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To: mrsmith
"but I don't know of him ever saying that it had actually invreased the federal government's powers over the states/people. "

I doubt if he did. Again, I do NOT contend that the Bill of Rights increased the Federal Government's powers over the States/People. It increased the Federal and State COURT's (not Congress') power over the States (but not the people, since the BOR restrained governments, not people). Until the 14th Amendment came, Congress was rightly unable to legislate and meddle with State due process, in spite of the Supremacy clause or the Bill of Rights. It has been the 14th Amendment section 5 and the black (Hugo, that is) death on wheels incoproration doctrine that has truly caused the Bill of Rights to "increase the federal government's powers over the states."

The Supremacy clause, not the BOR, is what Mason and I say "increased the federal government's powers over the states/people".

If VA had some restrictions on RKBA, they probably would have been construed by any federal court of that day to be in keeping with the 2nd Amdnement.

350 posted on 07/21/2004 12:30:16 PM PDT by H.Akston
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To: H.Akston
"Again, I do NOT contend that the Bill of Rights increased the Federal Government's powers over the States/People.
It increased the Federal and State COURT's (not Congress') power over the States"

Mason would be very distressed if the BOR were interpreted to increase the power of the judicial branch of the federal government over the states.

Of the federal judiciary's proposed powers under Article 3 ( which deliberately did not give the federal courts any power to interfere in disputes between a citizen and his state as your view of the BOR does) he said:
"When we consider the nature of these courts, we must conclude that their effect and operation will be utterly to destroy the state governments; for they will be the judges how far their laws will operate. They are to modify their own courts, and you can make no state law to counteract them. The discrimination between their judicial power, and that of the states, exists, therefore, but in name.
To what disgraceful and dangerous length does the principle of this go! For if your state judiciaries are not to be trusted with the administration of common justice, and decision of disputes respecting property between man and man, much less ought the state governments to be trusted with power of legislation. The principle itself goes to the destruction of the legislation of the states, whether or not it was intended.
As to my own opinion, I most religiously and conscientiously believe that it was intended, though I am not absolutely certain. But I think it will destroy the state governments, whatever may have been the intention.
There are many gentlemen in the United States who think it right that we should have one great, national, consolidated government, and that it was better to bring it about slowly and imperceptibly rather than all at once. This is no reflection on any man, for I mean none. To those who think that one national, consolidated government is best for America, this extensive judicial authority will be agreeable; but I hope there are many in this Convention of a different opinion, and who see their political happiness resting on their state governments.
I know, from my own knowledge, many worthy gentlemen of the former opinion.
[Here Mr. Madison interrupted Mr. Mason, and demanded an unequivocal explanation. As these insinuations might create a belief that every member of the late federal Convention was of that opinion, he wished him to tell who the gentlemen were to whom he alluded.]
Mr. MASON then replied, I shall never refuse to explain myself. It is notorious that this is a prevailing principle. It was at least the opinion of many gentlemen in Convention, and many in the United States. I do not know what explanation the honorable gentleman asks. I can say, with great truth, that the honorable gentleman, in private conversation with me, expressed himself against it; neither did I ever hear any of the delegates from this state advocate it.
Mr. MADISON declared himself satisfied with this, unless the committee thought themselves entitled to ask a further explanation. "

No, we must agree that Mason definitely never intended to give the federal courts any powers over the states; and that he would not silently accept any claim that the BOR he fought for had done so.

There is just no way to square the use of the supremacy clause to expand any federal power or any federal branch's power with the intent of the Bill of Rights.

Some very few ( they would have to be called 'activist' or innovative) judges did try to exercise a power to enforce the federal BOR upon their own state. Most did not, even before Barron.
That idea had never had any support from the Founders, the states, or people in general. That shows how much views have changed in 200 years.

356 posted on 07/21/2004 4:53:32 PM PDT by mrsmith ("Oyez, oyez! All rise for the Honorable Chief Justice... Hillary Rodham Clinton ")
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