect of the debate in your article- and I don't think any thing on your page is superfluous ... still a few more words would be in order.
The Constitution would give the new federal government new powers over the state militias and there was much concern and debate ( and hyperbole too) over just what was the extent of these new powers.
From the Virginia Ratifying Convention on June 14 and June 16 1788 ( an excellent summary of the Second and Tenth Amendments rationales):
Mason: "Mr. Chairman, unless there be some restrictions on the power of calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions. It is extremely unsafe, without some alterations. It would be to use the militia to a very bad purpose, if any disturbance happened in New Hampshire, to call them from Georgia. This would harass the people so much that they would agree to abolish the use of the militia, and establish a standing army. I conceive the general government ought to have power over the militia, but it ought to have some bounds... This power is necessary; but we ought to guard against danger. If ever they attempt to harass and abuse the militia, they may abolish them, and raise a standing army in their stead. There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a government, where there is a standing army.
The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them, &c. Here is a line of division drawn between them — the state and general governments. The power over the militia is divided between them. The national government has an exclusive right to provide for arming, organizing, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States.
The state governments have the power of appointing the officers, and of training the militia, according to the discipline prescribed by Congress, if they should think proper to prescribe any. Should the national government wish to render the militia useless, they may neglect them, and let them perish, in order to have a pretence of establishing a standing army. "
Henry: "Your men who go to Congress are not restrained by a bill of rights. They are not restrained from inflicting unusual and severe punishments, though the bill of rights of Virginia forbids it. What will be the consequence? They may inflict the most cruel and ignominious punishments on the militia, and they will tell you that it is necessary for their discipline. "
Madison: "If inimical nations were to fall upon us when defenceless, what would be the consequence? Would it be wise to say, that we should have no defence? Give me leave to say, that the only possible way to provide against standing armies is to make them unnecessary. The way to do this is to organize and discipline our militia, so as to render them capable of defending the country against external invasions and internal insurrections. But it is urged that abuses may happen. How is it possible to answer objections against the possibility of abuses? It must strike every logical reasoner, that these cannot be entirely provided against. I really thought that the objection in the militia was at an end. Was there ever a constitution, in which if authority was vested, it must not have been executed by force, if resisted? "
Corbin: "He thought that, if there was a constructive implied power left in the states, yet, as the line was not clearly marked between the two governments, it would create differences. He complained of the uncertainty of the expression, and wished it to be so clearly expressed that the people might see where the states could interfere. As the exclusive power of arming, organizing, &c., was given to Congress, they might entirely neglect them; or they might be armed in one part of the Union, and totally neglected in another. " Marshall: "Gentlemen have said that the states cannot defend themselves without an application to Congress, because Congress can interpose! Does not every man feel a refutation of the argument in his own breast? I will show that there could not be a combination, between those who formed the Constitution, to take away this power. All the restraints intended to be laid on the state governments (besides where an exclusive power is expressly given to Congress) are contained in the 10th section of the 1st article. This power is not included in the restrictions in that section... If Congress neglect our militia, we can arm them ourselves. Cannot Virginia import arms? Cannot she put them into the hands of her militia-men?
He then concluded by observing, that the power of governing the militia was not vested in the states by implication, because, being possessed of it antecedent to the adoption of the government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been. And it could not be said that the states derived any powers from that system, but retained them, though not acknowledged in any part of it. "
"Mr. HENRY still retained his opinion, that the states had no right to call forth the militia to suppress insurrections, &c. But the right interpretation (and such as the nations of the earth had put upon the concession of power) was that, when power was given, it was given exclusively... Is it fair to say that you give the power of arming the militia, and at the same time to say you reserve it? This great national government ought not to be left in this condition. If it be, it will terminate in the destruction of our liberties. "
Madison: "The 4th section of the 4th article is perfectly consistent with the exercise of the power by the states. The words are, "The United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legislature, or of the executive, (when the legislature cannot be convened,) against domestic violence." The word invasion here, after power had been given in the former clause to repel invasions, may be thought tautologous, but it has a different meaning from the other. This clause speaks of a particular state. It means that it shall be protected from invasion by other states."
Mason: "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and {426} rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. "
Debate over the anti-KKK bill naturally required exposition of Section 1 of the Fourteenth Amendment, and none was better qualified to explain that section than its draftsman, Rep. John A. Bingham (R., Ohio):Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States. Those eight amendments are as follows:
[text of Amendments I-VIII]
These eight articles I have shown never were limitations upon the power of the States, until made so by the Fourteenth Amendment.
Bingham wrote:
" -- permit me to say that the privileges and immunities of citizens of a State, are chiefly defined in the first eight amendments to the constitution of the United States."
" --- These eight articles I have shown never were limitations upon the power of the States, --- "
______________________________________
If, [big if] the first eight Amendments "never were limitations upon the power of the States," --
--- Then why are "the privileges and immunities of citizens of a State" -- "chiefly defined in the first eight amendments to the constitution of the United States."?
Bingham obviously had the opinion that he was correcting a flaw in the Constitution pointed out by Justice Marshall in his 'Barron' decision.
There was no flaw.
The 'Barron' opinion was wrong, as it completely ignored the supremacy clause.
Barron was an attempt by Marshall to avert civil war, imo, -- by giving in to the 'States Rights' faction of the day. Naturally, it didn't work.
Appeasement on principles never does.
UNITED STATES OF AMERICA v. TIMOTHY JOE EMERSON (decided April 7, 1999)
CONCLUSION
Because 18 U.S.C. § 922(g)(8) violates the Second and Fifth Amendments to the United States Constitution, the Court GRANTS Emerson's Motion to Dismiss the Indictment. A judgment shall be entered in conformity with this opinion.
-- www.law.umkc.edu/faculty/projects/ftrials/conlaw/emerson.html
What does the one have to do with the other? The former refers to the state of Constitutional law prior to the ratification of the Fourteenth Amendment; the latter is an exposition of the original intent of the drafters of the Fourteenth Amendment.
Bingham obviously had the opinion that he was correcting a flaw in the Constitution pointed out by Justice Marshall in his 'Barron' decision.
That does not follow. He was declaring that the original intent of the Fourteenth Amendment was to supercede Barron. By your reasoning, the folks who are trying to pass the "Marrig Clubhouse -- No Homos Allowd" amendment are conceding that the Massachusettes Supreme Court has correctly identified a flaw in the Constitution (a claim I'm sure they would indignantly deny).
Thats nuts. Who are these leftists?
Nope, sorry, you don't get to weasel out of addressing the Amendment's original intent.
You realize that you're making a strong case for the second amendment being added to preserve the state militia by the citizenry arming themselves.
And he needs a reading lesson -- I thought the first amendment CLEARLY said, "Congress shall make no law ..."
What a doofus.
I'm sure this will come as a shocking surprise to everybody here.
And he needs a reading lesson
Today's reading lesson:
a·mend·ment (&-m&nt-m&nt) -- a: the process of amending by parliamentary or constitutional procedure b: an alteration proposed or effected by this process
The 14th amendment says, in part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States". Here's the question: What are the privileges or immunities of citizens of the United States?
Certainly not the rights mentioned in the BOR -- the BOR doesn't grant rights, it protects them. Plus the 14th doesn't even mention "rights". So, what are they?
"When the Fourteenth Amendment's Privileges and Immunities Clause is invoked, it prohibits states from denying their citizens the privileges and immunities of national citizenship, such as the right to petition Congress for redress of grievances, the right to vote for federal officers, the right to enter public lands, the right to interstate travel, and any other right flowing from the distinct relation of a citizen to the United States Government."
-- faculty.lls.edu/~manheimk/cl2/incorp1x.htm
That's it, amigo. That's all that's protected.
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