Constitutional Myths and Realities

Hillsdale ^ | August, 2005 | Stephen Markman

[Borges]

And practically speaking, until 1925, the Bill of Rights was not even thought to apply to the states, only to Congress; yet the individual rights of our citizens remained generally well protected.

Anyone know what the specific case was here?

[TXnMA]

This is deserving of several careful re-readings. But, based on a first-pass scan, I would say that the author would seem to be acceptable as an appointee to the SCOTUS.

[Non-Sequitur]

bump

[Irontank]

the 1925 case was Twining vs. NJ...the fiction of incorporation is truly one of those momentous powergrabs by the federal government (particularly the federal courts) that remains unchallenged by most Americans

Incorporation of the BOR, which makes virtually every state law reviewable by a federal court...along with the end of the War of 1861...the ratification of the 17th Amendment and the end of any recognized limits on the Constitutional powers of the federal government (i.e. illegal abuse of the Commerce Clause) has so dramtaically centralized and expanded the power of the federal government and diminished the liberty of the American people...for the most part, without the American people even realizing it.

This Christmas, when your local school decides that it will put on a "Winter Holiday" concert rather than a Christmas concert so as not to run afoul of the First Amendment...remember that, Constitutionally...the First Amendment does not apply to the states...regardless of what 5 judges might have ruled in the Everson case...and regardless of the fact that this phony ruling is now just passively accepted

[Borges]

Without it though doesn't that make it possible for a state to declare themselves the Islamic Republic of (insert state name here) and declare Sharia law?

[elbucko]

“state’s rights” are truly rights only where an examination of the Constitution reveals both that the national government lacks the authority to act and that there is nothing that prohibits the state governments from acting.

I stopped reading at the above sentence. There is no such thing as "states' rights", implied or otherwise. Only human beings have "rights", states or governments have "powers". The moron who wrote the above has not read the Constitution with any eye for detail. "Rights" are always used when referring to "persons" or "the people" and never with the state of federal government. The term, "powers" is always used in reference to the authorities of the federal or state government that the people have the "right" to confer upon government. The terms are never interchanged or confused by the text of the Founding Fathers. The only entity in the Constitution that possess both "rights" AND "powers" are the people.

Until Americans comprehend the concepts of the differences between "rights" and "powers", we will always be subject to the linguistic acrobatics of shyster lawyers and ambitious politicians.

And before anyone refers me to the 9th. and 10th. Amendments, read them as they are written, not in paraphrase. The 9th and 10th. are consistent in the use of the words "rights" and "powers".

[ZGuy]

"Redress for unwise public policies must generally come as the product of democratic debate and at the ballot box, not through judicial correction. "

"Heresy! Heresy!" -- Joe Liberal

[Borges]

Isn't it this case then? case...

http://en.wikipedia.org/wiki/Gitlow_v._New_York

[american spirit]

"Linguistic acrobatics of shyster lawyers and ambitious politicians".......no truer words were ever spoken and it's a shame most Americans never realize just bad this system puts the screws to 'em on a daily basis.

Also, I found it interesting that the author didn't delve too long on the issue of "public policy" which seems to be the antithesis of a republican form of gov't. As I understand it, public policy operates under "color of law" which is much different animal than the system we're supposed to have.

Isn't it also interesting that we have public policy created by "executive orders", codes, regulations, etc. at different levels........all of which have NO constitutional provision.

Along these same lines, we also have a Federal Reserve bank, fed'l control of education, transportation, communications, a progressive income tax, etc. NONE of which are provided for in the Constitution but are the basic tenets of the Communist Manifesto..........how do ya supposed that happened?

[Just another Joe]

Our Constitution would be an historical artifact—a genuinely dead letter—if its original sense became irrelevant, to be replaced by the views of successive waves of judges and justices intent on “updating” it, or replacing what some judges view as the “dead hand of the past” with contemporary moral theory. This is precisely what the Founders sought to avoid when they instituted a “government of laws, not of men.”

The Constitution is dead!
Long live the Constitution!

[antiRepublicrat]

I stopped reading at the above sentence.

I understand your point, and it is an important semantic one. But at least here he first defines it as "all of the rights of sovereignty retained by the states under the Constitution," which makes it less egregious.

Despite that bit I suggest reading further, as it's pretty good.

[musanon]

the fiction of incorporation is truly one of those momentous powergrabs by the federal government (particularly the federal courts) that remains unchallenged by most Americans

On the contrary, most Americans that oppose 'states rights' also oppose so-called incorporation doctrine. -- The Bill of Rights has always applied to State/local governments; -- as they are bound to support the Constitution by Article VI.

Incorporation of the BOR, which makes virtually every state law reviewable by a federal court... has so dramtaically centralized and expanded the power of the federal government and diminished the liberty of the American people..

State laws that are repugnant to the Constitution, laws that violate or infringe upon the rights of the people, can be challenged in Federal courts and have been since the early days of the republic. --
-- The fact that the federal courts have "centralized and expanded the power of the federal government" is a political problem, one that can be best addressed by using state powers to fight fed expansions.
--- Instead, state politicians cooperate with fed politicians in ignoring our Constitution. -- This Michigan judge is a perfect example of such a 'big government majority rules' politician.

[moehoward]

Bump

[antiRepublicrat]

we have public policy created by "executive orders", codes, regulations, etc. at different levels........all of which have NO constitutional provision.

Regulations do have a constitutional provision in "necessary and proper." If they believe it is necessary to delegate authority to the Executive for a regulation, then it's constitutional. However, I'm not sure of any constitutional basis for executive orders.

[Natural Law]

State's Rights historically refer to those rights secured at the state level.

[general_re]

However, I'm not sure of any constitutional basis for executive orders.

It's not specified as such, but it's generally accepted that as the head of the executive branch, the President directs the operations of agencies under his control, which he does so via executive orders - the vast majority of them are simply the President telling some executive agency to do such-and-such. When done via a congressional delegation of power, they can have the force of law, but otherwise it's like a memo from the boss if you're a government agency. Executive orders can be and are reviewed by the courts for constitutionality, most famously in the Youngstown case during the Truman administration.

[Sam Cree]

Read later. I agree with the first sentence.

[elbucko]

I found it interesting that the author didn't delve too long on the issue of "public policy" which seems to be the antithesis of a republican form of gov't.

Yes. "Public policy" is just a euphemism for making law without due deliberation of the consequences and without the power to actually make and enforce such laws.

In general, we agree. Government has convinced the populace that it has the "right" to do certain things. It does not. Government does not have the power to do many things that it claims it has rights to. When I have to deal with "city hall", I never refer to my "rights", but instead ask the clerk "where does the city have the power and where is this power written"? After the request is reviewed by the city attorney, many times, the city is found to be actually lacking the power or the means to grant it to themselves. This is one of the reasons that any reference to "rights", when referring to any government entity, sends a chill up my spine. When the US or any state government has "rights", we're all dead.

Kelo v New London, CT is an excellent example. The Constitution did not grant the city the power to take property for the purpose of revenue, the majority of the Supreme Court, however, thinks that the city of New London had the "right", above and beyond the individual right of private property, to take the land instead of raise taxes, which New London had the power to do. They just did not have the political courage to raise taxes. So they stole the property of the innocent.

The good people of New Haven CT would do well to turn out all of its city council come next election. The Supreme Court needs to be retired by Congress, which it has the power to do, and reconstitute it with new judges.

[american spirit]

I'm a little fuzzy on it but I think there needs to be an "implementing" regulation to make certain actions legal. Also, we've never found a const. basis for EO's......it's believed that EO's were intended to be used within the Executive branch only.....which makes sense. However, due to the utter incompetence of Congress, EO's are used to create public policy........without normal constitutional process of course so it allows a Pres. to use it in an almost dictatorial fashion.

Remember Paul Begala's famous line......."stroke of the pen, law of the land......kinda cool". It was bad enough to give Wild Bill that kind of power, can you imagine Pres. Hillary and her band of Saul Alinsky moonies that kind of power?