Posted on 10/24/2005 12:27:04 PM PDT by Hunterb
Nonetheless, it is settled law. I do believe that it happens to be good law.
The Bill of Rights has to extend to the states, otherwise it is meaningless. Prohibiting the Federal Government from banning handguns is meaningless if the states are allowed to ban handguns. Prohibiting the Federal Government from shutting down oppostition newspapers is meaningless if the states can shut down opposition newspapers.
Either these are rights retained by the people, or they are not. If they are retained by the people, the state can no more infringe upon them than the feds.
If that is the case then the "reserved to the states" clause of the 10th amendment is effectively repealed. And for that matter the "or to the people" is effectively repealed because the people cannot through their legislatures enact the powers that are reserved to them as provided by the 10th amendment. Therefore under your view, the 14th amendment reworded the 10th amendment as follows:
The powers not delegated to the United States by the Constitution,nor prohibited by it to the States,are reserved to theStates respectively, or to the peopleCourts.
The Courts can (or should, rather, since you want to talk about "my view") no more infringe upon rights retained by the people than the State or the Feds.
Now we're onto the Ninth.
I thought you said you read the 10th amendment. Go back and read it again. There is nothing in it about rights. It addresses powers.
Tyranny? Legalized prostitution, homosexual marriage....it sounds like you may need to move to Europe.
The 10th amendment address powers "retained by the states respectively, or the people." An example of a power retained by the people would be to enact a ban through referendum or state constitutional amendment (or through lobbying their state legislature) on homosexual marriage. However, the homo activists are attempting to get the courts to dictate that some heretofore undiscovered right exists within the constitution that would prohibit this power of the people via the 14th amendment. (Apparently your fondness of Marbury would support such a judicial dictate.)
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
That means that a right doesn't have to be listed in the Constitution to be a right. It greatly restricts you nanny staters, from the right or the left, from using the government to enforce your own personal version of morality.
I did. The I said "we're on to the Ninth."
That is the central conflict in our Republic - whether the powers given the people and their representatives in the Tenth overrule the rights acknowledged to the people in the Ninth.
Personally, I come down on the side of the Ninth. But then, I believe in freedom. The Tenth is the final refuge of the nanny state, and only the Ninth keeps us free.
Or one might posit: The Ninth is the final refuge of the anarchist, and only the Tenth keeps us civilized.
One might, but I doubt the Founders would agree with you. They valued freedom more than anything, even civility.
Men keep themselves civilized - our government is not charged with controlling our behaviors.
In a republican form of government guaranteed by the Constitution, the people govern through their representatives. While you deride those who advocate rules to govern behavior as "nanny-staters" the Tenth amendment reserved the powers to the states and the people to govern themselves so long as they do not violate the Constitution. If people are unhappy with the rules of one state, they can (a) lobby to have the laws changed, or (b) move to a state that has laws more to their liking. Unfortunately, in the age of Marbury, liberals and licentious activists who want to force their own ideas on the rest of us have found that when they can't win the battle of ideas at the ballot box they can have a friendly judge overrule the powers of the states or the people by discovering new "rights" in the Constitution. But the decisions are never based on the Ninth amendment, but rather on the 14th. You apparently like this arrangement as you have stated you think it is "good law".
The 14th amendment is very good taken at face value, in which it guarantees that states cannot violate the basic rights of its citizens.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Of course the problem arises when courts decide to expand these "privileges or immunities of citizens" to include the right to never be made uncomfortable, or the right to never be forced to view an expression of a religious thought on public property, or other such ridiculous notions never intended in the Bill of Rights nor in the 14th Amendment as drafted, debated, and ratified.
And I doubt they would agree that the ninth amendment extended to a Constitutional right to sodomize each other.
However, most of them subscribed to the laws of nature and of nature's God. Consequently, they probably would not object to laws restricting sodomy as somehow limiting freedom.
Of course I'm derisive - nanny staters believe that the government regulates personal behavior.
The laws to control personal behavior behind closed doors do violate the Constitution - nowhere does it give the government the power to regulate personal morality.
I believe personal rights trump government powers. I have no patience for so-called "conservatives" who want to increase the reach of the government.
Please explain how you have come to that deduction or is that just a catty snipe?
Among the founders, *sodomy was universally condemned as a crime against nature. It was illegal in each of the thirteen states existing at the time the Constitution was ratified and the Bill of Rights was adopted. In Thomas Jefferson's Virginia, it was a crime punishable by death. When Jefferson wrote an amendment to the criminal code lessening the penalty for sodomy, he nevertheless classed it as a crime with rape, polygamy, and incest.
Whosoever shall be guilty of rape, polygamy, or sodomy* with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least.- Thomas Jefferson:
*Ever look up the word Sodomy in Noah Websters dictionary?
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other".- John Adams 1798 --
Excellent point.
In their wisdom they didn't, and we're stuck with what they actually set into law. Not guessing at their intentions, not inferences, but the actual letter of the law. And the Constitution says that if the government isn't given the specific powers to regulate it, the government has to stay out.
The real beef I think you have is with the 14th Amendment, applying the Bill of Rights to the states. But as I said above, the Bill of Rights *has* to apply to states, or the rights it acknowledges are meaningless.
The government could do an end run around freedom of the press by having a state or municipal government shut down an opposition newspaper if states aren't bound by the Bill of Rights. The government could prohibit gun ownership by enforcing it through states if states aren't bound by the Bill of Rights.
I don't care what consenting adults to on their own property. But as I've said above, I value freedom. That includes the freedom to do things I wouldn't personally do, as I don't expect the government to force all citizens to conform to my personal preferences.
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