Posted on 01/15/2006 8:59:46 AM PST by Dog Gone
And if there aren't just what the heck is the meaning of the ninth amenmdent when it states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
If that was the case the Bill of Rights would have applied from the beginning. And that is clearly not the case. I would suggest you look to the Amendments that Madison offered and were denied. Specifically the one that stated the Bill of Rights would apply to the states. As that Amendment did not pass, the Framers understood the Bill of Rights were to apply only to the relationship between the citizens of the respective states and the national government
I don't think it's that tortured, and I don't think one can easily attribute some amendments to be of any one "thing."
The First amendment was originally three separate amendments that were combined into one. What do bans on establishment of religion, freedom to worship, freedom of press, freedom to assemble, and freedom to petition the government have in common? Also, it's being first has no special additional meaning.
The Fifth Amendment is mostly about how a person is to be treated when accused of a crime. The "takings" clause at the end seems to be an afterthought if the Fifth is about criminal protections.
In that regard, the takings clause may make more sense being at the end of the Fourth Amendment, which focuses on protection of property against unreasonable search and seizure. The Kelo ruling seems to be beyond unreasonable seizures of "houses," which is a property that is specifically mentioned in the Fourth amendment, as opposed to just "private property" in the Fifth, or "papers and effects" in the Fourth.
-PJ
Due process transcends both criminal and civil proceedings, obviously, but I think it's a hard argument, and probably a groundbreaking one, to extend Fourth amendment protections into an eminent domain case. I wouldn't want to use that as a major argument.
I don't know about you, but I would be happy if abortion was up to the states, rather than where we are now, with the Feds butting in where they have no enumerated power to intervene.
The vast bult of the Ratification sources are the newspaper articles and reports of campaign speeches. With the exception of Pennsylvania, Dean James Bond states, the State legislatures kept no records of their debates. The legislative debate in Pennsylvania, he comments, 'reads like a reprise of the six month campaign that preceded it'. There are a few of the Governor's messages, but 'most are quite general'. In the three states on which Bond concentrated, he observes that debate 'did not focus exclusively or even primarily on the first section of the 14th Amendment. The principal issue in those states was control of the national government'. Republicans feared that Democrats would wrest control of the House because with emancipation Southern representation would no longer be limited to three-fifths of the blacks as Article I(3) provided.
(snip)
Speaking in Chicago in August 1866, Senator Trumbull, who had piloted the Bill through the Senate, 'clearly and unhesitatingly declared of the Amendment to be 'a reiteration of the rights as set forth in the Civil Rightst Bill", which did not include any reference to the Bill of Rights. In Indiana, Senator Lane 'affirmed Trumbull's statement concerning the first section'; and Senator Sherman 'endorsed' those views in a speech on September 29,1866. Senator Poland spoke to the same effect in November 1866--Raoul Burger, The Fourteenth Amendment and the Bill of Rights, pp37-42
The Fourteenth Amendment and the Bill of Rights--PDF File
I would suggest the whole book. It is a PDF file but a good discussion of the Fourteenth and the Bill of Rights. BTW, Poland and Trumbull are two of the men sourced in the article you provided RKV. Seems they didn't mean exactly what your source would have us believe...
The framers of the 14th made their intent clear in the 1868 debates before ratification. They wanted ex-slaves to have the RKBA's.
'Incorporation' is as you said, a theory.
Where in our Constitution is the USSC given the power to decide if an Amendment applies to State & local governments?
Clearly, Article VI applies all of the the US Constitution to States, "- any thing in the Constitution or Laws of any State to the Contrary, notwithstanding. --"
If that was the case the Bill of Rights would have applied from the beginning.
They did.
The 'Barron' opinion, saying states had the power to ignore the Constitution, was an attempt by Justice Marshall to cool down the Souths insurrectional fervor. It worked for awhile; -- then was 'corrected' after the war by the 14th.
And that is clearly not the case. I would suggest you look to the Amendments that Madison offered and were denied. Specifically the one that stated the Bill of Rights would apply to the states. As that Amendment did not pass, the Framers understood the Bill of Rights were to apply only to the relationship between the citizens of the respective states and the national government.
That's what some States wanted to believe. Because of the threat of civil war, the point that the BOR's applied was not pressed.
The 14th was passed to correct that 'misunderstanding', but then again reconstruction realities stopped it from being applied. Jim Crow ruled.
Now its time to demand that ALL levels of government, fed/state/local, comply with our RKBA's and our BOR's.
Well....no it wasn't. Considering that incorporation of the Bill of Rights was denied by SCOTUS throughout the 1920s you're going to have a time on your hands proving that. For your argument to have any validity, one would have to say that the Justices from 1866 until 1897 had no understanding of the rule of law, had not read original discussions of the framers of the 14th, and were in effect simpletons. Granted some of those appointed by the 16th President were simpletons (at least political cronies of the 16th President), most of them were not.
That's what some States wanted to believe. Because of the threat of civil war, the point that the BOR's applied was not pressed.
LOL, no that's what the Supreme Court of these United States reaffirmed over and over and yes, over again. Multiple times before and after the passage of the 14th Amendment. I would suggest also you look to #186. The book provided covers the ratification debates, among other things.
Yes, that would be very accurate.
The BOR was, as Justice Marshall who participated in the ratification debates that led to the BOR said, demanded and passed only to limit the federal government.
You may consider how many states would have ratified a Constitution that gave federal rights to slaves.
"You have a right to privacy, but that is not an absolute right."
Really? Gee, thanks for the info...
/sarcasm
Sure, my pleasure. Really.
The 14th amendment was proposed by a special Joint Committee on Reconstruction that was created by resolutions in the House and Senate in 1865. They made several recommendations for Constitutional amendments that resulted in the adoption of amendments 13-15. In early 1866, a subcommittee was formed, made up of Congressmen Bingham, Stevens and Conkling and Senators Howard and Fessenden. Rep. Bingham presented a proposed amendment that became the 14th amendment. It was approved by the committee and sent to the House for consideration, along with an explanation of its purpose from Bingham. In that explanation, and in the ensuing debate in both chambers, it was made quite clear that the privileges and immunities clause covered, at the very least, the guarantees contained in the Bill of Rights. When he presented the amendment to the House for debate, Bingham noted its necessity by pointing out that up to that point, "these great provisions of the Constitution, this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States." He proposed to change that by giving the Federal government the power to enforce the bill of rights against state action with his amendment, and he consistently invoked the bill of rights as representing the privileges and immunities to which he referred:
"Is the Bill of Rights to stand in our Constitution hereafter, as in the past five years within eleven States, a mere dead letter? It is absolutely essential to the safety of the people that it should be enforced...'Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be...'What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day?...Gentlemen who oppose this amendment oppose the grant of power to enforce the bill of rights."
He further noted, in later debate over whether the amendment was required to enforce the Civil Rights Bill that was making its way through Congress, "I have advocated here an amendment which would arm Congress with the power to compel obedience to the oath, and punish all violations by State officers of the bill of rights, but leaving those officers to discharge the duties enjoined upon them as citizens of the United States by that oath and by that Constitution."
http://www.stcynic.com/blog/archives/2005/05/the_historical.php
FYI, at least three of the statements you have provided were stated by men whose speeches to the citizens of their respective states were contrary to their views in Congress. But again, don't let facts get in your way. I would suggest you look to the primary sources of the day (i.e. newspapers and speeches within the states). The framers of the 14th Amendment never intended for the Amendment to apply to the northern states, therefore they accepted the 14th would not incorporate the Bill of Rights nationwide
Marshall's approach was modified by the 14th Amendment. Read the Senate debates and its clear that the Bill of Rights applies to the states after its passage by original intent. That the courts have subsequently subverted that position (much to our loss) is also true.
If you choose to ignore decades of precedence clearly stating the fact that SCOTUS did not recognize this incorporation theory and the fact some of the quotes from your other editorial provided came from men that reversed their opinion once in their home states, that's not my problem. The issue is the 14th Amendment was clearly to be applied selectively, namely Radical Republicans giving blacks certain civil rights, and nothing else. To state otherwise is being disingenuous.
I choose to read the debates and take the people who wrote the 14th Amendment at their word. I also consider the courts to have erred greviously in this matter, vis a vis what what meant when the amendment was passed, vs. what the case law now is. Or can you not read the plain text of the debates quoted in the article?
The commerce clause of the Constitution is what allows Congress to regulate interstate commerce "among the serveral states." It's also the bit in the Constitution that Congress and the courts have abused over the years to allow Congress to meddle in things that they don't have Constitutional powers to meddle in. They come up with the wildest excuse relating their laws to interstate commerce.
Justice Thomas believes in strict adherence to the commerce clause, i.e. it doesn't apply to anything other than commerce between the states.
Mark
Airspace is interstate, because flying in it interferes with other states traffic that departed perhaps only minutes apart. The idea that airspace is "local" is silly.
While the idea that what I do in my house is "interstate" is silly.
it does affect their interstate efforts if everyone is allowed to grow pot and distribute it locally.
Who said anything about "distributing" it. I was talking only about what goes on in one's house.
Again, lest anyone get the wrong idea, I don't have anything to do with (illegal) drugs of any kind. My point is merely the hypocrisy of SC rulings/
ON MISREADING JOHN BINGHAM
Address:http://www.constitution.org/lrev/aynes_14th.htm
Don't let facts get in your way, bill.
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