The Federalism Debate [And 'States Rights']

Cato Institue ^ | 10/28/04 | Rodger Pilon

[Drammach]

You're right... You are no connoisseur of law. It is NOT a prohibition of what we are talking about -- civil liberties and such. It does not, for example, prevent a state from establishing a church or engagin in censorship. Sorry.

Sorry you've lost the concept of "civil debate"..
I probably wouldn't have bothered to respond if you had left out the snide remark..

Art. VI, by extension, DOES involve civil liberties..
As per your earlier arguments, you are discussing the Original Consitution, w/o the Bill of Rights..

Under such construction, Any Law passed by Congress, "pursuant to the constitution" is the "Supreme Law of the Land" and, "The Judges in every State shall be bound thereby"..

Therefore, the Congress could pass federal law on any and all Civil Rights and the states would be bound to obey that law..
You are correct that, w/o the Bill of Rights, there was no prohibition against states doing what they wished concerning the creation of a state church, or engaging in censorship, either of the individual, or the press...
However, there was also no prohibition against the congress passing such laws as well, pro or con those issues.. and the states then being legally bound to respect those laws...

Article VI is therefore a prohibition on the states.. a very broad prohibition stating in effect, "we're the new guys in town, and you're going to have to do as we say."..

[Drammach]

The failure is in defining the 2nd Amendment and enforcing that right as an individual right that cannot be infringed upon by any state.

While I agree with your sentiment, I must disagree on grounds of interpretation..

The 2nd amendment only prohibits infringement of the individual's RKBA, it does not grant that Right to the People.
The principle that "the people" have an "inalienable" right to keep and bear arms is an implicite admission in the 2nd amendment..

Also, ONE REASON stated is that the people, individually or as a group, (militia) be able to defend themselves, the state or the nation in times of emergency..
( I classify an "emergency" as someone attempting to assault or murder me, my family, freinds, or innocent bystanders, especially if a law enforcement officer is not present to resolve the situation.. if an LEO is present, I can still assist..)

I don't have any problem with "defining" RKBA as an individual right, I believe that it is..
My problem is using the 2nd amendment to define that right..
The 2nd is just about prohibiting interference with that right.. not the right itself..

[fortheDeclaration]

Thanks for the post.

The context of that post was, why wasn't the Federal gov't making all gun control laws illegal?

We do not allow slavery anymore, so why not gun control laws.

They have not done so because they do not see the Bill of Rights in terms of natural law anymore.

Thus, these rights are now defined in a positivist way.

Had not a philosophical change occurred in the beginning of the 20th century, it is possible that the Federal gov't would have ensured that the 2nd amendment was protected in all 50 states.

State rights (in this case 'local rights') are now being used to deprive individuals of that right in DC and the Congress is trying to overturn that ban based on the Bill of Rights seen as a natural law.

You will see Conservatives join with liberals to resist overthrowing this ban because of what they call Federal ínterference'.

This view is based on a misquided notion that a State has a right, rather then the natural law view that the State only exists to protect the rights of individuals.

[Drammach]

Hopefully, we are seeing another "philosophical change", this time among the people..

The reversal of gun prohibitions among the individual states is a good sign.. and an indication that many individuals have come to the conclusion that gun control is "just wrong"..

While I tend to agree with the argument that the 2nd is "all encompassing", according to it's literal interpretation, I understand there may be historical context that might possibly interpreted to limit it's context to one group or another.
The problem is, it is not limited to either one..

While some argue that "state's rights" provide immunity from the prohibition to infringe on RKBA, there seems to be no enforcement of that prohibition on the federal government as well..

Just my personal opinion, I'm no historical scholar, just a "voluntary student", so to speak..
States no more have "rights" than does the Federal Gov..
They both have "powers", granted to them by the people..
And the people can take those powers away just as quickly as they grant them..

[fortheDeclaration]

While some argue that "state's rights" provide immunity from the prohibition to infringe on RKBA, there seems to be no enforcement of that prohibition on the federal government as well..

Actually there is, the combined efforts of the people through the states.

That is the problem that the homosexual are having, they are being rejected in almost every state.

Hence, they have to find activist judges to bypass the rejection of their agenda on the state level.

Moreover, the rejection of that agenda on the state level translates into the Federal gov't hesitating to push it.

Gun control laws have become so 'hot'now that neither Party will touch them.

Kerry has to go hunting to show he is not a gun grabber.

This is due to the combined power of the people through the states.

We can also put in pro-gunners who will aggressivly attack federal gun laws and get rid of them as we did recently.

Just my personal opinion, I'm no historical scholar, just a "voluntary student", so to speak.. States no more have "rights" than does the Federal Gov.. They both have "powers", granted to them by the people.. And the people can take those powers away just as quickly as they grant them..

Exactly right, there is no thing as 'states rights' only state powers and responsibilities.

All gov't is dangerous and must be held in check by the people, at all levels.

[tacticalogic]

You are correct that, w/o the Bill of Rights, there was no prohibition against states doing what they wished concerning the creation of a state church, or engaging in censorship, either of the individual, or the press... However, there was also no prohibition against the congress passing such laws as well, pro or con those issues.. and the states then being legally bound to respect those laws...

I think the absence of any enumerated power giving Congress authority over those constitutes a prohibition. The BOR just stated explicitly what was already there implicitly.

[RayStacy]

This is not true. Because of the ENUMERATION, the federal govenment was not empowered to pass laws concerning civil liberties. This is conservative constitutional lesson 101. The enumeration is EVERYTHING!!!!! W/out the enumeration congress COULD do anything it wanted, could indeed pass legislation on any subject at anytime, whatsoever period. Thanks to the enumeration, it could not do it. ART VI merely says that if the FED g. passes a law WHICH IT IS LEGALLY ENTITLED TO PASS, taxing for the military, say, then the states must follow, as the CONS is the supreme law of the land. ART 6 DOES NOT SAY, that the FED GOV may pass any law that it pleases, laws concerning, say, civil liberties, or gun control. TODAY, thanks to citizen ignorance, Congress can of course pass any legislation at any time on any subject that it sees fit. And that is very sad. By the way, I wanted to be civil, but I detected sarcasm in your response, so I responded in kind. I apologize if you had not intended sarcasm.

[robertpaulsen]

"The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding"."

"This is a fact, not my interpretation."

A fact? You wouldn't know a fact if it bit you in the a$$ -- that was NOT what the framers wrote. The only way you can make your point is to distort the truth.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.

Any Constitutional federal law is the supreme law, and supercedes any state law.

The Constitution itself is not a "Law" -- it provides a framework for laws.

[tacticalogic]

A fact? You wouldn't know a fact if it bit you in the a$$ -- that was NOT what the framers wrote. The only way you can make your point is to distort the truth.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.

Any Constitutional federal law is the supreme law, and supercedes any state law.

The Constitution itself is not a "Law" -- it provides a framework for laws.

I don't think so. That comma after Constitution is significant. It means that the Constitution and the "the laws of the United States which shall be made in pursuance thereof" are separate entities.

The Constitution ... shall be the supreme law of the land

and

the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land

The Constitution cannot be the supreme law of the land, and not be a law.

[robertpaulsen]

"Your logic trumps even your grasp of our history. Well said."

Logic??? Drooling, mindless babbling is more like it.

"The Constitution is unconstitutional"! What is that? Maybe you understand that pap -- I don't.

An amendment is part of the Constitution. It is the Constitution.

[robertpaulsen]

"there seems to be no enforcement of that prohibition on the federal government as well.."

The federal government has never been challenged on second amendment grounds -- hence, no enforcement.

The 1994 Assault Weapons Ban, for example, was challenged in federal court in 1995 by Navegar Inc. (TEC-DC9 and TEC-22) and Penn Arms Inc. (Strike 12) as a violation of Congress' Commerce Clause authority, not as a violation of the second amendment.

[tpaine]

The framers wrote in Article VI that our Constitution is the "Law of the Land", -- the "Laws of any State to the Contrary notwithstanding".

This is a fact, not my interpretation.

--- that was NOT what the framers wrote.
"This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land ..." Get it right for once.

I got it right the first time, as anyone who can read & reason would acknowledge. You are being pedantic & supercilious, as usual.

Any Constitutional federal law is the supreme law, and supercedes any state law.

Good of you to finally admit it.

The Constitution itself is not a "Law" -- it provides a framework for laws.

There you go again, directly contradicting the clear words of Article VI.

"This Constitution, ... shall be the supreme Law of the Land ..."

[tpaine]

Eastbound wrote:

Article VI, para 2, as we all are aware of by now, is the supreme law of the land. At least it delineates how the supreme law should be applied.

In that we the people wrote the constitution to provide a mechanism to secure our rights, it should be self-evident that our rights are the supreme law. Why should be write a constitution that removed our rights?

Well, we didn't.
We just got through fighting the king's men to proclaim them.

So life, liberty and the pursuit of happiness was the promise of the American Revolution. The right to self-determination and personal sovereignty. Every man a king under his own fig tree. (generically speaking, these days.)
Our charter was worded to express that ideal. In that individuals sometimes encroach on another's rights or space, we created a legal mechanism to punish each other when we went astray.

In the simple wording and logic of Article VI, para 2, (the supremacy clause) it is shown that neither the state nor federal government can infringe upon or impair that ideal, as Congress can make no law which is not in pursuance to that ideal. Nor can the state.

Otherwise there would have been no need for the American Revolution.
That is about as historical as I'm going to get right now.
160 Eastbound

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Your logic trumps even your grasp of our history. Well said.

Let the robertpaulsen type bozos of FR read your words and weep for their ignorance.
163 tpaine

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robertpaulsen wrote:

Logic??? Drooling, mindless babbling is more like it.

"The Constitution is unconstitutional"! What is that?

Maybe you understand that pap -- I don't.
An amendment is part of the Constitution. It is the Constitution.

______________________________________


Paulsen, you quoted "The Constitution is unconstitutional". --- As if someone here wrote that. No one did.

And imo, calling Eastbounds post #160 "Drooling, mindless babbling" is getting beyond the pale.
I suggest you get control of your emotions.

[robertpaulsen]

"Joe, why do you want States to have the power to infringe upon our individual liberties?"

If the citizens of the individual states wanted to limit their state government, all they had to do was pass a state constitutional amendment.

They would certainly not come up with some convoluted scheme that sets up a federal government, include an Article VI which only tpaine and tacticalogic think apply the document to the states also, ratify a BOR two years later that SPECIFICALLY says "Congress shall make no law ..." and say it also applies to the states.

Riddle me this. If the Constitution also applied to the states, then Article I, Section 9 (No bill of attainder or ex post facto Law shall be passed) also applied to the states, correct?

Then why the need for Article I, Section 10, which says, " No state shall ... pass any bill of attainder, ex post facto law, ..."?

[inquest]

Those were real points. The fact that you call it nitpicking demonstrates your cluelessness even further. Keep it up.

[robertpaulsen]

"As if someone here wrote that. No one did."

Nice strawman -- "as if".

I never said they wrote it. Is an amendment part of the constitution? And if someone says an amendment is unconstitutional, aren't they saying the constitution is unconstitutional?

Go back to bed.

"And imo, calling Eastbounds post #160 "Drooling, mindless babbling" is getting beyond the pale."

Sorry. I meant to say, "Drooling, mindless, idiotic babbling".

[tpaine]

The federal government has never been challenged on second amendment grounds -- hence, no enforcement.
191

Bull. Such challenges have been made, but the USSC has refused to hear them.

[tpaine]

paulsen, why do you want States to have the power to infringe upon our individual liberties?

If the citizens of the individual states wanted to limit their state government, all they had to do was pass a state constitutional amendment.

The 'moral' majority in CA prevent gun owners here from passing a RKBA's type Amendment to the CA Constitution. -- Do you find such majority rule acceptable?

They would certainly not come up with some convoluted scheme that sets up a federal government, include an Article VI which only tpaine and tacticalogic think apply the document to the states also, ratify a BOR two years later that SPECIFICALLY says "Congress shall make no law ..." and say it also applies to the states.

Sigh.. For the umpteenth time, -- "Congress shall make no law ..." applies only to the 'establishment' clause.-- A point Justice Thomas reiterated in his last opinion, and we all argued over. You lost that debate as usual.

Riddle me this. If the Constitution also applied to the states, then Article I, Section 9 (No bill of attainder or ex post facto Law shall be passed) also applied to the states, correct? Then why the need for Article I, Section 10, which says, " No state shall ... pass any bill of attainder, ex post facto law, ..."?

Section 9 is specific to Congress, Section 10 to States. -- No riddle.

[tpaine]

Rest assured, I keep it up as much as possible.

[inquest]

Section 9 is specific to Congress

How can you say that? Section 9 is part of the "supreme law of the land" from Article VI that you constantly point out - "anything in the laws or constitutions of the states to the contrary notwithstanding". How can you say that states can violate it?