Posted on 04/24/2002 3:56:03 PM PDT by TLBSHOW
How, then, are we to interpret the language of the Amendment itself, WRT to the section that states "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"? What does that mean, if it does not mean what it plainly says?
Nope; the privileges and immunities clause is right there in the final amendment text.
The language that was intended to apply the Bill of Rights to the states was deleted from the final version of the 14th Amendment. So while the Senator may have wanted the Bill of Rights to apply to the states, his colleagues clearly disagreed with him. We cannot apply the meaning of the first draft when it was not adopted.
Do you feel this is a good thing? IOW, you must then argue that, although it would be wrong and unconstitutional for the federal government to confiscate all firearms from citizens, it is proper and just that the state of California does so. Why is it proper and just that rights guaranteed to citizens by the Constitution can be abrogated by the states at will?
What is the point of having a "right" to keep and bear arms if it can be revoked by the states? If such a thing is revocable, does it make sense to even call it a "right"?
There is a difference between "rights" and political authority. A state may have the political authority to violate someone's rights. But they are morally wrong to do so.
I for instance, believe the income tax is nothing more than armed robbery. I believe it is morally wrong and a violation of our rights. But I don't pretend the government does not have the authority to levy such a tax.
My advice to the people of California is to change their constitution or move to a state that has gun rights protection in its constitution.
And I do believe that federalism is a good thing. I don't want to give the federal courts more authority to micromanage our lives.
No one can say what "priveleges and immunities" means. There is no list.
Original drafts of the 14th Amendment had plain language indicating that the Bill of Rights applied to the states. This language was deleted. The fact that they deleted unequivocal language and replaced it with "priveleges and immunities" indicates that the phrase must mean something else.
Hate-speech laws have been held unconstitutional by the Supreme Court, in a case called RAV v Wisconsin. What the Supreme Court upheld were hate-crime laws, which increased the penalty for something which would have been a crime anyway (assault, vandalism, etc.) if done for a racist motive. But pure hate speech, unaccompanied by any other criminal act, is constitutionally protected.
(I do not approve of such images any more than you do. I'm just terribly concerned that the effects of such prohibition will legally be much more extensive than intended. There is a great deal of legitimate classical artwork which is legally indistinguishable from what you want to ban.)
That may be so, and I’m sure that people who get off on porn agree with you. However, there is no reason that the desires of “People for Porn” should trump the desires of those who do not wish to have it shoved in their faces and the faces of their families. Citizens, acting in concert, have a great deal of discretion in managing their environment. They do it all the time in regards to zoning laws, the construction of public works, public nuisance laws, environmental regulations, etc. Before the passage of many of the environmental regulations we operate under today, many people argued that government did not have the power to regulate pollutants. That is no longer an argument that holds much credence. Today, the argument is over the efficacy of those regulations and in discussions of cost/benefit relationships.
Thanks to the intellectual pollution that inundates our society, I predict that a backlash is coming, there will be regulation of intellectual pollution, and the discussion in the future will be in the cost/benefit relationships.
Sorry -- you should have done your homework and read the link I gave:
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: [Bingham appends text of Amendments I-VIII]
If it's so plain, please make a list of the "privileges or immunities of citizens of the United States." I'd like to see a complete list of all my "privileges and immunities".
And please give a source for each item on the list, because we're going to use this list to allow a bunch of unelected judges throw out laws made by the people through the democratic process. We need a complete list and it needs to be something no one can argue about.
You realize, of course, that by making this list, you've thrown out the 9th and 10th Amendments. But you insist that you know what the "privileges or immunities of citizens of the United States" are. So go ahead and make the list.
Your (implied) conclusion does not follow from your premise. Even if I grant that we do not know all of the privileges and immunities available to citizens, it does not then follow that we do not know any of them. In particular, is it your contention that the rights enumerated in the Bill of Rights are not among the privileges and immunities enjoyed by citizens?
If you can make it out alive. Not only are you abandoning the 1st and 2nd Amendments to the whims of state authorities, but you potentially give up any protections afforded by the 4th, 5th, 6th, and 8th amendments as well. Sounds rather dangerous to me.
Nonsense. As for the Ninth Amendment, Bingham's exposition of original intent clearly recognized it by noting that "privileges and immunities" are chiefly (rather than exhaustively) defined by the first eight amendments. As for the Tenth Amendment, the powers "reserved to the states respectively, or to the people" remain as expansive as ever -- certain things are simply denied to the former in favor of the latter.
My contention is that since the phrase can mean absolutely anything, it means nothing.
I belive that people should be allowed to make their own laws through the democratic process -- not have some judge decide what's good for them. If we allow judges to use "privileges and immunities" to overturn laws, we have given up government by the people and have accepted government by the judges.
The point is, that since none of us can make a list of "privileges and immunities", we're in no position to argue with a judge when he imposes his will on us by claiming that he has discovered a "privilege" or an "immunity" that is infringed by a law the people have passed.
"It is not the function of art to wallow in dirt for dirt's sake, never its task to paint the state of decomposition, to draw cretins as the symbol of motherhood, to picture hunchbacked idiots as representatives of manly strength.
--Adolf Hitler (Nazi Party Rally, Nürnberg, 1935)
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