U.S. Constitution limits states' rights and powers

Following is the fifth in a series of columns by members of the Alabama Citizens for Constitutional Reform.

Several articles in the Constitution of the United States (especially Article IV) as well as several of the amendments to the Constitution (especially the 14th Amendment) apply to the state governments.

In fact the following provision of the 14th Amendment reaches back and makes the 1st Amendment apply to the states:

"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 of the equal protection of the laws."

This then makes the five freedoms guaranteed in the 1st Amendment --- religion, speech, press, assembly, and petition --- apply in the states.

If the Supreme Court of the United States had not made this interpretation of the above clauses in the 14th Amendment, the states would have been free to restrict religious freedom and even establish a particular religion as the official state religion, to prohibit any desired variety of speech, to limit or prohibit the printing or disseminating of any information the state decided was not allowed, to prohibit or restrict meetings of any kind as the legislature desired, and to prohibit or restrict access to state public officials. Other restrictions on the states are specifically stated in the U.S. Constitution in Article I Section 10. In addition, because of the powers assigned to the Congress, the states cannot regulate commerce with foreign countries nor with other states, nor can they naturalize citizens, fix standards of weights and measures, declare war, nor raise or support an army or navy.

Although we refer to the states within the United States by that designation, they do not meet the criterion of sovereign states because they do not have the power to provide protection from outside interference as indicated by the restrictions listed above.

State constitutions are limited, in part as a result of these restrictions. States do, however, have the ability to regulate all other levels of government situated within their territory --

I'm sure you're correct but I'm arguing over the interpretations themselves, not whether a particular interpretation ended up being the widely accepted one. I think some bad directions were taken early on. And the 14th amendment wasn't all that necessary. I disagree with the cases, prior to the war that America's States lost, that found that the BOR applied only to the federal government. It is absolutely absurd, for example, to say that the judges in the state of Maryland were not bound by the just compensation clause of the 5th amendment, in Barron v. Baltimore, when the supremacy clause in the Constitution says that the "judges in every state shall be bound [here]by" despite "any Thing in the Constitution, or the Laws of any State" to the contrary. I just find it amazing that these words were constantly overlooked. I find it amazing that state judges who take a US Constitutional oath felt no obligation to look at the plain text of Article VI.

"all executive and judicial officers, both of the United States and of the several states, shall be bound by oath...to support this Constitution;"

"
The provision is general in its nature and unrestricted in its terms; and the sixth article of the Constitution declares, that the 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 not withstanding. "

Wow tpaine!! People vs. Goodwin - Great find! A Chief Justice who finally read Article VI for us!!

Now let me go see if WT has a comment.

"This state judge can have his opinion, which was novel at the time and not the prevailing law. I don't think the US BOR was actually the foundation of his ruling, but the Georgia BOR for reasons stated."

Seems like Article VI was the basis of his ruling. And seems like what was novel at the time was based on plain text and undeniable, hence the prevailing law was a mistake. You don't have to be a centrist to agree with it. If seeing it this way made you a 'centrist' then every state convention that ratified the Constitution with Article VI saying what it said in plain sight, was filled with a bunch of centrists.

This helps me see why we have the problems of today. Because of this original exemption of the states from the BOR, a "use" for the 14th was invented, and has bred abuse.

Seems like Article VI was the basis of his ruling.

I disagree. For that to be, the federal constitution, when ratified, would have invalidated everything in the states constitutions also found in the federal constitution. The Georgia constitution at that time had a right to bear arms. The ruling would have been based on that.

The judge just used the count of the plaintiff's to expound on his beliefs. If that case had peculated up to the existing Supreme Court, it would have been struck down, but the judge knew it could never go that far.

You see, the state and federal constitutions are opposite in operation and intent.

Each state government exercises all powers against which it is not restrained by the BOR in the state's constitution. The federal government exercises only those powers which are contained in the provisions of the federal Constitution, the BOR therein being further limitations on that power.

The effects of the state constitutions were positive to the state, all rights and powers not reserved for the people in it's constitution were exercised by the state.

The effects of the federal constitution were negative, all rights and powers not assigned to the federal government were retained by the states and people. The federal BOOR is like a negative power. It further took away any imagined power the feds might seek to claim.

Before the 14th amendment, the states were the people in them and the federal government was the states. The 14th made the federal government the people in the whole US, just residing in a state.

The judge would know all this, he would just be one who felt the central government should be supreme. He wasn't the only one. All people who thought like that ate unclean things and fornicated with donkeys.

"For that to be, the federal constitution, when ratified, would have invalidated everything in the states constitutions also found in the federal constitution."

Only if there was something contrary to the BOR in the State constitutions. But since the State constitutions were at least as restrictive as the Federal, no biggie. The conventions saw no problem with the BOR - no conflict, so the plain text of Article VI didn't bother them.

"Each state government exercises all powers against which it is not restrained by the BOR in the state's constitution...
The effects of the state constitutions were positive to the state, all rights and powers not reserved for the people in it's constitution were exercised by the state." -WT

State powers are numerous, and undefined, compared to the Federal powers, and maybe that's where you're getting the above, but Va's constituion has section 17 (its version of the 9th amendment):

"Section 17. Construction of the Bill of Rights.

The rights enumerated in this Bill of Rights shall not be construed to limit other rights of the people not therein expressed. "

Exactly the opposite of what you said. The VA BOR is "positive" to the people, negative to the state. Surely this is not something only VA invented recently.

What I said about the state and federal constitutions I read in a USSC ruling that came down before the war and noted the principle. Probably I came across it looking for something else. I can't find the cite.

The USSC has also said in the past that headings and lead in's have no force of law, only enumerations have that force. Plus, just think about a judge's ruling on the claim of a right not enumerated being the object of that a statute by the state legislature.

It is a descriptive, not an operative. Did you shepardize that part to see how the state courts used it or ruled on it, if they ever have?

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