Congress, the Court, and the Constitution (LOUIS FISHER)

You are just rationalizing your 'states rights' opinion, as that opinion has always been defended, dispite the clear words of the constitution & BOR's as being the law of the land.
- The 14th was debated, and ratified to settle the matter, but obviously it wasn't.

Indeed, "they wanted power to be balanced between state and federal governments', tempered by a stict observance, by both, of individual liberties outlined by our BOR's. This is proven fact as per the 14th.

We weren't talking about the 14th amendment. We were talking about whether whether the Barron decision was consistent with the received understanding of the BOR at the time it was passed. Do you have any citations from that time period to suggest that it wasn't?

The Barron decision wasn't 'passed', it was an opinion of the USSC, just like Roe v Wade.

IMO, barron was a cynical attempt to appease the south, and avert war. -- Do you have any citations from that time period to suggest that it wasn't?

The Barron decision wasn't 'passed'

I know. My sentence referred to when the Bill of Rights was passed, not when the Barron ruling was handed down.

IMO, barron was a cynical attempt to appease the south, and avert war. -- Do you have any citations from that time period to suggest that it wasn't?

If it was a political decision, then it would have generated controversy. Particularly, if it was designed to placate the South, then there would have been significant opposition up North. If you go to a seach engine with terms such as Barron, Baltimore, controversy, it'll come up with nothing to speak of. Compare this to the reaction to Taney's ruling in Dred Scott vs. Sanford. Like night and day.

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The Founders intended for the political branches of government to be subject to the law - i.e., the Constitution - and as well intended for the judiciary to declare the meaning of that law. If the political branches contemn the courts on such matters, they are in effect announcing that they are behaving outside the law, and that they recognize no restraints upon their discretion. This defeats the whole purpose of having a written Constitution.
7 -inquest-

I agreed with your comment above , as did Marshalls decision of 1803.
- His Barron decision does not, as it, in effect, says that state governments are not subject to the laws/principles of our BOR's. This defeats the whole purpose of having a written Constitution.

Now, you claim:

"We were talking about whether whether the Barron decision was consistent with the received understanding of the BOR at the time it was passed." -inquest-

Obviously, I repeat, it was not consistent. States were bound to honor the constitution by Art VI. There was no exception for the BOR's.

States were bound to honor the constitution by Art VI.

The supremacy clause is only relevant to the states in cases where it can be determined that a particular provision in the Constitution restricts state action. Once it is determined that said provision restricts the states, then the supremacy clause will automatically nullify state law to the contrary. But in order for it to do that, it must first be shown that the provision in question truly does apply to the states.

The evidence so far is that the founders (of whom Marshall was one, btw) did not consider that the Bill of Rights was among the provisions that restricted the actions of the states.

One other thing I noticed from your post:

His Barron decision does not, as it, in effect, says that state governments are not subject to the laws/principles of our BOR's. This defeats the whole purpose of having a written Constitution.

It actually doesn't defeat the purpose of the Constitution. The Constitution was written to create a federal government, and to define its powers. Marshall's ruling was consistent with that purpose. He wasn't saying that states have the power to interpret the Constitution as they see fit, nor did he say they weren't subject to the law. He was saying that the law didn't say what the plaintiff in error claimed it said. That's all.

States were bound to honor the constitution by Art VI.

The supremacy clause is only relevant to the states in cases where it can be determined that a particular provision in the Constitution restricts state action.

Do you have any citations from that time period to suggest that this is a fact?

Once it is determined that said provision restricts the states, then the supremacy clause will automatically nullify state law to the contrary. But in order for it to do that, it must first be shown that the provision in question truly does apply to the states.

Do you have any citations from that time period to suggest that is a fact? -- I've never heard these particular opinions presented before. -- Anywhere.

The evidence so far is that the founders (of whom Marshall was one, btw) did not consider that the Bill of Rights was among the provisions that restricted the actions of the states.

You have failed to show ~any~ such 'evidence'.
Do you have any citations from that time period to suggest that these suppositions are true?

Our Constitution was written to create a United ~States~ of America, and to define ~all~ governmental powers.
See the 10th, and contemplate on the meaning of "prohibited by it to the States".

Do you have any citations from that time period to suggest that is a fact? -- I've never heard these particular opinions presented before. -- Anywhere.

I thought I was just stating obvious facts about the supremacy clause. You first need to establish that a provision restricts state action before it can nullify state law. I can't put such a self-evident notion in any plainer terms than that.

You have failed to show ~any~ such 'evidence'. Do you have any citations from that time period to suggest that these suppositions are true?

Well, I presented you with the Preamble to the Bill of Rights; and on previous threads I showed you how Section 9 of Article I compares with Section 10 (illustrating the difference between a general prohibition and one that's specific to the states), which you've consistently rejected without saying why.

I've also told you that the reason why people insisted upon a Bill of Rights was that they were afraid of the powers of the new federal government, and wanted those powers curtailed. There's no indication that they were acting out of fear of their own state governments, since (among other things) there was no comparable provision in the Articles of Confederation.

Also, you might want to consider this draft proposal by James Madison for what ultimately became the first amendment: "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases." Source

If the first part already restricted the states, then there would have been no need to repeat it in the second part. Madison seemed to be a fairly literate fellow, so I think we can conclude that he knew how to express himself coherently. If it was his view that general prohibitions only applied to the federal government, then I think it's safe to say that that was the general view of those around him.

Our Constitution was written to create a United ~States~ of America, and to define ~all~ governmental powers. See the 10th, and contemplate on the meaning of "prohibited by it to the States".

Touche. My error. Even still, Marshall's ruling was consistent with the notion that the Constitution's purpose was to arrange the powers of goverment throughout the Union. He simply had a different view of how those powers were arranged than you do.

That was my original comment.

Marshalls point in 1803 differed from the one he made in Barron, 30 years later. The latter one was not consistent with the obvious original intent of the founders.

But I showed you at #30 how it was consistent with the original intent.

At this point I'm going to have to ask you once again the question you've been reflecting back at me for the last few posts. Do you have any citations from the time period, or any other evidence beyond your own reading of the Bill of Rights, to suggest that the Founders intended for it to curtail state powers?

Marshalls point in 1803 differed from the one he made in Barron, 30 years later. The latter one was not consistent with the obvious original intent of the founders.

But I showed you at #30 how it was consistent with the original intent.

Not at all. At 30 you just elaborated on your circular argument that the States have powers to write law not directly restricted by particular provisions of the constitution, ignoring the BOR's as part of the constitution, on the basis that it was decreed so by the Barron opinion of the USSC.

At this point I'm going to have to ask you once again the question you've been reflecting back at me for the last few posts. Do you have any citations from the time period, or any other evidence beyond your own reading of the Bill of Rights, to suggest that the Founders intended for it to curtail state powers?

The entire Constitution [which includes the BOR's] curtails states powers in various different provisons.
-- The most important of which, and the one that proves my point best, is the 14th.
By 1868, it was obvious that the Barron 'ruling' was being abused by states to curtail individual rights, [noteaby the 2nd], thus its passage was an effort to restore original intent.

Some states are still ignoring the 2nd, as per CA, and it constantly amazes me that some 'conservatives' agree that states have such powers. -- What possible political advantage is gained by agreeing that states can ignore our individual rights?

Not at all. At 30 you just elaborated on your circular argument that the States have powers to write law not directly restricted by particular provisions of the constitution, ignoring the BOR's as part of the constitution, on the basis that it was decreed so by the Barron opinion of the USSC.

Are you reading the same post I am? I did indeed argue "the States have powers to write law not directly restricted by particular provisions of the constitution" but it was most certainly not "on the basis that it was decreed so by the Barron opinion of the USSC." It was on the basis of the language contained in Sections 9 and 10 of Article I, on the basis of the preamble to the Bill of Rights, and on the basis of Madison's language when he was proposing an early draft of the Bill of Rights.

What possible political advantage is gained by agreeing that states can ignore our individual rights?

I wouldn't agree to that. I always insist that states should respect our rights. What I'm arguing against is the notion that the federal government has such legitimate powers over the states. Consider what happens, for example, when the high court makes rulings such as those which prohibit graduation speakers from issuing prayers, but allow them to give sermons about the need for more school funding, or about promoting "diversity" or other such drivel. Does this contribute to a greater appreciation for liberty? Does it cultivate an affection for small government or individual freedom? Most certainly not. What it does do is weaken people's resistance to federal authority. It does absolutely nothing else.

And if you want RKBA respected in California, it's not going to happen by petitioning the federal courts. They're not interested in gun rights. Your best bet is to put your efforts into fighting for it locally. Ultimately, the only way rights are going to be respected is if a certain critical mass of the population is educated about them.

Not at all. At 30 you just elaborated on your circular argument that the States have powers to write law not directly restricted by particular provisions of the constitution, ignoring the BOR's as part of the constitution, on the basis that it was decreed so by the Barron opinion of the USSC.

Are you reading the same post I am? I did indeed argue "the States have powers to write law not directly restricted by particular provisions of the constitution" but it was most certainly not "on the basis that it was decreed so by the Barron opinion of the USSC."
It was on the basis of the language contained in Sections 9 and 10 of Article I, on the basis of the preamble to the Bill of Rights, and on the basis of Madison's language when he was proposing an early draft of the Bill of Rights.

Merely making a statement that those items are the basis of your argument, -- is not an argument. I have no idea what your percise point may be. You never specified.

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What possible political advantage is gained by agreeing that states can ignore our individual rights?

I wouldn't agree to that. I always insist that states should respect our rights. What I'm arguing against is the notion that the federal government has such legitimate powers over the states.

I don't have that notion, while you seem to have one that equates the feds with our constitution. [The 'feds' have no power over states except that delegated. -- AND. -- The 'states' have no power over feds except that delegated.] --- They are supposed to check and balance. -- Get it?

Consider what happens, for example, when the high court makes rulings such as those which prohibit graduation speakers from issuing prayers, but allow them to give sermons about the need for more school funding, or about promoting "diversity" or other such drivel. Does this contribute to a greater appreciation for liberty? Does it cultivate an affection for small government or individual freedom? Most certainly not. What it does do is weaken people's resistance to federal authority. It does absolutely nothing else.

By not fighting the USSC on these 'rulings', the States are failing in their constitutional obligations to the people. -- You are blaming our Constitution for the 'peoples' political failures.

And if you want RKBA respected in California, it's not going to happen by petitioning the federal courts. They're not interested in gun rights. Your best bet is to put your efforts into fighting for it locally. Ultimately, the only way rights are going to be respected is if a certain critical mass of the population is educated about them.

Gee, I never thought of that. --- Yet you've spent a good amount of time, trying to 'educate' me in the supposed fact that CA is not obligated to honor the 2nd amendment.
-- Go figure, - Because I can't.

I have no idea what your percise point may be. You never specified.

Of course I specified. The point is that general prohibitions in the Constitution, that don't mention states, apply against the federal government only. Those items I mentioned are evidence in support of that point. Ignore them if you like, but there they stand.

The 'feds' have no power over states except that delegated.

They have the power to enforce the Constitution. If your position is true, that the Bill of Rights is binding upon the states, then the "feds" have the power to enforce it. My position is that the Founders didn't intend for it to be binding on the states, so therefore the federal government would be without power to enforce something that was intended to only apply to themselves. So yes, this dispute is about the proper extent of federal power.

By not fighting the USSC on these 'rulings', the States are failing in their constitutional obligations to the people. -- You are blaming our Constitution for the 'peoples' political failures.

That's no different from you blaming Barron vs. Baltimore for the people's failure, in your state, to respect gun rights. Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me.

Yet you've spent a good amount of time, trying to 'educate' me in the supposed fact that CA is not obligated to honor the 2nd amendment.

The only thing I've tried to convince you of is that the federal courts aren't constitutionally empowered to protect gun rights from your state government. That's up to the people of your state.

I have no idea what your percise point may be. You never specified.

Of course I specified. The point is that general prohibitions in the Constitution, that don't mention states, apply against the federal government only. Those items I mentioned are evidence in support of that point. Ignore them if you like, but there they stand.

Very well then, your entire point is made mute by the 14th amendment, which 'mentions' that States must observe individual rights to life, liberty or property.

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The 'feds' have no power over states except that delegated.

They have the power to enforce the Constitution.

Yep, sure do. Although below, you again insist they can't enforce individual rights to property. Weird dichotomy:
"the federal courts aren't constitutionally empowered to protect gun rights from your state government"
Which way would you have it?

If your position is true, that the Bill of Rights is binding upon the states, then the "feds" have the power to enforce it. My position is that the Founders didn't intend for it to be binding on the states, so therefore the federal government would be without power to enforce something that was intended to only apply to themselves.

Circular reasoning again? The protection of individual rights were VERY important to the founders, and they certainly were not naive enough to believe that state governments couldn't abuse them. The BOR's applies to states, just as it says in the 10th.

So yes, this dispute is about the proper extent of federal power.

It shouldn't be, because I agree the feds abuse our constitution, more so than the states.

By not fighting the USSC on these 'rulings', the States are failing in their constitutional obligations to the people. -- You are blaming our Constitution for the 'peoples' political failures.

That's no different from you blaming Barron vs. Baltimore for the people's failure, in your state, to respect gun rights.

Odd comment. -- I don't 'blame' B v B. - I blame the communitarians in power, and some of their 'states rights' so-called-conservative allies, who passed these insane bills.

Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me.

Yet you've spent a good amount of time, trying to 'educate' me in the supposed fact that CA is not obligated to honor the 2nd amendment.

The only thing I've tried to convince you of is that the federal courts aren't constitutionally empowered to protect gun rights from your state government. That's up to the people of your state.

You said just above:

"They have the power to enforce the Constitution."

I suggest you rethink your position.

Yep, sure do [have the power to enforce the Constitution]. Although below, you again insist they can't enforce individual rights to property. Weird dichotomy: "the federal courts aren't constitutionally empowered to protect gun rights from your state government" Which way would you have it?

You're making the assumption that because I say they have the power to enforce the Constitution, I must be saying they have the power to enforce your interpretation of it. Why would you make such an assumption?

The protection of individual rights were VERY important to the founders, and they certainly were not naive enough to believe that state governments couldn't abuse them.

Hmm. I guess that explains why they never bothered to include a bill of rights in the Articles of Confederation, or in the original draft of the Constitution. The Bill of Rights was passed at the insistence of the anti-federalists - you know, the "states' rights" crowd.

The BOR's applies to states, just as it says in the 10th.

The 10th amendment says absolutely no such thing.

It shouldn't be, because I agree the feds abuse our constitution, more so than the states.

And if the Barron precedent had been followed, federal abuse of the Constitution would have been significantly curtailed.

I don't 'blame' B v B. - I blame the communitarians in power, and some of their 'states rights' so-called-conservative allies, who passed these insane bills.

But it was the Barron precedent which, in your view, enabled these people to get away with it, is that right? Similarly, I said, "Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me." You quoted me but didn't respond.

Yep, sure do [have the power to enforce the Constitution]. Although below, you again insist they can't enforce individual rights to property. Weird dichotomy:
"the federal courts aren't constitutionally empowered to protect gun rights from your state government"
> Which way would you have it?

You're making the assumption that because I say they have the power to enforce the Constitution, I must be saying they have the power to enforce your interpretation of it. Why would you make such an assumption?

Because nothing else is logical? Look, you have the odd interpretation of our constitution, not me. -- Why? I don't know.

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The protection of individual rights were VERY important to the founders, and they certainly were not naive enough to believe that state governments couldn't abuse them.

Hmm. I guess that explains why they never bothered to include a bill of rights in the Articles of Confederation, or in the original draft of the Constitution. The Bill of Rights was passed at the insistence of the anti-federalists - you know, the "states' rights" crowd.

How backwards. The 'states rights' crowd want to be able to ignore individual rights, and always have. -- Nope, -- The BOR's were passed to insure that all levels of government protected individual rights to life, liberty, and property, enumerated or not.

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The BOR's applies to states, just as it says in the 10th.

The 10th amendment says absolutely no such thing.

Powers not prohibited to the States [& those prohibited were enumerated in the BOR's/Constitution], - are reserved to the states, -- or to the people. - Plain to me.

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I agree the feds abuse our constitution, more so than the states.

And if the Barron precedent had been followed, federal abuse of the Constitution would have been significantly curtailed.

By who? States taking away gun rights from ex-slaves in 1868? -- Daft.

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I don't 'blame' B v B. - I blame the communitarians in power, and some of their 'states rights' so-called-conservative allies, who passed these insane bills.

But it was the Barron precedent which, in your view, enabled these people to get away with it, is that right?

B v B is a minor one of their ploys. The Milita clause seems to be the hot cite for prohibiting 'assault' weapons.

Similarly, I said, "Yes, the states and the people are failing to resist federal encroachment. The question is, Is the current interpretation of the Constitution part of the solution, or part of the problem? Seems clearly part of the problem to me." You quoted me but didn't respond.

Of course I didn't respond. It's a rhetorical 'question', that in effect just restates your position. -- Whats to say?