Posted on 02/27/2007 8:10:52 PM PST by AZRepublican
His constitutional what?
Here is the question's presented to the court, for which the love of me cannot understand why such lousy and demonstratable false precedent is still adhered to justify hearing such a case:
1. Whether a law enforcement officer's conduct is "objectively reasonable" under the Fourth Amendment when the officer make a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect's vehicle with his push bumper, because the suspect had demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at serious risk of death.2. Whether, at the time of the incident, the law was "clearly established" when neither this Court nor any circuit court, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer uses deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight.
The framer of the Fourth Amendment's first section, John Bingham, was clear and dead serious when he said over and over that those privileges and immunities are only those found under article 4, section 2 as they had always existed, and not the bill of rights. He officially stated in January of 1871 that the privileges and immunities incorporated nothing other than they had before the fourteenth.
The Fifth Amendment’s due process was incorporated, nothing else.
Moreover, the court is attempting to cross a line into the police affairs of local government for which no such right had ever been surrendered to them to cross. Let us consider what the framers of the Fourteenth Amendment felt about the Federal Government disturbing local police powers.
Sen. John Sherman (OH) proposed an amendment (known as the Sherman Amendment) to enforce the Fourteenth Amendment in the year 1871. What Sherman proposed was to punish and bring private conduct within counties and cities of a State, under federal jurisdiction. The same House who adopted the Fourteenth Amendment overwhelmingly rejected it by 140 to 30.
Austin Blair (MI), a strong Fourteenth Amendment defender, and human rights activist, had this to say about the proposal on April 19, 1871:
They [States] create these municipalities; they say what their powers shall be. If the Government of the United States can step in and add to those obligations, may it destroy the municipality? If it can say that it shall be liable for damages occurring from a riot, I ask gentlemen to tell me where its power will stop and what obligations it might not lay upon a municipality.Sen. Frederick T. Frelinghuysen, said: “I submit that the police regulations of towns and counties are exclusively with the towns and counties, and they have in no manner forfeited to the Federal Government to make those police regulations.”
If gentlemen say that the powers of the General and State governments for the protection of life, liberty, and property are concurrent and that we can go everywhere throughout the United States and do by the General Government everything that can be done by any State government, then I grant this power might exist; but until I am shown that, I am unable to see it. As I have said, I have always supposed that there were certain powers and certain rights that belong to the States that the General Government has no right to interfere with. This right of local self-government, as I supposed, it was not the intention of the Constitution of the United States in any case to take away from the States, and I cannot see how it is possible that this power could exist without taking it away.
Sen. Lyman Trumbull, chairman of the Senate Judiciary said: “I am not willing to undertake to enter the States for the purpose of punishing individual offenses against their authority committed by one citizen against the other. We, in my judgment, have no constitutional authority to do that. When this government was formed, the general rights of person and property were left to be protected by the States, and there they are left today.”
Trumbull further added: “I do not know where in the Government of the United States gets the constitutional authority to go into the States and establish police regulations.” Bingham, under limited floor time, quickly questioned how the Federal Government could guarantee to the States a republican form of government while at the same time denying local government the right to govern themselves:
Mr. Speaker, how can States exist, how can you enforce the provisions of the Constitution of the United States as to States, if you will not maintain the corporate organizations of the several States? There can no more be a State under the Constitution and laws of the several States of this Union without the corporate organizations of counties or parishes therein than can be a United States under the Constitution of the United States without organized States; because the counties in the several States are integral parts of the States, just as the States of the Union are integral parts of the nation. If you destroy either you, destroy the whole fabric.George Hoar added: “I do not favor interference in any degree by the national government with the local administration.” Luke Poland (former VT Supreme Court Justice) continues the assault on the notion the Federal Government is empowered to interfere with the local administration of justice:
[I] cannot agree with several gentlemen upon my (Republican) side of the House who insists that if the State authorities fail to punish crime committed in the State therefore the United States may step in and by a law of Congress provide for punishing that offense; I do not agree with those gentlemen.James Garfield joined the chorus attacking the Sherman Amendment:
These systems of local government by counties and cities are adopted by the States as instrumentalities to aid them in the wise and judicious regulation and protection of the local and domestic interests of their citizens. It will never do to say that they may be tampered with, impeded, or arrested in the discharge of their duties, as this bill proposes. It would be fatal to the success and very existence of local self-government. It has many times been solemnly decided by the Supreme Court that these agencies adopted by the States to aid in local administration are above the touch or control of any power, are subject only to the exclusive regulation of the States.John Farnsworth attacked the amendment this way:
The Supreme Court of the United States has decided repeatedly that the Congress can impose no duty on a State officer. We can impose no duty on a sheriff or any other officer of a county or city. We cannot require the sheriff to read the riot act or call out the posse comitatus (sic) or perform any other act or duty. Nor can Congress confer any power or impose any duty upon the county or city. Can we then impose on a county or other State municipality liability where we cannot require a duty? I think not.Jefferson wrote from Monticello on June 12, 1823: "Can it be believed that under the jealousies prevailing against the General Government at the adoption of the Constitution, the States meant to surrender the authority of preserving order, of enforcing moral duties, and restraining vice, within their own territory?"
The court in The City of New York v. Miln, 11 Peters, 102, perhaps sums up the principle involved best: “All those powers which relate to merely municipal legislation, or which may be properly called internal police, are not surrendered (by the States) or restrained, and consequently in relation to those the authority of a State is complete, unqualified, and exclusive.“
The truth is nothing had been surrendered by the States to the Federal Government over local police matters. Both Congress and the Federal courts have been given no authority to legislate or oversight into the affairs of persons within State jurisdiction except under two very narrow conditions that no law enforcement officer could possibly violate.
The Supreme Court is well aware of these facts, but they continue holding onto their bogus precedent in order to invade a domain they cannot justify invading any other way. To say that today’s federal judiciary is in severe crisis would be an understatement. Let us hope they can find their way back into the light to restore dignity back to the federal judiciary.
Police powers were asserted by the federal government under the Commerce Clause around the early 1800's. The 14th amendment had nothing to do with it.
"The language does not oust the state and local construction of their own laws"
States can prohibit sodomy? Nude dancing? States can allow display of the Ten Commandments? Nativity scenes? States can search without a warrant? States can close a newspaper? States can have their own religion?
Prior to the 14th amendment they could. And did.
And they did after the fourteenth also, much to the approval of those who had framed it. Bingham said the amendment enjoined no new obligation on either States or citizens.
For a while, yes. Until the U.S. Supreme Court found the Due Process loophole.
"Bingham said the amendment enjoined no new obligation on either States or citizens."
In the closing debate in the House, Bingham stated:
"It was an approbrium to the Republic that for fidelity to the United States they could not by national law be protected against the degrading punishment inflicted on slaves and felons by State law. That great want of the citizen and stranger, protection by national law from unconstitutional State enactments, is supplied by the first section of this amendment."
Huh? Bingham believed that the privileges and immunities of U.S. citizens *included* the Bill of Rights (Amds 1-8). He stated this quite often and explicitly. The author couldn't be more wrong here. Pretty hard to take him seriously after such a ridiculous error.
One has to wonder what "unconstitutional acts" he was referring to since he agreed the bill of rights were not a limitation upon the states. The due process clause is not much of a loophole IMHO because as Madison states in another article that the fourteenths only deals with denial, not the administration of due process.
I don't have time right now to go searching for a lot quotes. However, since your article quotes Bingham in 1871, I'll give you one quick one from Bingham in that same year. Try here.
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. . . .That whole section is well worth reading. Starts on page 81, I think.These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States," are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. . . .
If for some reason you still need something from 1866, ping me later tonight after 11 (Eastern Time) or anytime tomorrow, and I'll find something for you.
I agree with Sandy in post #24 -- Bingham intended the 14th to apply the BOR to the states.
But it appears as though he was only one of a very few who thought the 14th accomplished that. It took almost 100 years for the U.S. Supreme Court to selectively incorporate some of the BOR. Some amendments still aren't incorporated.
"The due process clause is not much of a loophole"
It is, and here's how it works.
The U.S. Supreme Court starts with the 14th amendment clause, "nor shall any State deprive any person of life, liberty, or property, without due process of law". The court then declares that some right (for example, free speech) is so essential and fundamental to the concept of liberty that no state may deny it without due process.
Now, all you have to do is substitute something for "free speech" and off you go.
The P&I's he speaks of there are the very P&I's he officially said on January 31, 1871:
'The clause of the fourteenth amendment, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United State," does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article two section four.'
He makes it officially impossible for the first 8 amendments to be limitations upon the States through article 4, section 2. He is, in the words of Madison, "tooting his horn" on the anti-KKK bill. He never suggested during 1866 that the 14th would make the first 8 amendments a direct limitation upon the States. No one has found such a declaration from Bingham in 1866. Will you be the first?
The Slaughterhouse Cases were the first test of the 14th amendment, and the court concluded that the privileges and immunities of citizens of the United States did NOT include the BOR.
Read what I posted. It was the 14th's "liberty", not the 5th's.
"can be anything more then what Bingham and the courts at the time said it was."
The "fundamental to the concept of liberty" phrase has been repeatedly used by the U.S. Supreme Court when incorporating the various amendments.
> Read what I posted. It was the 14th's "liberty", not the 5th's.
I know, BUT Bingham was very clear in saying: "The residue of the resolution, as the House will see by a reference to the Constitution, is in the language of the second section of the fourth article, and of a portion of the Fifth Amendment adopted by the First Congress in 1789, and made part of the Constitution of the Country. "
The 14th's liberty is the same as the 5th's. He included the due process clause because Barron v. Baltimore prevented Congress from enforcing the first eight amendments against the states, and there was no desire or support to overturn that ruling.
Yes and no.
The Bill of Rights, including the 5th, only applied to the federal government. The "liberty" mentioned in the 5th didn't have to contain rights "fundamental to the concept of liberty" (ie., freedom of speech, freedom of the press, freedom from unreasonable searches and seizures, etc.) because those rights were already protected from federal infringement in the other BOR amendments.
The "liberty" in the 14th applied to the states. Freedom of speech, for example, wasn't automatically included as "liberty" in the 14th and applied to the states. It wasn't until 1925 in Gitlow v New York, that the U.S. Supreme Court decided speech was fundamental to liberty (in the 14th) and must also be protected by the states.
Bingham was speaking out of both sides of his mouth. He expected the BOR to apply to the states (through the P&I Clause), yet spoke of how the 14th was no different than other parts of the existing U.S. Constitution.
He was denied his wish by the ruling in the Slaughterhouse Cases a few years after ratification. But, 50 years later, the U.S. Supreme Court started using "liberty" and "due process" (not P&I) to do Bingham's work.
Now, it would be different if the U.S. Supreme Court said, for example, that Freedom of Speech must be protected by the states AND the definition of "speech" is determined by the Supreme Court of each state. That, at least, preserves some semblance of a republic.
But the U.S. Supreme Court decides what is speech and that definition applies to all 50 states. They say nude dancing is "speech", then by God all 50 states must allow it. If the court says a Nativity Scene on public property is an establishment of religion, then no state may allow it.
Five justices run the entire country. Not what the framers had in mind.
Judicial activism is a long and dishonorable tradition.
So it would appear (and later confirmed in the Slaughterhouse Cases). Yet he did say,
"These eight articles I have shown never were limitations upon the power of the States, until made so by the fourteenth amendment."
How else can one interpret that sentence?
IF you would have read the court case you would have seen (and agreed) why the court concluded the way they did.
Oh, and it's the Bill of Rights not the Bill of Privileges. You would have freedom of speech, freedom of the press, freedom from unreasonable searches, and the RKBA protected by the states as a privilege?
How else can one interpret that sentence?
Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, Fourteenth Amendment of the constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. (Goes on to quote each of the first eight amendments)...He is saying the P&I's are *chiefly* defined in the first eight amendments, not that that the entire eight are direct limitation due to the 14th. This is a dramatic reversal from earlier speeches where he said the P&I's were defined from article 4, section 2.
I'd also point out he said this March 31, 1871... 5 years after his speeches for adopting the 14th. He wasn't being honest, and as Paul Madison has pointed out, refused to defend his inconsistencies from earlier speeches when challenged.
My guess is he was being a typical crackpot on that day.
He was denied his wish by the ruling in the Slaughterhouse Cases a few years after ratification. But, 50 years later, the U.S. Supreme Court started using "liberty" and "due process" (not P&I) to do Bingham's work.
Consider this statement by him: "The care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country."
And after the adoption: "Only the States can define their own laws, under their own Constitutions." Of course, the Supreme Court takes it upon themselves to do all the defining.
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