To: NutCrackerBoy; inquest; mrsmith; yall
--- It's been obvious that none of you 'states rights advocates' know much about this issue.. Read the link posted earlier.. Please..
Roland is an acknowledged expert on the subject:
Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)
Commentary by Jon Roland
This is the case that is taken as precedent for the doctrine that the provisions of the Bill of Rights are only restrictions on the powers of the national government, and not on the states.
Although this doctrine is considered settled law within the judicial establishment, it is challenged by many constitutional scholars.
There are several arguments for this doctrine. The first is that the provisions of the Bill of Rights are intrinsically only restrictions on the national government, and not on the states, if not in the words then in the debates that took place during the drafting and ratification of them.
This line of argument cites the language of the First Amendment that "Congress shall make no law..." and the fact that Madison had proposed more general language that would have applied to the states and that the First Congress, which drafted and proposed the Bill of Rights, based on a first draft provided by Madison, rejected Madison's language in favor of the language which restricts only "Congress".
The opponents of this argument point out that the remaining provisions of the Bill of Rights contain no such language, but are written with no qualification on them to restrict the restriction to either Congress or the states, and that by the rules of construction inherited from the English common law tradition, would therefore apply to all levels of government.
Critics also point out that since each of the provisions of the Bill of Rights were proposed as separate amendments, to be debated and ratified separately, and indeed, two of the proposed articles were not ratified at the time, and one of them, the second in the proposed twelve, was not ratified until after the passage of over 200 years, as the 27th Amendment in 1992.
Therefore, more restrictive language in what became the First Amendment could have no bearing on the coverage of the restrictions contained in the remaining amendments.
If we examine the debate in the First Congress more closely, however, it seems clear that the restriction to "Congress" in the article that was to become the First Amendment (when proposed, it was the third) was only intended as a prudential tactic to avoid opposition to its ratification from the many states that then had "establishments of religion", mainly in the form of taxes that were more or less fairly distributed to at least churches of most protestant denominations in the state.
Within a few years after adoption of the Bill of Rights on December 17, 1791, every state that had "established" religion had either adopted their own constitutional amendments disestablishing religion, or simply discontinued the practice.
But the language of the First Amendment remained.
This raises a debate concerning the nature of the Bill of Rights. Are they positive law, restrictions on the powers of government, either just federal, or on both federal and state, which would not exist if they were repealed; or are they recognitions of fundamental rights that pre-exist government at all levels.
The semantic difference is critical, because of the language of Art. III, Sec. 2, that "The judicial Power shall extend to all cases, in Law and Equity, arising under this Constitution, ..."
If the provisions of the Bill of Rights are only positive law, then their repeal would remove them from "arising under this Constitution" and therefrom the jurisdiction of the federal courts, and the restriction of the First to "Congress" would deprive the federal courts of jurisdiction over violations by Congress and not by the states.
If they are fundamental and pre-existing, then they would fall within the Equity jurisdiction of the federal courts, and the federal courts would have at least appellate jurisdiction over state cases in which the issue is a violation of a right of an person by a state.
The theory of government under which the Constitution was developed is the theory of natural law. This theory supports the doctrine that certain rights are fundamental and pre-exist government, either natural rights arising from the primal "state of nature", or civil rights arising from the "social contract", but before the society thus created established a government for itself.
That is not to say that the rights recognized in the Bill of Rights are all natural rights, but they are instrumental rights to natural rights, which arise out of the social contract and the common law tradition of government leading up to the Constitution, nonconflicting parts of which were incorporated into it, which we classify as "civil".
But one of the tenets of this theory is that all natural and civil rights are necessarily also constitutional rights, whether explicitly recognized or not. Of course, constitutional rights can also include rights, such as the right of citizenship, that only make sense in the context of a constitutional order, and that we therefore say arise from a constitution proper, and not from nature or the social contract that precede it.
The main implication of this doctrine is that the federal courts have either original or appellate jurisdiction over cases involving violations of constitutional rights by an official or agent of government at any level, regardless of whether the rights are explicitly protected.
77 posted on
01/01/2004 6:58:21 PM PST by
tpaine
(I'm trying to be 'Mr Nice Guy', but FRs flying monkey squad brings out me devils. Happy New Year!)
To: tpaine; mrsmith
Good post, but I have to side with
mrsmith.
If some amendments say "Congress shall not...", it seems obvious that the founders intended that as a restriction on the U.S. Congress alone, not the state governments.
Other amendments clearly apply to all levels of government.
I chalk this apparent oversight up to political infighting among the founders, many of whom wanted no restrictions on the states.
Aside: Mr. Paine, the way you quote back excerpts from various posts is very confusing. You might want to consider italicizing the quotebacks or using a different font or something. I can't figure out which are the quotes and which is your responses to them.
86 posted on
01/03/2004 4:04:37 AM PST by
snopercod
(Wishing y'all a prosperous, happy, and FREE new year!)
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