Posted on 05/21/2002 11:54:40 AM PDT by tpaine
The Incorporation Debate
The Issue: Does the Fourteenth Amendment "Incorporate" the Protections of the Bill of Rights and Made Them Enforceable Against the States?
Introduction
The debate over whether the Fourteenth Amendment makes appicable against the states all of the protections of the Bill of Rights is one of the most important and longest-lasting debates involving interpretation of the U. S. Constitution.
The Supreme Court's first interpretation of the scope of the Fourteenth Amendment, adopted in 1868, was rendered in The Slaughterhouse Cases just five years later. By a 5 to 4 vote the Court in that case narrowly interpreted the Privileges and Immunities Clause, thought to be the most likely basis for enforcing individual rights against states. In subsequent cases, attention focused on the Due Process Clause.
Beginning in the early twentieth century the Court began to selectively incorporate some of the specific provisions of the Bill of Rights while rejecting the incorporation of others. The Court's test for choosing which provisions--along with all the accompanying baggage of decisions interpreting the federal rights--were incorporated changed over time.
The "modern view," as reflected in cases such as Duncan vs Louisiana (1968) is that provisions of the Bill of Rights "fundamental to the American scheme of justice" (such as the right to trial by jury in a serious criminal case) were made applicable to the states by the Due Process Clause of the Fourteenth Amendment whereas other provisions (such as the right to a jury trial in a civil case involving more than $20) were not made applicable.
Note that there are several possible positions that could be taken with respect to the incorporation debate.
First, one could argue that the Fourteenth Amendment (either through the P & I Clause or the Due Process Clause) made the specific provisions of the Bill of Rights enforceable against the states and no more. This was the view argued for by Justice Black.
Second, one could argue that the provisions of the Bill of Rights are essentially irrelevant to interpretation of the Fourteenth Amendment, and that violations of the Due Process Clause are to be determined by a natural-law-like tests such as "Does the state's action shock the conscience?" or "Is the state's action inconsistent with our concept of ordered liberty"? This is the "No Incorporation" Theory advanced by Justice Frankfurter, among others.
Third, one could take a position such as Justice White did in Duncan that the Fourteenth Amendment incorporates certain fundamental provisions, but not other non-fundamental provisions. This view is often called the "Selective Incorporation" Theory.
Finally, one could adopt either a "Selective Incorporation Plus" view or a "Total Incorporation Plus" (see Justice Murphy's view in Adamson, for example) view. These views hold that in addition to incorporating some or all of the provisions of the Bill of Rights, the Fourteenth Amendment also prohibits certain other fundamental rights from being abridged by the states.
Cases
The Slaughter-House Cases (1873)
Adamson vs California (1947)
Duncan vs. Louisiana (1968)
The Fourteenth Amendment (Section 1):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
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 the equal protection of the laws.
The Bill of Rights
Incorporated or Not Incorporated?
1st Amendment: Fully incorporated.
2nd Amendment: No Supreme Court decision on incorporation since 1876 (when it was rejected).
3rd Amendment: No Supreme Court decision; 2nd Circuit found to be incorporated.
4th Amendment: Fully incorporated.
5th Amendment: Incorporated except for clause guaranteeing criminal prosecution only on a grand jury indictment.
6th Amendment: Fully incorporated.
7th Amendment: Not incorporated.
8th Amendment: Fully incorporated.
Purposeless restraints. Excellent key concept!
Thanks.
Well, I think its interesting that you seem to think that everyone owes you explanations on all the nitpicking points you can dream up. - Silly, boring tactic.
Anyway, to answer your previous questions:
What then, is the 14ths purpose, if it does NOT apply the BOR's to the states?
I went into detail about that in #28, explaining the meaning of privileges and immunities, due process of law, and equal protection of the laws. If you don't want to go through all those details, then I gave the short version at the bottom of the post: "The common thread running through all three is that they are simply prohibitions against the worst types of potential abuses of state power, not a blanket protection of unspecified natural rights. It's the job of the peoples of those states to make sure their own constitutions contain the appropriate protections, and ultimately, to make sure that their governments respect their rights."
And its the job of the constitution to see that individual rights are not violated. - Checks & balances, remember?
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And why do you oppose an amendment that protects your own individual rights?
Actually, it's an amendment that's billed as a protection of individual rights. It's unnecessary because my own state constitution already contains the appropriate protections;
Mine doesn't. CA is busy infringing my RKBA, with majority rule acceptance. The 14th is 'necessary' here, - NOW.
and it actually makes matters worse, because it's rarely used in a manner that protects individual rights, and in many cases doesn't even pretend to (often, it's more about "group rights"). And so, whether or not it was intended as such, it's been the impetus for an unprecedented power grab by the feds, which has consistently eroded freedom over time.
You appear to have bought into the states 'rights' propoganda, - or - you have a statist type agenda of your own, based on the idea that a state can make 'moral' laws of some type, to control personal behavior. - Not so, under the 14th.
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Exactly. - I found that quote while trying to establish that the 14ths 'due process', in effect, - re-enforces the concept that prohibitive law on all types of property is unconstitutional without amendment.
It stands to reason that if the state cannot deprive a person of "-property, without due process-" that prohibitions on certain types of essentially harmless guns, drugs, pictures, etc, -- are 'purposeless restraints'.
You're absolutely right to completely ignore what the Fifteenth Amendment doesn't say.
it specifically says that states shall not use race as a criterion in awarding the franchise, and it gives Congress the power to make sure that they don't. It really couldn't be any clearer than that.
Now you've hit the nail right on the head. As you say, section 2 "gives Congress the power to make sure that they don't."
In connection with the adoption of the Voting Rights Act, Congress held lengthy hearings and made the factual determination that some states were using literacy tests for the purpose of denying and/or abridging the right of black citizens to vote and that the right of many black citizens to vote was in fact being denied and/or abridged because of that practice. Accordingly, it determined that it would be impossible to enforce the Fifteenth Amendment without suspension of the literacy tests. Given these factual determinations, Congressional legislation designed to stop an intentional violation of the Fifteenth Amendment was entirely "appropriate."
After passage of the Voting Rights Act, the black voter participation rates went up in the affected states. And before too long, even George Wallace of Alabama (who had always gone out of his way to cast himself as the Babe Ruth of segrationists) evolved into a valuable political friend of the black community.
Sooner or later, you're going to have to come to the realization that words have meanings. They're not just little pieces of window dressing that we make cool-sounding phrases out of. Process means process, not the substance of the law. If you're going to demand that government not be held to the meanings of the words that define their powers, then you shouldn't complain when they use that latitude you've so graciously given them, to do whatever they please.
CA is busy infringing my RKBA, with majority rule acceptance. The 14th is 'necessary' here, - NOW.
Translation: Your state's doing something you don't like, so you want the feds to get involved. You're sadly mistaken if you think Washington has any interest in protecting genuine liberty. They certainly will never use the 14th amendment to uphold 2nd-amendment rights, because they themselves have next to zero respect for those rights themselves. You'd have a much better chance of reforming your state government than reforming Washington, unless you think Washington is somehow inherently wiser - an odd position for a libertarian to take. Their history with the 14th amendment has been almost nothing but a history of judges using it to impose their personal preferences on society. What little it may have done to restrain states from doing things that truly violate peoples rights, has been completely overshadowed by the malignant growth of the federal government that the 14th made possible, albeit indirectly.
And its the job of the constitution to see that individual rights are not violated. - Checks & balances, remember?
The job of the Constitution is indeed to preserve checks and balances, and that's done in a variety of ways, not the least of which - as the name of our country strongly implies - is the division of power between the state and federal governments. The 14th amendment hamstrings the states in their ability to govern themselves, leaving the feds to fill in the vacuum - all while doing next to nothing to protect individual rights.
You appear to have bought into the states 'rights' propoganda, - or - you have a statist type agenda of your own, based on the idea that a state can make 'moral' laws of some type, to control personal behavior. - Not so, under the 14th.
I'm sure it would be great if we had small government at all levels, that stayed out of peoples' business and just did what was necessary to protect lives and property, but until the federal government starts living up to those standards, I don't understand how any sane person can demand that they be the guardians of our liberties against the states - their only meaningful competition. As a libertarian, I'm sure you can understand (and have probably heard before) that the more we demand of government to do for us, the more we authorize them to do to us. At no level of government does that hold more true than at the national level.
And just as a technical note, I'm wondering what you mean when you say that states don't have the power to pass "moral" laws to control personal behavior. You seem to subscribe to the "original intent" school of legal interpretation, so I'll ask you: Was it the intent of the framers of the 14th amendment to overturn all existing state laws against fornication, sodomy, incest, polygamy, etc.?
Not to sound heartless or anything, but so the hell what? You acknowledged at the beginning of your post that it was appropriate to ignore what the 15th amendment doesn't say, and it doesn't say that the states can't have impure motives when instituting suffrage criteria - it only says that they can't use that one particular criterion. Under what third-world conception of law do the authorities have the power to take action based on someone's reasons for doing what would otherwise be perfectly legal?
Accordingly, it determined that it would be impossible to enforce the Fifteenth Amendment without suspension of the literacy tests.
Then they were totally disconnected from reality. The literacy tests did not in any way interfere with Congress' ability to prevent racial tests from being instituted, which under the 15th, was the only thing they were allowed to even concern themselves with.
Sooner or later, you're going to have to come to the realization that words have meanings. They're not just little pieces of window dressing that we make cool-sounding phrases out of. Process means process, not the substance of the law. If you're going to demand that government not be held to the meanings of the words that define their powers, then you shouldn't complain when they use that latitude you've so graciously given them, to do whatever they please.
Another meaningless lecture mixed with straw men about what I supposedly 'demand'. --- You really believe in your powers of bafflegab, don't you? Whatta buncha bull.
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Well, CA is busy infringing my RKBA, with majority rule acceptance. The 14th is 'necessary' here, - NOW.
Translation: Your state's doing something you don't like, so you want the feds to get involved.
Translation: - You could care less that CA is violating the constitution. - Thanks for your admission.
You're sadly mistaken if you think Washington has any interest in protecting genuine liberty. They certainly will never use the 14th amendment to uphold 2nd-amendment rights, because they themselves have next to zero respect for those rights themselves. You'd have a much better chance of reforming your state government than reforming Washington, unless you think Washington is somehow inherently wiser - an odd position for a libertarian to take. Their history with the 14th amendment has been almost nothing but a history of judges using it to impose their personal preferences on society. What little it may have done to restrain states from doing things that truly violate peoples rights, has been completely overshadowed by the malignant growth of the federal government that the 14th made possible, albeit indirectly.
Thanks again. Your rant is very revealing of your fanaticism about the feds. I don't like federalism either, but I will not give up on respecting the constitution.
---------- And its the job of the constitution to see that individual rights are not violated. - Checks & balances, remember?
The job of the Constitution is indeed to preserve checks and balances, and that's done in a variety of ways, not the least of which - as the name of our country strongly implies - is the division of power between the state and federal governments. The 14th amendment hamstrings the states in their ability to govern themselves, leaving the feds to fill in the vacuum - all while doing next to nothing to protect individual rights.
You've made this same vague charge against the 14th this entire thread, yet never get to particulars. - All fancy rhetoric, it seems, but no real 'ham', just the string, the 'line'.
----------- You appear to have bought into the states 'rights' propoganda, - or - you have a statist type agenda of your own, based on the idea that a state can make 'moral' laws of some type, to control personal behavior. - Not so, under the 14th.
I'm sure it would be great if we had small government at all levels, that stayed out of peoples' business and just did what was necessary to protect lives and property, but until the federal government starts living up to those standards, I don't understand how any sane person can demand that they be the guardians of our liberties against the states - their only meaningful competition.
More 'straw men' demands. - Insane.
I DO demand the constitution be honored, by fed or state.
As a libertarian, I'm sure you can understand (and have probably heard before) that the more we demand of government to do for us, the more we authorize them to do to us. At no level of government does that hold more true than at the national level.
And just as a technical note, I'm wondering what you mean when you say that states don't have the power to pass "moral" laws to control personal behavior.
Did you even bother to read the 'due process' quote I posted this morning? - Are you really this dense? - Mindboggling myopia.
You seem to subscribe to the "original intent" school of legal interpretation, so I'll ask you: Was it the intent of the framers of the 14th amendment to overturn all existing state laws against fornication, sodomy, incest, polygamy, etc.?
Of course not. Most of those laws have a victim, - an injured party. - And a criminal who commited that injury. -- No one here has any problem with giving a fair trial to an accused criminal.
Many of us constitutionalists have problems with prohibitory 'laws' on victimless 'crime', however.
The "literacy tests" were one of the "racial tests" that had been instituted. In March, 1965, before the Voting Rights Act was implemented, only 6.7% of black adults were registered to vote in Mississippi. By November, 1988, that 6.7% figure had increased to 74.2%.
Well it looks to me like you "demand" that process be made to something other than process. And a forum like this one "demands" that you be clear in stating just what you mean. What is your understanding of the meaning of "due process of law"? It should be something you can answer in plain language, without quoting some judge, or pulling out some speech from a framer. It's a simple enough phrase, so it should have a simple enough meaning.
You could care less that CA is violating the constitution.
Notwithstanding the fact that it's only violating the Constitution as you read it, it's true that I'm not losing too much sleep about what's going on in another state, as long as they're not committing mass slaughters or something. Other than that, I'm happy to let you and the rest of the people of your state work things out for yourselves. I'll deal with my state.
Thanks again. Your rant is very revealing of your fanaticism about the feds. I don't like federalism either, but I will not give up on respecting the constitution.
In that last clause, you're confusing what the Constitution does say with what you think it should say. I know it's going to be difficult getting you to see what it does say, but as for what it should, it should not give the feds the power to control state laws and policies at whim, which is the power that they exercise now.
You've made this same vague charge against the 14th this entire thread, yet never get to particulars. - All fancy rhetoric, it seems, but no real 'ham', just the string, the 'line'.
Just to give two examples that I've already posted on this thread, one case from Boston in the '70's involved a "desegregation" order for the public schools in that city, even though neither the city nor the state had anything close to any kind of segregation laws on the books. The result was that thousands of students were forcibly bused to schools far from their neighborhoods, and their arrival at the new schools precipated waves of violence from those students already established there. Another case from St. Louis involved a judge deciding that the poor quality of the inner city schools was evidence of "unequal protection of the laws" and actually ordered taxes raised on the surrounding communities to pay for a new school (which ended up flopping anyway, because it didn't make the students any more motivated). And of course need I mention the numerous examples of the federal judges ruling against schools whenever the word "God" is mentioned loud enough for other students to hear? Or the harassment of police departments whenever they're accused of "racial profiling"? These things increase the cost of states running their schools, police departments, and other services. That, combined with their dependence on federal subsidies to do just about anything (which often is necessitated by the increased costs that litigation imposes), creates a culture of total submission to federal authority within state governments. So if a state were to take a principled stand against Washington overreaching - such as saying, "No, you're not going to federalize our airports" or "No, you're not going to take this child from this house and turn him over to Castro" - is it too much of a stretch of the imagination to think the feds (and their lefty pressure-group allies) would have ample means of punishing that state through legal harassment?
Let me ask you this: What has the 14th amendment, in practice, actually accomplished in protecting genuine liberty? I can think of the destruction of Jim Crow laws, but even that was then overshadowed by the reverse racism that developed, and by the feds getting more comfortable with using the National Guard as a national police force.
I DO demand the constitution be honored, by fed or state.
I think you demand considerably more than that. I think you demand that the Constitution charge the federal government with overseeing state laws to make sure they don't violate what you consider to be your rights, and I think you'd be adamantly opposed to any attempt to change the Constitution in way that removes that power of the feds. Is that true?
Was it the intent of the framers of the 14th amendment to overturn all existing state laws against fornication, sodomy, incest, polygamy, etc.?
Of course not. Most of those laws have a victim, - an injured party.
Huh?? Fornication has a "victim"? Sodomy has a "victim"? Even incest, when it doesn't result in pregnancy, has a "victim"? These are the kinds of laws I'm talking about, and I can guarantee you they were on the books in every state in the union in 1868, as well as in all of the territories, and they were taken seriously, too (they weren't just leftovers from the Puritan era or something). I'd be very interested in seeing whatever evidence you might have that the framers of the 14th amendment intended to overturn or even water down these laws.
I am not saying that all literacy tests are necessarily racial tests. All that I am saying is that Congress is empowered by Section 2 to enforce the Fifteenth Amendment by preventing a state from having a racial test for voting even though the state chooses to call it a literacy test. When, in March, 1965, 6.7% of adult blacks were registered to vote, 69.9% of adult whites were registered to vote.
How could you even begin to explain a disparity like that without considering the possibility that the state of Mississippi was violating the Fifteenth Amendment by using race as an important criteria in determining who was allowed to vote?
If, instead of Congress, the Constitution had empowered you to enforce the Fifteenth Amendment, what would you have done in response to those statistics?
Well, then I may be misunderstanding you. Are you saying that these weren't genuine literacy tests? Because if the election officials were in fact using race, not literacy, as a criterion, then federal authorities would have had the power to act, even without Congress passing a new law. It's called investigating, determining probable cause, making charges, conducting judicial proceedings, etc., you know, that whole "due process" stuff.
I said it added very specific provisions to the Constitution, not open-ended "natural law" mumbo-jumbo that basically says to judges that they can legislate however they damn well please.
You may be confused on what constitutes natural law. At its very finest and bedrock core foundation is this:
| Article 1: No person, group of persons, or government may initiate force, threat of force, or fraud against any individual's self or property. Article 2: Force may be morally and legally used only in self-defense against those who violate Article 1. Article 3: No exceptions shall exist for Articles 1 and 2. |
When a person is confused about this core foundation of natural law I ask them when they want to initiate force against a person or their property... Or, would they hire agents (government agents) to initiate force on their behalf -- thus the two become co-conspirators. If still confused I ask them when they want force initiated against themselves or their property.
Yes, sir, I'm afraid that's true, sir.
In post 112, I quoted to you a paragraph from a relevant Supreme Court opinion:
"Meanwhile, beginning in 1890, the States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia enacted tests still in use which were specifically designed to prevent Negroes from voting. Typically, they made the ability to read and write a registration qualification and also required completion of a registration form. These laws were based on the fact that as of 1890 in each of the named States, more than two-thirds fo the adult Negroes were illiterate while less than one-quarter of the adult whites were unable to read or write. At the same time, alternate tests were prescribed in all of the named States to assure that white illiterates would not be deprived of the franchise. These included grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter."
Because if the election officials were in fact using race, not literacy, as a criterion, then federal authorities would have had the power to act, even without Congress passing a new law. It's called investigating, determining probable cause, making charges, conducting judicial proceedings, etc., you know, that whole 'due process' stuff.
To begin with, the Constitution does not contain any provisions calling for criminal sanctions for its violation. The "federal authorities" (by which I assume you mean the Department of Justice/FBI) don't have the power to do anything "without Congress passing a . . . law." Aside from the President and Vice-President, the entire executive branch of the Federal Government has no right to even exist “without Congress passing a . . . law.”
In response to the Voting Rights Act, one of the arguments made by South Carolina was that Congress’s power under Section 2 should be interpreted very narrowly so that this congressional power would be limited to occasional meaningless legislation reminding states that of their obligations under the Fifteenth Amendment. This was the Court’s response to that argument:
“We therefore reject South Carolina's argument that Congress may appropriately do no more than to forbid violations of the Fifteenth Amendment in general terms - that the task of fashioning specific remedies or of applying them to particular localities must necessarily be left entirely to the courts. Congress is not circumscribed by any such artificial rules under 2 of the Fifteenth Amendment. In the oft-repeated words of Chief Justice Marshall, referring to another specific legislative authorization in the Constitution, ‘This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.’”
And do you notice that in that case it was the state of South Carolina that rested all of their hopes on finding some "activist" Supreme Court justices to declare a law unconstitutional?
Well it looks to me like you "demand" that process be made to something other than process. And a forum like this one "demands" that you be clear in stating just what you mean. What is your understanding of the meaning of "due process of law"? It should be something you can answer in plain language, without quoting some judge, or pulling out some speech from a framer. It's a simple enough phrase, so it should have a simple enough meaning.
It does, and I've answered. - You just didn't understand, or accept the 'simple meaning'. - Tough.
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You could care less that CA is violating the constitution.
Notwithstanding the fact that it's only violating the Constitution as you read it, it's true that I'm not losing too much sleep about what's going on in another state, as long as they're not committing mass slaughters or something.
Thanks for your admission. Rare honesty from a statist.
Your rant is very revealing of your fanaticism about the feds. I don't like federalism either, but I will not give up on respecting the constitution.
In that last clause, you're confusing what the Constitution does say with what you think it should say. I know it's going to be difficult getting you to see what it does say, but as for what it should, it should not give the feds the power to control state laws and policies at whim, which is the power that they exercise now.
Nope, the constitution doesn't give the feds the power. The political system has. YOU are the one confused.
You've made this same vague charge against the 14th this entire thread, yet never get to particulars. - All fancy rhetoric, it seems, but no real 'ham', just the string, the 'line'.
Just to give two examples that I've already posted on this thread, one case from Boston in the '70's involved a "desegregation" order for the public schools in that city, even though neither the city nor the state had anything close to any kind of segregation laws on the books. The result was that thousands of students were forcibly bused to schools far from their neighborhoods, and their arrival at the new schools precipated waves of violence from those students already established there. Another case from St. Louis involved a judge deciding that the poor quality of the inner city schools was evidence of "unequal protection of the laws" and actually ordered taxes raised on the surrounding communities to pay for a new school (which ended up flopping anyway, because it didn't make the students any more motivated). And of course need I mention the numerous examples of the federal judges ruling against schools whenever the word "God" is mentioned loud enough for other students to hear? Or the harassment of police departments whenever they're accused of "racial profiling"? These things increase the cost of states running their schools, police departments, and other services. That, combined with their dependence on federal subsidies to do just about anything (which often is necessitated by the increased costs that litigation imposes), creates a culture of total submission to federal authority within state governments. So if a state were to take a principled stand against Washington overreaching - such as saying, "No, you're not going to federalize our airports" or "No, you're not going to take this child from this house and turn him over to Castro" - is it too much of a stretch of the imagination to think the feds (and their lefty pressure-group allies) would have ample means of punishing that state through legal harassment?
You've made my point, - in 'bold'. -- The 14th is not the problem here. The states submit to the feds for political reasons, not constitutional ones.
Let me ask you this: What has the 14th amendment, in practice, actually accomplished in protecting genuine liberty? I can think of the destruction of Jim Crow laws, but even that was then overshadowed by the reverse racism that developed, and by the feds getting more comfortable with using the National Guard as a national police force.
Read some history. There are dozens of USSC decisions citing the 14th. Try 'findlaw'.
--------------- I DO demand the constitution be honored, by fed or state.
I think you demand considerably more than that. I think you demand that the Constitution charge the federal government with overseeing state laws to make sure they don't violate what you consider to be your rights, and I think you'd be adamantly opposed to any attempt to change the Constitution in way that removes that power of the feds. Is that true?
No.
Was it the intent of the framers of the 14th amendment to overturn all existing state laws against fornication, sodomy, incest, polygamy, etc.?
Of course not. Most of those laws have a victim, - an injured party.
Huh?? Fornication has a "victim"? Sodomy has a "victim"? Even incest, when it doesn't result in pregnancy, has a "victim"? These are the kinds of laws I'm talking about, and I can guarantee you they were on the books in every state in the union in 1868, as well as in all of the territories, and they were taken seriously, too (they weren't just leftovers from the Puritan era or something). I'd be very interested in seeing whatever evidence you might have that the framers of the 14th amendment intended to overturn or even water down these laws.
To be valid, common criminal law requires a victim, an injured party. -- You want the state to be that injured party. -- But the state has no 'rights' to injure.
The state has only the delegated power to enforce constitutional law protecting the rights of individuals, or groups of individuals, as in a common defense.
Apparently, you want the state to enforce 'morals' as a majority defines them. - And a tyranny of the majority is NOT a republican form of government, also guaranteed by the constitution. -- Can you say it isn't so?
Sorry, my bad. I missed that part. So anyway, that means that the federal government has the power to crack down on literacy tests - or any other types of tests - that are improperly administered with a racial bias, but Congress does not have the power to outlaw literacy tests that are not administered with a racial bias. Like I said, if the authorities need to take action, then they need to investigate actual cases, and take the type of action that any law-enforcement authorities would when they suspect an illegality of some sort.
And yes, the authorities do have the power to institute criminal proceedings, provided Congress vests them with such, but that doesn't mean that Congress has the power to do so with regard to actions that do not violate what the law says. In short, Section 2 in no way gives Congress the power to create new prohibitions, but merely to define the procedures and consequences that flow from violations of existing constitutional prohibitions.
It does, and I've answered. - You just didn't understand, or accept the 'simple meaning'. - Tough.
It's funny, because in the couple of months I've been on FR, I've encountered a number of different debating tactics. There've been some who've distorted what I've said, some who've just responded in these total tangential non sequiturs, and some who just get plain nasty. But you have a very unique style - you just outright dismiss points that contradict your position, and don't even bother to deal with them. It's actually kind of amusing.
But just in case you're willing to actually do some debating, I'll say this once again for your, uh, consideration. Due process refers to the actual process by which a law is administered. It has nothing to do with the kind of restriction on activity that the law imposes. I know that you want it to mean more than that. I know that your political philosophy calls for a very minimalist approach to governing (which really isn't all that bad a philosophy), but the law says what it says, not what you want it to say. Now you can dismiss that as nitpicking all you want - as if the meaning of the words contained in the laws has nothing to do with what the law actually says! - but you'll just be building a wall of ignorance around yourself (and judging from the results, it looks like construction is coming along just fine).
Thanks for your admission. Rare honesty from a statist.
So let's see: I was saying "Live and let live", and you were demanding federal intervention to right the wrongs in your locale, but I'm the statist. Ah yes, it's all clear now... (?)
Nope, the constitution doesn't give the feds the power. The political system has. YOU are the one confused.
What do you think, the 14th amendment enforces itself? What would have been the point of passing it if they didn't expect the feds to intervene to make it stick?
You've made my point, - in 'bold'. -- The 14th is not the problem here. The states submit to the feds for political reasons, not constitutional ones.
Well, sure, in a paragraph that size, you can pluck out just about any sentence in isolation and have it say something that was never intended. Allow me to highlight the points that would pluck it back into context: "That [referring to judicial harassment using the 14th amendment as a pretext], combined with their dependence on federal subsidies to do just about anything (which often is necessitated by the increased costs that litigation imposes), creates a culture of total submission to federal authority within state governments." In other words, 14th-amendment litigation makes states vulnerable to all sorts of Jesse Jackson-style pressure groups, and weakens their resistance. The increased costs that result from such litigation, along with the measures they have to take to avoid it, increases the states' dependence on Washington, which in turn further erodes their sovereignty. Get it? (why do I ask)
Read some history. There are dozens of USSC decisions citing the 14th. Try 'findlaw'.
I wasn't asking for all the cases which cite the 14th, I was asking you which ones you think were essential to furthering the cause of liberty in this country (or does Findlaw have a tpaine Hall of Fame section?)
I think you'd be adamantly opposed to any attempt to change the Constitution in way that removes that power of the feds. Is that true?
No.
Really? So you wouldn't be opposed to a repeal of the 14th amendment? Why didn't you just say so in the first place?
I'd be very interested in seeing whatever evidence you might have that the framers of the 14th amendment intended to overturn or even water down these laws.
To be valid, common criminal law requires a victim, an injured party. -- You want the state to be that injured party....Apparently, you want the state to enforce 'morals' as a majority defines them.
Nice try at evading my question by impugning my motives for asking (speaking of straw men). Maybe you'd like to try answering it, now?
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