Posted on 01/15/2006 8:59:46 AM PST by Dog Gone
What does it prove? It certainly doesn't prove that all clauses apply to the states. Everybody has to uphold the Constitution, but it does not mean that you have to follow the rules that don't apply to you.
We have quotes from the framers of the Constitution and the Amendments that clearly show that the BoR was not meant to apply to the states. If they f.ex. wanted the right to trial by jury to apply to the states they would accept the additional amendment proposed by Madison. If they wanted the RKBA to apply to the states they would explicitly say so. Read the Introduction to BoR written by Madison.
You left off the next part of the Sixth:
...of the state and district wherein the crime shall have been committed
In other words, this is a mandate to the states as well.
My position stands. IMO the Second was sandbagged by early SCOTUS politics over state powers, just as the 10th has been sandbagged ever since the days of FDR.
You mean like this one?
Art 6. Para 2.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Game. Set. Match.
It proves that the delegates voting in the new Constitution knew a hell of a lot more about what they were doing than you do.
Article VI is the proof of my claims.
Read it, then try to refute what it says about State constitutions & laws "to the Contrary, notwithstanding"..
Citations of opinions do not trump the clear words of Article VI..
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Tarkin:
Of course they don't. Nobody claims to trump the clear words of Article VI.
--The states don't need to follow the rules which don't apply to them, just as you don't need to follow the rules which don't apply to you.
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Conservative Goddess;
And under your ridiculous reading of the clause.....states would cease to exist.
In your view, what, if any, power do the states retain?
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I view both our duty to "follow the rules" and the state/fed power issue much as does Ezra Taft Benson in his great essay:
The Proper Role of Government
Address:http://www.usiap.org/Legacy/Addresses/ProperRoleOfGovt.html
You two really do need to read it.
-- Get back to me if you can understand his POV. -- Or feel free to critique it if you can't.
Of course we don't need to divine the intent or purpose of the Constitution of the United States. Neither did Marshall since the purpose of the Constitution is in the body of the document itself.
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence,[1] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
When view from the preamble, things grow sharply into focus. It is not the founders intent that matters, it is the intent of "the people". And "the people" were those folks who occupied the United States of America since and from 1776 to the ratification.
In McCulloch v. Maryland, Marshall says the following:
"From these conventions the constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established" in the name of the people; and is declared to be ordained, "in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity." The assent of the States, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. . . .
Which makes clear that any declaratory statements in the Constitution emanate from the people and not the states. Thus, when the people declare that "...the right to keep and bear arms shall not be abridged." that is exactly what the people have declared. The people had the power to exempt the states from this declaration, they did not.
The people also declared that the "This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."
And that is exactly what the people meant. Marshall's use of Article 1 Sections 9 & 10 to declare otherwise simply ignores the facts he related in McCulloch v. Maryland, that being that "The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties."
The Source of Government Power
Leaving aside, for a moment, the question of the divine origin of rights, it is obvious that a government is nothing more or less than a relatively small group of citizens who have been hired, in a sense, by the rest of us to perform certain functions and discharge certain responsibilities which have been authorized.
It stands to reason that the government itself has no innate power or privilege to do anything.
Its only source of authority and power is from the people who have created it.
This is made clear in the Preamble to the Constitution for the United States, which reads: "WE THE PEOPLE...do ordain and establish this Constitution for the United States of America."
The important thing to keep in mind is that the people who have created their government can give to that government only such powers as they, themselves, have in the first place.
Obviously, they cannot give that which they do not possess. So, the question boils down to this. What powers properly belong to each and every person in the absence of and prior to the establishment of any organized governmental form?
A hypothetical question? Yes, indeed! But, it is a question which is vital to an understanding of the principles which underlie the proper function of government.
Ezra Benson.
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To bad they don't teach principles in 'law school'.
Law schools are about law. The more laws there are, the more people need lawyers. Axiomatic that lawyers holding office would ensure the perpetuation of their species of parasite.
It would appear to me that there is a God given right of privacy just as there is a God given right of every man to obey his conscience in matters of religion and to acknowledge that God alone (never the government)has exclusive authority over matters of conscience, including the authority to advise or recommend with respect to the duty that is owed to the Creator.
Well Tarkin?
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
" The defendant's counsel rely, principally, on the 5th article of the amendments to the constitution of the United States, which contains this provision: "Nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb." It has been urged by the prisoner's counsel, that this constitutional provision operates upon state courts proprio vigore. This has been denied on the other side. I do not consider it material whether this provision be considered as extending to the state tribunals or not; the principle is a sound and fundamental one of the common law, that no man shall be twice put in jeopardy of life or limb for the same offence. I am, however, inclined to the opinion, that the article in question does extend to all judicial tribunals in the United States, whether constituted by the Congress of the United States, or the states individually. The provision is general in its nature, and unrestricted in its terms; and the sixth article of the constitution declares, that that constitution shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. These general and comprehensive expressions extend the provisions of the constitution of the United States to every article which is not confined, by the subject matter, to the national government, and is equally applicable to the states. Be this as it may, the principle is undeniable, that no person can be twice put in jeopardy of life or limb, for the same offence." Chief Justice Spencer New York
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Judge Lumpkin in a nice rebuke of Marshall writes in part:
"The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States, in their act of ratification, recommended that further restrictive clauses should be added. And in the first session of the first Congress, ten of these amendments having been agreed to by that body, and afterwards sanctioned by three-fourths of the States, became a part of the Constitution. But admitting all this, does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature." Judge Lumpkin
Amen.
No I asked for a ruling about the BOR and the states- there is only one Supreme Court ruling of course. As I said earlier several states did incorporate the BOR on their own.
Neither can you give any examples of people calling for a federal BOR to protect them from their states. There are thousands of quotes calling for it to protect them from the federal government.
Yet, you insist that is what they got because... well why? Because it's what they should have got?
You mentioned two federal cases:
Kelo
http://www.freerepublic.com/focus/f-news/1429187/posts
Thomas, J., dissenting..
" the Takings Clause did not even arguably limit state power until after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 599, 599—600, and nn. 3—4 (1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250—251 (1833) (holding the Takings Clause inapplicable to the States of its own force)."
"Not even arguably" now that's condescension! At least I grant you can argue. Neither Justice Thomas nor I are any fans of Stare Decisis- we both look to originalism for our views. Of course some people may consider him more authoritative.
and Corfield v. Coryell
SAENZ V. ROE "Thomas, J., dissenting...
When Congress gathered to debate the Fourteenth Amendment, members frequently, if not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to guarantee the fundamental rights that Justice Washington identified in his opinion..."
There's a very promising view of the P&I clause, based on Corfield, in that dissent BTW. You should read it to get something positive out of this bizarre exchage.
No one (except Madison- who's proposal was rejected) wanted to give the federal government more power over the people and the states with the BOR.
It didn't happen until hundreds of thousands of Americans were dead. As much as you and I complain here about the abuses the federal courts make today under the 14th it should be easy to understand why the people of 1789 rejected giving them that power over their rights.
But you didn't include that disclaimer in every sentence that you wrote. And that's the standard you applied to the Bill of Rights.
Federal juries in California use California residents as jurors.
Read a book.
"--- the principle is a sound and fundamental one of the common law, that no man shall be twice put in jeopardy of life or limb for the same offence.
I am, however, inclined to the opinion, that the article in question does extend to all judicial tribunals in the United States, whether constituted by the Congress of the United States, or the states individually.
The provision is general in its nature, and unrestricted in its terms; and the sixth article of the constitution declares, that that constitution shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.
These general and comprehensive expressions extend the provisions of the constitution of the United States to every article which is not confined, by the subject matter, to the national government, and is equally applicable to the states. ---"
Chief Justice Spencer New York
But - but, -- didn't we just have a couple of supposed lawyers claim ~absolutely~ that the entire world, all judges, James Madison and all constitutional scholars agree with them on this issue?
Is it possible that those two could be wrong? -- Heavens to Betsy...
LOL, I found my way to Corfield through Saenz a while back. And now that you've read Corfield and Saenz you can go "rag on" Justice Thomas.
We're going nowhere and if we keep going that way we're gonna end up not too friendly.
So, unless you'd like to explain to me why "the people" would cede their rights to the states I'd say we should conclude our discussion.
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