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To: Hemorrhage
What “liberty” do you suggest that this phrase refers to? The definition of “liberty” in this passage is the same as the definition of “liberty” in the 5th amendment ... and necessarily includes the freedom of speech.

Yes, and I would say that "liberty" refers to one's freedom from imprisonment. Tyrannical governments like to throw their citizens in jail on a whim. If we were to take the broadest possible interpretation of "liberty", as you seem to be doing, then both the state and federal governments would be restricted from enacting and enforcing any law that restricts a person's ability to do something. For instance, a state would be forbidden from making it illegal to park in a red zome, because that infringes on a person's liberty without due process.

Now, from that silly example, we can be sure that the term "liberty" as was used in the 5th and 14th, does not mean any completely unrestricted condition. Nor does it reference previous rights delineated in the Constitution. The SCOTUS has inferred that it does, in order to render their flawed interpretation, but hey, they have a history of seeing eminations of penumbras. Nowhere, however, does that clause, or anything else in the 14th, say "all rights delineated in the other amendments are now applicable to the States".

As for the "due process" and "privileges and immunities" arguments, I'm sure you have a point you are trying to make, but I think a sticking point in your argument is that you keep using the clauses themselves to define the clauses. For instance, you say:

"The WHOLE point of the amendment is to prevent individual states from passing laws which (1) infringe on privileges and immunities of citizenship, (2) deny life, liberty or property without due process or (3) deny equal protection."

The problem here is that we are supposed to be debating exactly what "infringe on privileges and immunities" means. I say it means rights of federal citizenship as opposed to state citizenship, since it is worded exactly that way. You seem to be arguing that the state governments are forbidden from restricting anything, which is obviously false. The various states regulate, within their own borders, how alcohol can be sold, for instance. They also regulate or ban drugs, dairy, and handguns, all differently. How is that different from limiting or banning pornography?
382 posted on 08/16/2007 3:29:35 PM PDT by fr_freak
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To: fr_freak

>> If we were to take the broadest possible interpretation of “liberty”, as you seem to be doing, then both the state and federal governments would be restricted from enacting and enforcing any law that restricts a person’s ability to do something. For instance, a state would be forbidden from making it illegal to park in a red zome, because that infringes on a person’s liberty without due process.

This is the most ridiculous straw man I’ve ever seen. Applying the Bill of Rights to the states via the 14th amendment would not disallow making parking laws. The Bill of Rights does not include a right to park wherever you please.

I am not applying the “broadest possible interpretation” of the word liberty to restrict the government from making any laws ... and I never stated or implied any such reasoning. I am applying the interpretation of the word “liberty” which is used in the 5th amendment ... an interpretation which states that the definition of “liberty”, as used in the 5th and 14th, necessarily includes the enumerated rights in the Bill of Rights.

The government is allowed to restrict a great many things, particularly State governments. However, those rights enumerated in the Bill of Rights are guaranteed ... and NO government, Federal, State or Local, has the power to tread on those rights.

According to your flawed interpretation of the 14th amendment, a State government - via an act of the state legislature - would theoretically have the power to ...

(1) seize all firearms ... as the right to keep and bear arms would be a federal right only, [if yours were truly a proper interpretation, there are SEVERAL states which would seize all firearms tomorrow];
(2) arrest peaceful protesters (only a federal right to free speech);
(3) restrict political speech on websites such as this (federal free speech only);
(4) randomly search the homes of its citizens without probable cause or a warrant (restrictions on searches & seizures would be federal only);
(5) torture criminals (bans on cruel and unusual punishment would be federal only);
(6) establish a compulsory state religion (establishment clause is federal only);
(7) jail practicioners of any religion OTHER than the state religion (free expression clause is federal only);
(8) seize private property for public use with no compensation (think eminent domain, but without the necessity of actually paying for the property ... we’d have several communist states on our hands);
(9) engage in double jeopardy in trials;
(10) force accused criminals to testify against themselves;
(11) try accused criminals without an indictment;
(12) throw people in jail without any legal process ... no right to a speedy or public trial;

... etc. ...

However, because the 14th amendment applies the Bill of Rights to State governments ... no State government is permitted to do ANY of these things. Luckily, the Supreme Court, and the VAST majority of the country, disagrees with your fatally flawed interpretation of the 14th Amendment.

H


412 posted on 08/17/2007 10:21:03 AM PDT by SnakeDoctor ("Don't worry. History will get it right ... and we'll both be dead." - George W. Bush to Karl Rove)
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