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Author Topic: The Bill of Rights and State Government
Adam Lassek
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In another thread, Doug64 replied to me regarding the Bill of Rights:

quote:
Originally, the Bill of Rights applied only against the federal government. The 14th Amendment supposedly incorporated the Bill of Rights to the states, but the parts designed to protect the state governments from Washington (like the 10th) are a little difficult to apply against those states.

The problem is that while applying the Bill of Rights against Washington is easy - just strike down any law Washington passes that intrudes in areas set off-limits - you can't do that against the states, because then you get things like striking state laws that are needed, such as reasonable gun control laws. So the courts came up with the overriding state interest idea. That worked fine, but then the courts started applying the same standards to Washington and that's a real problem.

If this is truly the case, then I find it somewhat alarming. If something is specifically enumerated as a Right in the Constitution, can the States actually turn it into a privalege? How can this possibly not infringe upon the Right?
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Everard
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Dougs wrong on this, and I've pointed it out several times. The constitution states within the original document that it supercedes the rights of the states to make legislation.

Article Vi of the constitution states in part

"This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, 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 notwithstanding."

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Sancselfieme
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Everard is right, unfortunately a federal law can even supercede states' Constitutions even if it was passed after the state's constitution was accepted. There's not much that federal law can't override.

[ December 05, 2004, 11:32 PM: Message edited by: Sancselfieme ]

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Zyne
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Kinda, sorta, maybe, IMO...

Federal law is supreme, it trumps state law, including state constitutions, so long as there is a legal (federal constitutional) basis for the implementation of that law within the states. First in time doesn't matter when it's (legal) federal statute versus state constitution, the federal statute wins. We have a long history of the feds deciding cases between/among/within the states prior to the 14A.

14A is special, because it specifically says that the feds can enforce its terms through legislation. So it is its own authority for statutes which accomplish its purpose, you don't need another clause, and the amendment itself is remniscent of alot of the rest of the document.

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Paladine
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quote:
"....The constitution states within the original document that it supercedes the rights of the states to make legislation.

Article Vi of the constitution states in part

"This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, 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 notwithstanding."

Well, yes, this is true. But an amendment holding that "Congress shall pass no law respecting..." (e.g. 1st) is binding only on the Congress, not on a state legislature. This isn't because the state legislature or Constitution trumps the federal Constitution, it's because the Amendment only deals specifically with federal action ("Congress").

When the framers make mention of Congressional action in one amendment, but word every other amendment in the Bill of Rights in such a manner such as "The right of the people to do X shall not be infringed" or "No person shall be made to Y" without mention to a specific body, it is implied that this (first) prohibition *does not* extend to state government action, while in the latter cases the prohibition is binding on state and federal government.

The 1st Amendment though, properly read, is only prohibitive with respect to federal action. Accordingly, findings that the Establishment Clause (also frequently mistranslated and grossly distorted) prohibits a state courthose from having a monument of the Ten Commandments is judicial activist anti-Constitutional bunk.

Additionally, the question of federal law with respect to the supremacy clause is a tricky devil. Yes, federal laws do supercede state laws, but Congress doesn't have a right to rule about anything it pleases. The powers of Congress are delegated and the sphere within which it has independent legislating authority is limited, as found in Missouri v. Holland.

That was a very interesting case, and one Supremacy Clause fans like to wave in the faces of states' righters. I don't have a particular problem with the case because the decision clearly explains something which we seem to have forgotten since 1920: that the lawmaking powers of Congress are limited.

Had Missouri v. Holland involved the question of a state law enjoining enforcement of a federal law dealing with the same thing (protections for migratory birds), the Court would have found in favor of Missouri, because the majority in its opinion acknowledges that Congress has no authority under the Constitution, no delegated power, to deal with the substance of the act.

The Court comes down the way it does because it (somewhat bizarrely, in my mind) states that Congress has treatymaking powers in areas that extend past its legislative powers. Federal laws that are not made in pursuance of the Constitution are inferior not only, Constitutionally speaking, to state law, they're inferior to my desire to sniff some coke, regardless of any recent judicial misinterpretations.

(Edits: I'm tired and it's 12:44 AM, sorry ;P)

[ December 06, 2004, 12:44 AM: Message edited by: Paladine ]

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Doug64
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I'll have to wait till this afternoon to respond to the comments on the Incorporation Doctrine, but as for the idea that treaties can invalidate other parts of the Constitution, I find the idea ludicrous. If that were true, we could make a treaty with another country requiring that all Muslims be sent to that country, regardless of citizenship, and it would be constitutional.

We had something similar happen in Nevada awhile back, when the Nevada SC decided that that state's constitutional duty to fund schools outweighed the constitutional requirement to pass a budget by a 2/3 majority and so only a simple majority was needed. While an impeachment effort failed, at least the legislature did its duty by passing the budget by a 2/3 majority anyway.

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Paladine
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The idea isn't that treaty powers invalidate other parts of the Constitution, it's that those powers extend to spheres of influence that are neither delegated nor denied. The situation Doug described brings up civil liberties questions that, while interesting, are a separate issue.

One could reasonably hold that Congress has treatymaking powers extending beyond its legislative sphere of influence so long as those treaties don't make use of powers explicitly denied by the Constitution. This still seems to me a bizarre interpretation of the Constitution, as it would allow Congress to backdoor legislation on virtually anything by making a treaty with another country to the desired effect.

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Zyne
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Congress doesn't make treaties.
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RickyB
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It approves or validates them, though, doesn't it?
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Zyne
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Yes, but the text comes from the Pres.
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Paladine
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Well, the party voting on and authorizing the enactment of a treaty can reasonably be said to be making it in my book. Regardless, it's a peripheral point at best.
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Doug64
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As promised, my take on the Incorporation Doctrine and the 14th Amendment. The following comes from The Bill of Rights, by Akhil Reed Amar.
quote:
"No State shall ..."

For those in the incorporation camp, the key sentence gets off to a great start. Anyone paying the slightest attention to constitutional text would find the same phrase in Article I, section 10, imposing various limitations on states, including several key rights designed principally for the benefit of in-state residents: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." In 1810, Chief Justice Marshall's opinion for the Court in Fletcher v. Peck declared that the language of Article I, section 10 "may be deemed a bill of rights for the people of each state," a phrase repeated by the Supreme Court in 1853 and again in 1866, the same year in which the Fourteenth Amendment was drafted. Of course, the Court did not mean to suggest that the catalogue of section 10 rights was identical to the list laid out in the first ten amendments - otherwise the entire Barron and incporporation debates would be moot. But the language of Fletcher and its progeny does confirm the rhetorical resonance between the phrase "No State shall" and the idea of a federally enforceable "bill of rights" against state governments. Madison had intuited this resonance a dozen years before Fletcher when he proposed to include in his "bill of rights" an amendment that "No State shall" abridge various rights of religion, expression, and jury trial.

Far more dramatic evidence of this resonance comes from Barron, where a unanimous Supreme Court stated that, had the framers of the original Bill of Rights meant to impose its rules on states, they would have used the Article I, section 10 phrase "No State shall" or some reasonable facsimile. But if the framers of the original Bill were entitled tp rely on rules of construction implicit in the Philadelphia Constitution and made explicit by Publius in The Federalist No. 83, surely the framers of the Fourteenth Amendment were entitled to rely on the authoritative language of Barron itself. The Supreme Court Justices in Barron asked for "Simon Says" language, and that's exactly what the Fourteenth Amendment gave them.

Earlier drafts of the key sentence had omitted the words "No State shall" in favor of other formulations, but as Congressman John Bingham explained several years after the amendment's adoption, he rewrote section I in response to and in reliance upon Barron:

"In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866, ... I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: `Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.'

"Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said `no State shall emit bills of credit ...'; imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution...."



[ December 06, 2004, 09:59 PM: Message edited by: Doug64 ]

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Doug64
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I was in such a hurry I forgot to add my own thoughts. Basically, I think that the framers of the 14th Amendment intended to apply those parts of the Bill of Rights to the states that are not designed to specifically protect the state governments. Those parts are pretty much limited to the establishment clause of the 1st Amendment and the 10th Amendment. All the rest now applies against the states in at least some form: amendments 3-8 can be applied straight up, but amendments 1 & 2 require the ability of the states to pass common sense legislation so strict application is impossible (for states).
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The Drake
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quote:
Originally posted by Paladine:
One could reasonably hold that Congress has treatymaking powers extending beyond its legislative sphere of influence so long as those treaties don't make use of powers explicitly denied by the Constitution. This still seems to me a bizarre interpretation of the Constitution, as it would allow Congress to backdoor legislation on virtually anything by making a treaty with another country to the desired effect.

The Executive must originate all treaties, the Senate approves with 2/3 vote, similar to the way that judicial appointments work.

http://www.senate.gov/artandhistory/history/common/briefing/Treaties.htm

However, since the House is not involved, the Senate and the Executive could make effective law by backdoor treaty. Of course, if your bill has 2/3 of the Senate ready to vote, you'd probably have enough support in the House to make a regular law.

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Zyne
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I swear I am not picking, it is just that Drake's bolding brought out another part to me:

quote:
... so long as those treaties don't make use of powers explicitly denied by the Constitution.
Maybe Doug or someone else can chime in: I would not have thought that the Constitution would apply to protect foreigners outside of the US. Arguably, the Geneva Convention is the only thing that makes torture of foreign prisoners held outside of the US illegal; our own constitution's 'cruel and unusual' does not apply to those people. So I don't think that government has to backdoor here, I think they can simply decline to legislate against Americans doing bad thing X Y or Z.
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Paladine
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I know how the treaty ratification process works. Maybe something I've written makes it appear as if I failed 4th grade social studies? ::shrugs::

--------------------------------------------------

Zyne-

Thanks for not picking. My post was in reply to Doug who talked about signing a treaty that would involve deporting all Muslims (who were presumably American citizens). I am aware that Constitutional protections don't apply outside of our borders; I was making reference to a hypothetical case in which a treaty with a foreign government had an effect on American citizens inside the United States.

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The Drake
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Well, Paladine, every treaty with a foreign government has an effect on American citizens inside the US. I presume you mean a foreign treaty in conflict with some basic right outlined in the Constitution. I'm certainly not qualified to offer an opinion on that point.

I'm sorry if you took offense that I corrected some of the basics, but we have a lot of people here from other countries and backgrounds, and Congress isn't the same as the Senate - and treaties can't get made without starting in the Executive. I felt they were important points to outline.

I guess I missed your true point, because I can't recall anything that the Congress has been denied lately by the Constitution. The sphere of influence of the Federal government has been construed more widely with every passing session, until I believe it is now at the point where the roles are reversed -- and in practice the Federal government has direct or indirect control of everything. Unless I'm still missing it [Smile]

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Pete at Home
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Sad thing is that federalists seem completely oblivious that there's a case sitting in the Supreme Court that looks likely to greatly expand the Wickard holding -- from federal "commercial" control of farms based on "aggregate" logic, to federal control of home gardening based on "aggregate" logic. When you looked at the actual facts of the case, Wickard wasn't that bad (the farmer was not just feeding his family with the excess grain; he was also feeding his cattle which he was fattening up for market -- so there was an actual affect on commerce.) The Supreme Court seems likely to expand Wickard into our homes, with this Raitch v. Ashcroft case, and no one seems to care about it.

[ December 07, 2004, 02:17 AM: Message edited by: Pete at Home ]

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Paladine
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Anyone have an opinion about the 1st Amendment prohibiting state as well as federal action? The rest of the Bill of Rights is clearly binding on both, but "Congress shall make no law" seems pretty specific to me.
-------------------------------------------------
Drake-

I don't take offense overly much; I'd just rather the main point of my posts be addressed more than peripheral snipings. If I'm posting intelligently about the Supremacy Clause, chances are I know the treaty ratification process. I could've phrased it a bit better, but I just assume that stuff's common knowledge to anyone reading the thread.

Yes, if you read my comments in context it's obvious that I was referring to a situation in which the treaty would conflict with a civil liberty. Given the context I didn't feel the need to specifically state it, but I guess you did, so thanks again.

And yeah, the extent to which the federal government has overreached its original purpose is something I find deeply disturbing. It's quickly becoming the leviathan the framers feared.

-------------------------------------------------
Pete-

That's the case concerning pot legalization in California conflicting with the federal statute? Given that it's a medical issue, why wouldn't it fall under the Court's imagined "right to privacy"?

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The Drake
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I've been following that case. The imagined "right to privacy" colliding with the federal government's imaginary power over intrastate commerce. I can't take it any more.
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Doug64
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quote:
Anyone have an opinion about the 1st Amendment prohibiting state as well as federal action? The rest of the Bill of Rights is clearly binding on both, but "Congress shall make no law" seems pretty specific to me.
None of the Bill of Rights originally applied to the states, and it's hard to see how the 10th Amendment can be applied now. As for the 1st, I think all but the "establishment" clause apply to the states. Since that clause was written in such a way as to protect state governments from federal oversight when establishing religions, I don't really see how it can now be applied against them.
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FiredrakeRAGE
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Pete -

I care about Raitch v. Ashcroft [Smile]

--Firedrake

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