Root 'pretended' nothing. He clearly stated a fact:
"-- You will have declared that two thirds of a quorum of each House of the Congress, plus a majority of a quorum of each of the two Houses of the Legislatures of three fourths of the States, may enact any legislation they please without any reference to the limitations of the Constitution, including the Bill of Rights itself. --"
That is a fact, all right. It is also what Article V has provided since the Constitution was ratified, nothing new.
Yep it is 'nothing new' that certain factions want the power to ignore our bill of rights. We can only wonder why.
What was Root's complaint again?
Root asked, in effect, -- why would you want to give majorities a power to 'override' unalienable rights, among them the right to bear arms?
I took it to be the quorum business, since Root mentioned it and Article V does not contain the word, but discovered that the Bill of Rights was also ratified by quorums. The only thing left is the pretense that an amendment cannot be repealed.
Our unalienable rights cannot be 'repealed' away. Your pretense that they can is a sheer denial, as securing the "Blessings of Liberty" was one of the founding principles of our Constitution.
Neither you nor your quotations from Root have supported that novel claim. Do you have anything else?
Holding that rights outlined in the first ten amendments are unalienable is hardly a "novel claim".
But feel free to keep pretending that it is so.
Our unalienable rights cannot be 'repealed' away. Your pretense that they can is a sheer denial, as securing the "Blessings of Liberty" was one of the founding principles of our Constitution.
Dred Scott would have been happy to hear that. The Supreme Court ruled against him.
So what? The Court makes mistakes, as is evident by their saying that Prohibition was Constitutional. Fortunately, the people overruled them with the 21st.
I keep asking you to prove your contention by citing what part of the Constitution forbids repeal of any one or all of the first ten amendments. So far, you haven't cited anything.
Asking for unobtainable 'cites' is not debate, it's a game. --- Your game is to reject [no cites] or ignore every reasoned argument, arguing instead for prohibitive powers over life, liberty, & property.
And one amendment, the 18th, has already been repealed by a further amendment, the 21st, so I have both Article V, and precedent backing my argument. What do you have? Come out with it.
Your argument 'backs' prohibitory power. Mine is backed by a Constitutional principle for the "Blessings of Liberty". Our whole Constitution is based on a 'presumption of liberty' for individuals.
Your theory that our unalienable rights can be 'repealed' away is a sheer denial of that basic Constitutional presumption.
No, I'm not mistaking anything. The founding fathers had a reason for not applying the Bill of Rights to the states. They knew what a monster a federal government could become, and they were correct. The federal government, through the Supreme Court, has used the Bill of Rights to step into areas that are strictly state matters.
"These scholars, who might be called “libertarian centralists,” view the federal government as an indispensable partner in the struggle to protect individual rights. To that end, the libertarian centralists have advanced a number of policy proposals that should give classical liberals pause—among them: Congress should be free to comprehensively redesign state and municipal codes using the enforcement powers of the Fourteenth Amendment; using the same powers, Congress can legislate directly on matters affecting liberty, with statutes such as the Church Arson Protection Act; and the Supreme Court should depart from constitutional text and engage in moral theorizing when exercising the power of judicial review. Each of these proposals represents a rather dramatic increase in federal authority over the states. The idea that such increased authority will be used to protect liberty rather than to abuse it, represents, like a second marriage, the triumph of hope over experience.
For example, Bolick, in June 7, 1995, testimony before the House Small Business Committee’s subcommittee on regulation and paperwork, said that “Congress has the power to enforce the 14th Amendment through appropriate legislation. It should use this power to enact an Economic Liberty Act. The provisions are simple: any federal or state law that restrains entry into a business or occupation must be narrowly tailored to a legitimate public health, safety, or public welfare objective.’‘ This appears unobjectionable until one contemplates what that plenary power would mean in the hands of welfare statists.
Another example comes from Roger Pilon, director of the Cato Institute’s Center for Constitutional Studies. In a June 18, 1996, Washington Post op-ed, Pilon wrote, regarding the federal Church Arson Prevention Act, “There is, however, a proper basis for Congress to act in the case at hand. It is the 14th Amendment... [I]f state measures prove inadequate and there is evidence available to Congress that federal intervention is necessary, there is ample authority under the 14th Amendment for Congress to act.”
And in a 1988 Cornell Law Review article titled “Reconceiving the Ninth Amendment,” Boston University law professor Randy Barnett wrote that “Given that the Fourteenth Amendment extends the protection of constitutional rights to acts of state governments, the Ninth Amendment stands ready to respond to a crabbed construction that limits the scope of this protection to the enumerated rights.” Again, although it sounds benign, this view is unjustifiably confident that the federal government won’t use the power to enforce unenumerated “positive welfare rights” on the states.
Patrick Henry, arguing against ratification of the Constitution, admonished Virginians to “Guard with jealous attention the public liberty. Suspect every one who approaches that jewel. Unfortunately, nothing will preserve it, but downright force: Whenever you give up that force, you are inevitably ruined.” The states did not voluntarily “give up” that force in 1861-65; it was wrested from them by federal aggression. Before the Civil War, individuals were protected from centralized coercion by multiple, divided sovereignties, competing in their interpretations of the national charter, and backing their respective interpretations with force. After that war, individuals were confronted with a powerful unitary state, one that justified its aggression—domestic and foreign with appeals to “liberty.”
Libertarian centralists assure us that we can restore true liberty by gaining influence over that state and making its institutions work for us. The history of American federalism suggests a different solution. If there is a libertarian future, it lies in dividing sovereignty in nullification and secession: opposing Power with Liberty at every turn; hammering every fault line in an attempt to crack the edifice; dividing and diminishing Power, in the hope that individuals will be better able to overcome it or, failing that, escape it. Any other route is a diversion, and a potentially dangerous one at that.
LINK
But how valid is the Incorporation Doctrine and the argument that the 14th Amendment transforms the meaning of the Bill of Rights from a restriction on federal power into one on the states? The answer is that that argument is without merit. 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.
Liberal legal scholar Charles Murphy let this cat out of the bag when he wrote in his glowing history of the Warren Court that Warren "had utilized the judiciary as a constructive policy-making instrument in a wide range of areas. Intent more upon social ends than upon legal subtleties and refinements, and candidly prepared to say so, he had pushed the nation, through his Court's legal rulings, to take public actions that Congress was unprepared to recommend and the executive was incapable, unilaterally, of effectively securing."
In other words, Warren was indifferent to the real meaning of the Constitution but simply wanted to use the Constitution as a justification for his own "policy-making," and the policies he wanted to push were those that could not be enacted by Congress or the President because there was no popular support for them. Only by relying on the least democratic and least responsive branch of the federal government could Warren and his colleagues and heirs hope to impose their policy preferences on the country, and only by distorting the meaning of the Constitution and converting it into an instrument for political goals could they carry through their revolution.
Probably the definitive refutation of the argument for the Incorporation Doctrine is found in the work of legal scholar Raoul Berger of Berkeley and Harvard University, whose lifelong study of the enactment of the 14th Amendment shows that most of those who drafted and enacted the amendment had no intention of using it to incorporate the Bill of Rights against the states. The framers of the 14th Amendment certainly intended to protect the "privileges and immunities" of U.S. citizens from infringement by the states, but the question is whether the "privileges and immunities" language of the amendment includes, as Justice Black claimed it did, the rights that the Bill of Rights protect.
In fact, the 39th Congress was mainly concerned with establishing constitutional authority for its Civil Rights Act of 1866, which was meant to protect the rights of recently emancipated slaves in the South, and these rights, specified in the Act, consisted explicitly of the "right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment." These rights were held to be incident to the fundamental rights of life, liberty, and property without which the "fundamental rights of citizenship" could not be enjoyed. The emancipated slaves were now citizens, and like all citizens had to enjoy these fundamental rights that enabled them to function in society and sustain their freedom.
As Berger has shown, the "privileges and immunities" clause of the 14th Amendment refers not to the Bill of Rights but to the language of Article IV, section 2 of the Constitution, which declares, "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." The amendment merely confirmed such entitlement to citizens of the United States against the states. The language of Article IV could not refer to the protections of the Bill of Rights because: a) it was written well before the Bill of Rights was even drafted; b) the purpose of the language was to require, as Berger writes, "states to accord certain privileges to citizens of a sister state," a purpose "of entirely different provenance" from that of the Bill of Rights, which "was designed to protect certain rights against the federal government"; c) the debates over the Bill of Rights in the First Congress show no disposition to relate the Bill of Rights to the "privileges and immunities" language of Article IV; and d) early court decisions such as Corfield v. Coryell (1823) explicitly specified the "privileges and immunities" to which the language of Article IV referred (largely the same rights later extended to the freedmen in the 1866 Civil Rights Act) and explicitly rejected the "all-inclusive" interpretation of Justice Black. As Berger writes in his authoritative Government by Judiciary of the debates over the adoption of the 14th Amendment by the 39th Congress:
The constant reiteration that the purpose of the Amendment was to constitutionalize the Civil Rights Act, the frequent tributes to State sovereignty, and recognition of powers reserved to the States by the Tenth Amendment, in which [Rep. John] Bingham [of Ohio, author of Section 1 of the 14th Amendment] joined, unite to repel an inference that the framers intended to interfere with State conduct in its own affairs otherwise than is described in the Act.
Moreover, Berger quotes Hugo Black himself, some years before his formulation of the Incorporation Doctrine in Adamson in 1947. Despite Black's efforts in Adamson to argue that the framers of the 14th Amendment intended to incorporate the Bill of Rights, his earlier statements contradicted that argument. "The states," Black wrote in a 1938 Supreme Court ruling, "did not adopt the [14th] Amendment with knowledge of its sweeping meaning under its present construction. No section of the Amendment gave notice to the people that, if adopted, it would subject every state law ... affecting [judicial processes] ... to censorship of the United States courts." In other words, the inventor of the Incorporation Doctrine himself acknowledged that the intent of the framers of the 14th Amendment did not include incorporation. Only by abandoning the concept of original intent could Justice Black expect to sustain his own case for Incorporation.
Nevertheless, despite the absence of any authority for accepting the Incorporation Doctrine, the court proceeded to apply it as it wished, and having gotten away with applying it in selected and limited cases early in the century, it soon began to rely on it for its revolutionary purposes. The list of judicial invasions described by Douglas Bradford suggests the scope of the power that the Doctrine provided to the court, and to this day the court continues to rely on this totally unfounded myth to justify its intrusions into state and local affairs.
LINK
First, the Everson v. Board of Education decision [330 U.S. 1, 18 (1947)] which started this mythical ‘separation of church and state' movement. Justice Black delivered the opinion of the court which had some rather convoluted language justifying their position:
"The New Jersey statute is challenged as a "law respecting an establishment of religion." The First Amendment, as made applicable to the states by the Fourteenth, commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."
The Fourteenth Amendment states in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;" The Fourteenth Amendment created a second class of "citizen," an important distinction few people understand. The 1947 Supreme Court took the position that the freedom to worship is a privilege, not a God-given right.
Second, Roe v Wade (1973): The nine member all male court used the 14th Amendment to condone the murder of unborn babies. The majority opinion fell to Blackmun who crafted an opinion which glaringly and miserably failed to identify any specific U.S. constitutional guarantee to justify the court's ruling. Like a magician, he hallucinated up a decision on the right to privacy citing protection of due process under the 14th Amendment. Translated: the court conjured up a right that was not specifically enumerated in the Constitution.
Third, Lawrence v Texas (2003). In this case, the question to the court was due process and equal protection under the 14th Amendment regarding a Texas statute that made it a crime for two persons of the same sex to engage in certain intimate conduct (sodomy). Once again, the Supreme Court not only came up with one of the most convoluted, toxic decisions of the past century, it went much deeper than that. This was an all out attack on states' rights.
LINK
No, I'm not mistaking anything at all.