[musanon]

At #470, you admitted that Barnett's article was "pretty good". -- I suggest you reread it, as he explains the position in detail.

I read it and agree with the major thrust of his argument about the nature of rights, but only with regard to federal powers.

Our constitutional rights are to be upheld by -all- empowered officials in the USA, fed/state or local. You need to reread Article VI, which you consistently ignore.

The two words "equal protection" of the 14th cannot be so easily construed to dissolve the retained unnamed powers of the states.

Who has claimed that?
-- Barnett claims that the 14th 'fundamentally changed' the ability of States to make laws abridging our rights to life, liberty or property without due process. He is correct.

The idea that states must show how each law is directly needed to protect a right just does not wash.

Laws cannot be written that abridge or infringe upon our rights. So says the 14th. -- You refuse to abide by the 14th? Fine.

In fact, this standard is not even a very good one for federal law. The test for federal law is whether it is Constitutionally authorized. The burden does fall on all levels of government to prove it has not violated an enumerated right.

Under the due process clause, that 'burden' is obvious. Laws written that violate our rights also violate due process.

For example, what right is protected by raising taxes?

Weird example. Who claims a 'right' is being violated? -- The governments power to tax is constitutionally enumerated. A violation of that power would violate the Constitution, not a human right.

The only argument, by your standard, is that taxation is a necessary evil. Well, guess what, anything can be called a necessary evil.

Again, weird.. You are arguing a position I haven't even made.

Taxation does not protect any specific enumerated or unenumerated right. It is, however, Constitutional because this power is specifically retained.

No kidding.

This power is also not prohibited to the individual states. This is why States can raise taxes, not because taxes protect rights.

Feel free to tell someone who thinks "taxes protect rights".

The power to punish crime does not protect rights directly. It is a power retained to the federal government for certain causes and not prohibited to the States. (Although there are limitations to this power.)

Tell someone who needs your lecture.

Barnett:
"As we all know, this arrangement was fundamentally changed by the enactment of the fourteenth amendment after the civil war. Today, if a state government infringes upon a right the people retained against their respective states, there is no jurisdictional barrier preventing federal protection of this right."

Not exactly. Federal government has the power to be sure that states protect each person within their respective jurisdictions equally. That means a state cannot make one set of laws for white people and another set for black people. It does not give federal government jurisdiction over rights and powers not enumerated. It only concerns equality.

-- All the privileges, immunities & rights to life, liberty, or property mentioned by the 14th are enforceable, according to its last clause.
-- But of course, you simply reject that concept. -- Have you ever sworn an oath to support the Constitution? -- Did that include support for the BOR's & the 14th?

[unlearner]

"Our constitutional rights are to be upheld by -all- empowered officials in the USA, fed/state or local. You need to reread Article VI, which you consistently ignore."

I agree that all levels of government must not violate our rights whether enumerated or not. The problem is with who determines what a right is and when it has been violated. Many believe abortion is a right. I would argue that it is an invented "right".

My point is that the government, at all levels, does not bear a burden to show that every law directly protects actual rights. Laws do exist that don't serve the function of directly protecting rights - such as taxation and criminal punishment and a military draft. The burden of proof is whether a law is Constitutional. Violating a REAL right would be unconstitutional.

"Barnett claims that the 14th 'fundamentally changed' the ability of States to make laws abridging our rights to life, liberty or property without due process."

It expands federal jurisdiction beyond merely the right to jury trial, etc. Where we differ is the handling of unenumerated rights. For federal courts to rule on unenumerated rights is unconstitutional because it is not in their jurisdiction. (Due process is a specifically enumerated right, not a way of lumping all other rights into federal jurisdiction.)

Local laws must be presumed to abide by due process as long as they do not violate the U.S. Constitution or the particular state Constitution.

"Who claims a 'right' is being violated? -- The governments power to tax is constitutionally enumerated. A violation of that power would violate the Constitution, not a human right."

Ownership is a right. Unauthorized taxation is a violation of it. The federal government has Constitutional authority to tax. Where do States get the power to tax? It is an power not prohibited and therefore permissible. Otherwise my state would be violating my right of ownership to tax me without specific authorization.

"you simply reject that concept. Have you ever sworn an oath to support the Constitution? -- Did that include support for the BOR's & the 14th?"

I reject your interpretation of the 14th to encompass unenumerated rights. You come across as if disagreeing makes me unpatriotic.