[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?

[Carry_Okie]

This is the article I mentioned in at the Young Republican event Saratoga.

[Cicero]

Extremely interesting. I have to get to church, but I'll be back for another look. Many very nice points.

[inquest]

Does he think that a headnote should carry the force of precedent if it has long been cited as such?

That one should provoke a very interesting response.

[sageb1]

Thanks for posting this. I've read it through once and will hang on to it for future reference. The questions you posed should be food for thought and discussion for all of us here.

One question you asked was:

"Given that Islam specifically mandates imposition of Sharia law in conflict with the Constitution, what are the limits to the free exercise clause?"

I've posted a similar thought in various threads on Islam and its compatibility with democracy/freedom in the past few months. You are correct. Islam IS its own state with its own sharia law, therefore, it is my contention that American Muslims are riding a very fine line indeed in this country, as per the Constitution, no state can be formed or exist within a state. (exceptions being Native Americans and Alaskans and of course, this is what native Hawaiians are clamoring for). However, no similar claim can be made by Islamists and sharia law courts in this country would be unconstitutional.

[Dog Gone]

For a non-lawyer, you certainly do have an exceptional grasp of the competing principles at play between the 10th and 14th Amendments and how they have trickled down to American society and jurisprudence today.

For most of the last 60 years or so, the 10th Amendment has been down on the canvas listening to referee count to (ironically) ten. There have been some indications lately, though, that it might not be knocked out entirely. The Supreme Court in Lopez ruled ten years ago that the power of the federal government is not supreme over the states simply based on the Commerce Clause of our Constitution. That, in conjunction with the 14th Amendment, had bulldozed any notion of states' rights for decades.

Nevertheless, the 10th Amendment is still routinely disregarded by federal lawmakers all the time, and the Supreme Court has done very little to bring a halt to that.

The doctrine of selective incorporation of the Bill of Rights to the states by the Supreme Court is a legal oxymoron. I don't know of a single legal scholar who can defend it unless they are wearing a partisan hat. Either all of the Bill of Rights are incorporated to the various states, or none of them are. You can't make a decent legal argument for a different interpretation and the fact that someone doesn't like guns is not a legal argument.

Excellent essay, CO. We only agree about 98% of the time, but you're my candidate for Free Republic's Man of All Seasons.

[Constitution Restoration Act]

"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?"

Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment. ONLINE BOOK IN .PDF format.
http://oll.libertyfund.org/Home3/Book.php?recordID=0003

It is the thesis of this monumentally argued book that the United States Supreme Court - largely through abuses of the Fourteenth Amendment to the Constitution?has embarked on "a continuing revision of the Constitution, under the guise of interpretation." Consequently, the Court has subverted America’s democratic institutions and wreaked havoc upon Americans’ social and political lives. One of the first constitutional scholars to question the rise of judicial activism in modern times, Raoul Berger points out that "the Supreme Court is not empowered to rewrite the Constitution, that in its transformation of the Fourteenth Amendment it has demonstrably done so. Thereby the Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny, an awesome exercise of power." This new second edition includes the original text of 1977 and extensive supplementary discourses in which the author assesses and rebuts the responses of his critics.

[rec]

"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?

Hardcore. You made me have a "Goldwater flashback". :-?