Posted on 04/24/2002 3:56:03 PM PDT by TLBSHOW
You're begging the question. A common logical fallacy.
Please show me language in the 14th Amendment that says the Bill of Rights applies to the states.
It's not there. Our friend, Steve-B argues that the phrase "Privileges and immunities" is a code phrase for "Bill of Rights". He presents, as evidence of his claim, remarks made by a Senator who helped draft the Amendment. I have pointed out that while the original draft contained language that explicitly applied the Bill of Rights ot the states, that language was stricken from the final version. This indicates a lack of support for the application of the Bill of Rights to the states -- even in the Congress.
I have also pointed out the dubious nature of the passage and ratification process. (About which you may find more information here. My learned friend has, it appears, expressed a negative opinion of this information. Whether he does not believe the historical record is accurate, or whether he doesn't care about the accuracy of the record is difficult to determine.
I believe this is the state of the debate at this time. If you have anything to add to the debate, I for one welcome your input. However, a mere assertion that the 14th Amendment applies the Bill of Rights to the states does not further the debate. My learned colleague has already made that assertion.
I am all for applying the clause when someone can give us a definitive list of what these "priveleges and immunities" are and give some authority for each item on the list. But until we can say for certain what these privileges and immunities are, it is too dangerous to allow judges to make up their own list as they go along.
One more time. 24 states have passed laws banning virtual child pornography. SCOTUS has ruled that VKP is protected by the first amendment, believe it or not. Therefore, as soon as the state laws are challenged by the ACLU or the local pedophile chapter, guess what?
You have asserted this without support (which stands in rather poor contrast to my citation of two scholarly documents). Also, you have failed to explain the relevance of this alleged fact, given the documented facts that 1)the Privileges and Immunities Clause was manifestly not stricken from the final version, and 2)the drafter of the Amendment clearly meant for this clause to encompass chiefly (though not exclusively) the rights recited in the first eight amendments of the Constitution.
I have also pointed out the dubious nature of the passage and ratification process. (About which you may find more information here. My learned friend has, it appears, expressed a negative opinion of this information.
More precisely, I expressed a realistic opinion of the prospect that this alleged information would have the slightest influence upon the American legal system.
However, a mere assertion that the 14th Amendment applies the Bill of Rights to the states does not further the debate. My learned colleague has already made and documented that assertion.
Your connection dropped out a string of characters. I have helpfully supplied them.
I just DID!
Look: you are (presumably) a citizen of your state, you are therefore a citizen of the United States of America, your rights are recognized and protected by the Bill Of Rights, the Bill Of Rights is part of the Constitution, the Constitution is the highest law of the land, and the 14th Amendment expressly guarantees equal protection under the law - that means that your right to free speech is protected regardless of what state you live in.
What you don't seem to understand is that the Bill Of Rights IS LAW. Those particular 10 laws protect your rights as a USA citizen, and as such the 14th Amendment prohibits the states from infringing on those protections.
No State shall ... deny to any person within its jurisdiction the equal protection of the laws.
There it is. Deal with it.
What in the world makes you assume that “Intellectual Pollution” is concerned with what people think? What bizarre definition of this phrase is found in your fertile brain? That’s the second time that you imply that I care what you think. It isn’t about you. Who do you think you are, Bill Clinton?
LOL
Reminds me of the old commercial: does she or doesn't she? Only her hairdresser knows for sure.
But that's child molestation and/or statutory rape under existing state laws. And it's still kiddie porn under existing Federal and state laws. How would CPPA have helped in that case?
This time he just ran. -- Thanks.
From The United States v. the William (28 Fed. Cas. 614, no. 16,700 D.Mass. 1808):
Furthermore, the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. The mode of its management is a consideration of great delicacy and importance; but, the national right, or power, under the constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to me unquestionable.
Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823)
Commerce with foreign nations, and among the several states, can mean nothing more than intercourse with those nations, and among those states, for purposes of trade, be the object of the trade what it may; and this intercourse must include all the means by which it can be carried on...
Justice Marshall in Brown v. Maryland (12 Wheat. 419 1827):
It may be doubted whether any of the evils proceeding from the feebleness of the federal government contributed more to that great revolution which introduced the present system, than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise, that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the states. To construe the power so as to impair its efficacy, would tend to defeat an object, in the attainment of which the American public took, and justly took, that strong interest which arose from a full conviction of its necessity.
This is not the "destruction of limited government." One of the enumerated powers of Congress is the power to regulate commerce between the states. The power has a clear limit: there is no power granted to Congress to regulate the commerce that takes place within the borders of a state. Most cases in which the Congressional power to regulate commerce has been limited by the Courts involve the distinction between intra- and inter-state commerce, as this article indicates.
The general rule was clearly articulated in Carter v. Carter Coal Co., 298 U.S. 238, 303, 56 S.Ct. 855 (1936):
One who produces or manufactures a commodity, subsequently sold and shipped by him in interstate commerce, whether such sale and shipment were originally intended or not, has engaged in two distinct and separate activities. So far as he produces or manufactures a commodity, his business is purely local. So far as he sells and ships, or contracts to sell and ship, the commodity to customers in another state, he engages in interstate commerce. In respect to the former, he is subject only to regulation by the state; in respect to the latter, to regulation only by the federal government.
I have not found cases where the commerce clause was interpreted as having limits on the ends to which interstate commerce could be regulated.
The problems to which you refer were of course in mind when the Framers met, but in fact they didn't write: "No state shall lay tarrifs on goods imported from any other state; nor prohibit the importation of goods from any other state." They explicitly assigned to the general government a power to regulate commerce between the states, stated in general terms, with no specification as to its objects or purposes.
Most of the abuse of the commerce clause has been through strained definitions of interstate commerce. In the present case, it seems me quite obvious that internet sales are interstate commerce. I would oppose as bad policy most regulation of such sales, but not on constitutional grounds.
Nor does this interpretation detract from any powers reserved to the state. It does not propose the federal prohibition of the making of virtual child porn, which, according to the rule cited above, is a matter for state action. It suggests that it would be constitutional to prohibit offering such images for sale across state or national borders.
Furthermore, the internet poses new problems of regulation which the 18th century did not foresee. However, the Framers did not give the commerce clause a narrow guage, precisely because they were not only concerned with a specific set of contemporary issues, but because they recognized that interstate commerce would inevitably present continual complications which required federal oversight. As Madison wrote to Monroe in 1785, as the defects of the Articles were becoming clear:
Viewing in the abstract the question whether the power of regulating trade, to a certain degree at least, ought to be vested in Congress, it appears to me not to admit of a doubt, but that it should be decided in the affirmative. If it be necessary to regulate trade at all, it surely is necessary to lodge the power, where trade can be regulated with effect, and experience has confirmed what reason foresaw, that it can never be so regulated by the States acting in their separate capacities. They can no more exercise this power separately, than they could separately carry on war, or separately form treaties of alliance or Commerce. The nature of the thing therefore proves the former power, no less than the latter, to be within the reason of the foederal Constitution.
Your reading seems to me to be controlled by your idea of what a "limited government" ought to be, rather than by a real examination of original meaning.
In Federalist #42, James Madison explained the purpose of the "Commerce Clause".
The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought into view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity. To those who do not view the question through the medium of passion or of interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors, must appear not less impolitic than it is unfair; since it would stimulate the injured party, by resentment as well as interest, to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain. The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.
As you can see, the interpretation I advance agrees with Madison's.
Equality under the law. Red, white, black, brown, green -- people are treated equally under the law. But nothing in that phrase dictates what those laws will be.
What part of "the Bill Of Rights _is_ law" don't you understand?
The meaning you propose makes a mockery of the idea of limited government. If the federal government is authorized to pass virtually any law that suits it, using "regulation of commerce" as an excuse, then there was certainly no point in listing things Congress could do in Article I section 8.
Let's face it, the law you support does not regulate "commerce". It regulates pornography. Commerce is just a convienient excuse. A hook from which to hang a law.
Do you think Madison wrote all that stuff about limited government as some sort of twisted joke? That he was trying to spring a government with virtually unlimited authority to pass any law on an unsuspecting nation?
Somehow I don't see Madison, Washington, Franklin and the boys saying, "We'll give the federal government virtually unlimited authority with this "commerce clause", but we'll all lie about it. We'll all go to our graves claiming to have created a limited government, but in the 1930's, they'll figure it out."
Like I say, I really can't see those old boys pulling a joke like that.
Anyway, here's an article that discusses the various interpretations put on the commerce clause. It is rather longish. Unless you're really willing to consider changing your mind, I don't know if I'd recommend reading it.
Glen Reynolds' article is structured on the same lines. The words in the Constitution can't mean what they say because that would violate the theory of limited government.
Notice that his citation of Justice Story leaves out the part that I quoted, in which Story draws a very different moral than Reynolds does. Likewise, the footnote to his claim that "regulate" does not mean "control" but "make regular" cites no 18th or early 19th century source but only another Cato pundit and Don Regan. This claim conflicts with the early court decisions which I cited in my posts.
As Reynolds himself grants, one does not need this manipulation to see the inapplicability of the Commerce Clause to the Gun-Free School Zones Act. It would be enough to note, as he does in the first paragraph of the piece after the executive summary, that there was "no commerce at issue" in that act. The rest of the article is an attempt to manipulate of the Constitution to fit libertarian ideology.
The Constitution is not a program for putting a theory into effect. It is a legal instrument. One understands a legal document by looking at what it actually says in the context of the things people actually said and wrote about it at the time.
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