Well, yes. It's a slam dunk. Every state had very restrictive morals legislation that they enforced in 1783. There is no recorded instance of any founding father ever suggesting that the Constitution affected any of those laws in any way. Regulating morals was a power reserved to the States.
The Constitution specifies in the 10th that some powers are prohibited to States.
True. But read the language. Does it say that a Federal Court can just make up prohibitions on the states regardless whether the prohibitions are stated in the constitution? No. It say "prohibited by it [the Constitution] to the States." Well, the Constitution has plenty of prohibitions on the States that are quite explicit. The supremacy clause, the requirement that States have a Republican form of government, the right to bear arms, and the prohibition of eminent domain except for public use occur to me off the top of my head. The Framers were representatives of the States. Had anyone suggested at the Constitutional Convention that the 10th amendment was intended to let nine federal justices tell the states that they couldn't regulate prostitution or sodomy, it would not have passed.
Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
"Due Process" means that folks may be deprived of "life, liberty and property" as long as they get a fair hearing ("due process"). Read the language and think it through. There is no historic evidence that the Framers intended the due process clause in a substantive manner. It deal with "process", not results.
Frankly, the argument you make is as revisionist and as radical a remaking of the Constitution as the penumbras and emanations of Justice Douglas, who was a TERRIBLE judge. Both you and Justice Douglas would use a "living" constitution to impose your moral standards on the States and in the course of doing that, ignore the clear intent of the Framers.
If you want to win the "if it feels good do it" war, you need to win it in the State legislatures--not in federal court. At least if you care at all about what the Framers intended.
It didn't pass. In fact it wasn't even introduced.
The Constitutional Convention of 1787 passed to Congress and the states a document without any amendments. The first 10 amendments to the Constitution came after ratification when the anti-Federalists objected to certain things that they believed had been left out. Congress passed 11 of Madison's 12 amendment proposals to the states for ratification in 1789. Ten of those 11 got in immediately. In 1992, the 11th proposal got its 38th ratification vote and entered the Constitution as the 27th Amendment.
Well, yes. It's a slam dunk. Every state had very restrictive morals legislation that they enforced in 1783.
In 1787 those same States ratified a Constitution that limited their powers which by 1791 included the BOR's.
There is no recorded instance of any founding father ever suggesting that the Constitution affected any of those laws in any way.
Nonsense. State police powers was then [and still is], one of our most contended issues.
Regulating morals was a power reserved to the States.
Regulating criminal actions was a power reserved to the States, limited by due process in the writing and enforcement of constitutional laws.
The Constitution specifies in the 10th that some powers are prohibited to States.
True. But read the language. Does it say that a Federal Court can just make up prohibitions on the states regardless whether the prohibitions are stated in the constitution? No. It say "prohibited by it [the Constitution] to the States." Well, the Constitution has plenty of prohibitions on the States that are quite explicit. The supremacy clause, the requirement that States have a Republican form of government, the right to bear arms, and the prohibition of eminent domain except for public use occur to me off the top of my head. The Framers were representatives of the States. Had anyone suggested at the Constitutional Convention that the 10th amendment was intended to let nine federal justices tell the states that they couldn't regulate prostitution or sodomy, it would not have passed.
Nor would it have passed if anyone suggested that State/local gov't could ignore the 2nd, prohibiting the owning/carrying of arms, - as they do to this day, - using the theory of 'states rights'. - A theory you are endorsing.
Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
"Due Process" means that folks may be deprived of "life, liberty and property" as long as they get a fair hearing ("due process"). Read the language and think it through. There is no historic evidence that the Framers intended the due process clause in a substantive manner. It deal with "process", not results.
Think it thru yourself. We have prohibitive 'laws' on guns in many areas of the USA because States think they have the power to ignore due process.
Frankly, the argument you make is as revisionist and as radical a remaking of the Constitution as the penumbras and emanations of Justice Douglas, who was a TERRIBLE judge. Both you and Justice Douglas would use a "living" constitution to impose your moral standards on the States and in the course of doing that, ignore the clear intent of the Framers.
Frankly, thats a classical example of straw man bull. My moral standards entail enforcing the Constitution as written, as our supreme law on prohibitive infringements. -- You are advocating standards that allow States to ignore that supreme Law of the Land.
If you want to win the "if it feels good do it" war, you need to win it in the State legislatures--not in federal court.
State legislators are required by oath to support the US Constitution, "-- any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"
At least if you care at all about what the Framers intended.
The intent is clear. Prohibitions on life, liberty or property was not a power reserved to the States.