[Carry_Okie]

I wrote this in order to evoke the serious questions that need to be asked of John Roberts, as well as to bring into discussion what I have seen to be conservative hypocrisy as regards Kelo.

Please consider the links, as several are of historical import.

[Carry_Okie]

I think it important that FReepers start composing legitimate questions to be asked of Judge Roberts:

• What does Judge Roberts believe was the purpose of the Fourteenth Amendment, was it to incorporate the Bill of Rights against the States or was it to bar racial discrimination by State and local government?
• Does incorporation apply to the whole Bill of Rights? If not, does he subscribe to selective incorporation? What does he regard to be the exceptions?
• Upon what bases does Tenth Amendment Federalism outweigh the Federal power to determine what constitutes equal protection?
• Does he think that a headnote should carry the force of precedent if it has long been cited as such?
• What are his standards for determining settled law versus overturning it?
• How does he weigh the establishment clause against free exercise? If the establishment clause applies only to Congress, is it legitimate to use it to override a State Constitution?
• Given that Islam specifically mandates imposition of Sharia law in conflict with the Constitution, what are the limits to the free exercise clause?
• Does the free exercise clause permit sedition or treason?
• What limits are there upon free association?
• Do the President and the Senate have the lawful power to conclude treaties the scope of which entails enforcement powers that exceed those enumerated in the Constitution? If such can be proven, is said treaty void?

[MACVSOG68]

bump for reading later

[gatex]

"They’ll just say that the original intent was to leave gun control up to the States "

They have already said it in two USSC cases --- Cruikshank and Presser.

Congress uses Interstate Commerce for gun control.

[Carry_Okie]

FYI

[Issaquahking]

Ping for later read...

[hombre_sincero]

May I reprint your essay on a few web sites? (They are not commercial)

It would look like this one:

http://www.gohotsprings.com/usa/modules.php?op=modload&name=News&file=article&sid=951

I made sure to add your website link and plug for your book also.

[hombre_sincero]

If I could talk our local "AP / NYT affiliate" newspaper her to print this essay in their editorial section, would you give it a release for reprint?

Sometimes the editor here will "stomp the toes" of her MSM masters and print an opposing (to liberals) viewpoint - but ONLY in the editorials section.

[billbears]

Janice Rogers Brown is that you? LOL, really though excellent article, have read this argument, or at least discussion of both sides, several times from more learned conservatives (non-Republicans) since the Kelo decision

It's clear, to me at least, the 14th Amendment's incorporation theory is false and the Bill of Rights is separate only to apply to the federal government

[Old Professer]

For example, if a group chooses to get together as a church, they rightly have the option to exclude those who express the intent to corrupt the principals and practices of that faith;

You did mean principles, didn't you?

[Fiddlstix]

[MamaTexan]

IMHO, the fourteenth Amendment is nothing more than a bogus legal illusion....

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

There are actually THREE reasons this Amendment is a legal AND lawful impossibility:

__________________________________________________________

1. As you said, the words 'person' and 'natural person' are two totally different things. A 'natural person' is a human being, and a 'person' is an artificial person, or corporation.

Black's Law Dictionary ;
"natural person" : A human being, as distinguished from an artificial person created by law.
"artificial person" : An entity, such as a corporation, created by law and given certain legal rights and duties of a human being.

Government does NOT have the ability to attempt to blend the two disparate types of *law* (natural law / positive law) that comprise our Republic. It is ultra vires, or beyond governments legal scope of power and authority.

__________________________________________________________

2. The 'jurisdiction' of the United States government is given in the Constitution in Article 1, section 8, paragraph 17:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

So no one is subject to the legal 'jurisdiction' of the federal government OUTSIDE of Washington D.C., or any military base or port.

__________________________________________________________

3. There is a HUGE legal difference between the terms 'citizen of the United States' and a United States citizen.

The First term was originally 'a citizen of one of these united States', meaning they were a State Citizen.

Today, everyone answers yes when asked "Are you a US citizen?" on those pesky government forms. What hardly anyone realizes is that a US Citizen is, by *law*, a fictitious artificial creation that places you in the ASSUMED jurisdiction of the United States government....a jurisdiction that IS legally binding UNLESS you refute it for lacking knowledge, consent and full disclosure..

-----------------------------------------------

"A citizen of the United States is a citizen of the federal government ..."
(Kitchens v. Steele 112 F.Supp 383).

______________________________________________________________________

"... a construction is to be avoided, if possible, that would render the law unconstitutional, or raise grave doubts thereabout. In view of these rules it is held that `citizen' means `citizen of the United States,' and not a person generally, nor citizen of a State ..."
U.S. Supreme Court in US v. Cruikshank, 92 US 542:

______________________________________________________________________

In 1887 the Supreme Court in Baldwin v. Franks 7 SCt 656, 662; 120 US 678, 690 found that:
"In the constitution and laws of the United States the word `citizen' is generally, if not always, used in a political sense ... It is so used in section 1 of article 14 of the amendments of the constitution ..."

______________________________________________________________________

The US Supreme Court in Logan v. US, 12 SCt 617, 626:
"In Baldwin v. Franks ... it was decided that the word `citizen' .... was used in its political sense, and not as synonymous with `resident', `inhabitant', or `person' ..."

______________________________________________________________________

14 CJS section 4 quotes State v. Manuel 20 NC 122:
"... the term `citizen' in the United States, is analogous to the term `subject' in the common law; the change of phrase has resulted from the change in government."

______________________________________________________________________

U.S. v. Rhodes, 27 Federal Cases 785, 794:
"The amendment [fourteenth] reversed and annulled the original policy of the constitution"

______________________________________________________________________

Hague v. CIO, 307 US 496, 520:
"... the first eight amendments have uniformly been held not be protected from state action by the privileges and immunities clause" [of the fourteenth amendment]

__________________________________________________________

So you see, Fourteenth Amendment citizens are NOT protected by the Bill of Rights. The Amendment was written NOT to 'free the slaves' but so that our government could skirt the 'Congress shall make no law' parts of the Constitution and, consequently, enslave us all.

[Frank_2001]

Excellent article!

[musanon]

You wrote:

The Preamble to the Bill of Rights stated the purpose of those Amendments with an appropriate tone of warning, "in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added." Further restrictive clauses, for an already limited government, to prevent abuse of power.

Article VI is one of the restrictive clauses in the original document. It clearly says that all "Officers, both of the United States and the several States, --" shall be "-- bound thereby, any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding."

Among these restrictive clauses was the Tenth Amendment, which reserved all powers, not enumerated in the Constitution, either to the States or to the people. It was a simple one-liner. Nothing could be clearer.

Clear indeed. It says, boldly:
" --- The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. -- "

Note that prohibitions are placed on States, not only in the original document, but in its Amendments, as enumerated.

The Tenth Amendment was the key to Federalism. Its constraints empowered a hierarchy of representative governments with accountability kept local to the people, which effectively kept injustices confined to the smallest possible scope, albeit with little recourse.

Recourse is enumerated in Article III, whereby the USSC has jurisdiction to try all cases " -- arising under this Constitution, -- ".

The Tenth also permitted wide differences in State laws. If the people of a State wanted a government religion, the Tenth Amendment permitted that.

Not true. Congress was stopped from making laws " -- respecting an establishment of religion, -- "; -- but Article VI said that " -- no religious test shall ever be required as a Qualification to any Office or public Trust under the United States -- ". Government religions are a de facto religious test.

If a State wanted to regulate speech, or to socialize private property, the Constitution was mute.

Not true. Abridging of speech is prohibited to States under the 1st, as per Article VI.

None of the rights articulated in the Bill of Rights could be enforced by the national government in Federal Court.

So claimed the States rightists. In reality violations of all of the rights articulated in the Bill of Rights could be brought before the Supreme Court, if they found cause under the Constitution to hear them.

If the people didn't like the government of a particular State and couldn't change it, their principal recourse was the freedom to move and apply their energies in another State.

No, -- their "principle recourse" against a rogue state was the "Law of the Land". If that recourse failed, the right to rebel came into play. - We had just fought a revolution against a tyrant that said 'love English law or leave'. -- It is amazing for you to claim we gave our State governments that same tyrannical power, enshrined in our Constitution.

[nickcarraway]

BUMP

[Tunehead54]

Very interesting read - now for extra credit compare and contrast the usage of the 14th amendment and the commerce clause in federalising state issues and explain what happened to the 9th and 10 Amendments! (I know you covered the tenth but how can such plain language be so marginalized?

---

;-)

[Kevin OMalley]

read later bump... I'm glad to see that koan was defined at the beginning.

[FOG724]

Bump

[hedgetrimmer]

Excellent article. Your comments on the 14th amendment are very informative.

[planekT]

Ping for later.

[MissouriConservative]

"That Article passed in the House but then failed in the Senate (then consisting of the appointees of State legislatures). The Anti-Federalists had got their way."


That sentence right there sums up why we have the trouble we have today. Our founders set it up that Senators be accountable to the States, it gave the States more leverage and say so in the way the federal government operated. Now the Senators have no accountability, they have no ties to those outside the beltway, unless it's an election year and they need campaign material (get that picture taken with the farmer and his Mrs). They are beholden to the special interests and the 527s.

The first thing that needs to be done is to repeal the 17th Amendment that calls for direct election of Senators