PDA

View Full Version : Help me understand state vs US constitution


locosway
11-01-2009, 6:08 PM
So, I was reading a law book and, I'm going to paraphrase, but it says

A state can not take away any rights outlined in the US constitution, however, it can give more liberties that the US constitution does not.

So, if this is true, why are we in the gun control fight we're in right here in CA, and why are the Feds trying to remove medical marijuana from CA?

PolishMike
11-01-2009, 6:23 PM
Its a lot more complicated than that. The marijuana thing is because federal law supersedes state law. The bill of rights did not initially limit what states could do. It was not until the 14th amendment that a state could not take away your right to free speech, and even then it has to be decided through court cases. The gun control fight is going on because we have not had a SCOTUS decision on the issue yet as it pertains to states.

GaryV
11-01-2009, 6:23 PM
So, I was reading a law book and, I'm going to paraphrase, but it says

A state can not take away any rights outlined in the US constitution, however, it can give more liberties that the US constitution does not.

So, if this is true, why are we in the gun control fight we're in right here in CA, and why are the Feds trying to remove medical marijuana from CA?

Because it (what it says in your law book) is not true. Until the selective incorporation of parts of the Bill of Rights during the course of 20th Century, the states were not bound to respect any rights protected by the US Constitution, unless some provision of their own state constitutions also protected those rights. Since some of the Bill of Rights has still not been incorporated against the states (including the 2nd Amendment right to keep and bear arms), there are still some rights protected at the federal level but not within the states.

Several of the state constitutions are older than the US Constitution, so how could their provisions have been limited by something that didn't even exist when they were written? Unless your law book was written between the passage of the 14th Amendment (1868) and the Slaughterhouse Cases decision (1873), any statement such as the one you paraphrased would be false under existing Supreme Court case law. However, with any luck, that will change next year.

HondaMasterTech
11-01-2009, 7:15 PM
It's easy. The state of California has determined that they don't give a F---. I mean, what's the Federal Government going to do? Go up against the Tormentator?

locosway
11-01-2009, 7:26 PM
My book was written recently and by a lawyer. Let me get it out so I can quote it correctly.

A state cannot limit any rights granted to individuals by the US constitution or federal law, but they are free to expand those rights. States have the power to act in the best interests of their citizens, so long as the rights granted do not conflict with the US constitution or a federal statue.



The body of the US constitution contains no protections for individual rights. The task is left to the Bill of Rights. Similarly, the original Bill of Rights did not protect the individuals from infringement of those rights by the states. That protections was created in the Fourteenth Amendment. When we speak of rights "guaranteed by the constitution," we are speaking of a body of law that is constantly evolving.

kf6tac
11-01-2009, 7:38 PM
My book was written recently and by a lawyer. Let me get it out so I can quote it correctly.

The second quote you gave is the crux of the problem. The "protection created in the Fourteenth Amendment" of which the author speaks has not yet been interpreted to encompass our Second Amendment rights -- that is the question to be addressed by the Supreme Court in McDonald v. Chicago this term.

locosway
11-01-2009, 7:40 PM
The second quote you gave is the crux of the problem. The "protection created in the Fourteenth Amendment" of which the author speaks has not yet been interpreted to encompass our Second Amendment rights -- that is the question to be addressed by the Supreme Court in McDonald v. Chicago this term.

So, how can all rights apply to the states except for one?

Why do we need a decision to apply a right that would otherwise be incorporated if it had a different number?

kf6tac
11-01-2009, 7:41 PM
So, how can all rights apply to the states except for one?

Why do we need a decision to apply a right that would otherwise be incorporated if it had a different number?

Under incorporation doctrine as it exists right now, each right in the Bill of Rights has to be specifically incorporated on its own; the Fourteenth Amendment did not incorporate the Bill of Rights "wholesale." In addition to the Second Amendment, the Eighth Amendment protection against excess bail and the Seventh Amendment guarantee of jury trial in civil cases have never been incorporated.

TaxAnnihilator
11-01-2009, 7:42 PM
Boo selective incorporation! Although, incorporating the full thing would cause California fits if they had to Grand Jury every felony charge...

The second quote you gave is the crux of the problem. The "protection created in the Fourteenth Amendment" of which the author speaks has not yet been interpreted to encompass our Second Amendment rights -- that is the question to be addressed by the Supreme Court in McDonald v. Chicago this term.

kf6tac
11-01-2009, 7:44 PM
Boo selective incorporation! Although, incorporating the full thing would cause California fits if they had to Grand Jury every felony charge...

I'm hoping the Supreme Court throws out the Slaughter House cases just so I can watch California suffer from said fits :)

locosway
11-01-2009, 7:48 PM
Under incorporation doctrine as it exists right now, each right in the Bill of Rights has to be specifically incorporated on its own; the Fourteenth Amendment did not incorporate the Bill of Rights "wholesale." In addition to the Second Amendment, the Eighth Amendment protection against excess bail and the Seventh Amendment guarantee of jury trial in civil cases have never been incorporated.

So, what exactly did the 14th do?

kf6tac
11-01-2009, 7:51 PM
So, what exactly did the 14th do?

The highlights of the 14th:

1) Added the Equal Protection Clause

2) Added the Due Process Clause, which is the constitutional basis for the selective incorporation and substantive due process doctrines.

3) Added the Privileges or Immunities Clause, which was promptly eviscerated by the Supreme Court in the Slaughter House Cases; the petitioners in McDonald v. Chicago are pursuing the Privileges or Immunities Clause as one possible way of wholesale incorporation of the entire Bill of Rights.

TaxAnnihilator
11-01-2009, 7:54 PM
:clap:
I'm hoping the Supreme Court throws out the Slaughter House cases just so I can watch California suffer from said fits :)

a1c
11-01-2009, 8:02 PM
... and why are the Feds trying to remove medical marijuana from CA?

They're not. The DEA has mostly gone after people they suspected of illegal trafficking and using medical marijuana as a cover. The IRS has also gone after some pot clubs that were more commercial operations run by traffickers than medical dispensaries.

locosway
11-01-2009, 8:13 PM
The highlights of the 14th:

1) Added the Equal Protection Clause

2) Added the Due Process Clause, which is the constitutional basis for the selective incorporation and substantive due process doctrines.

3) Added the Privileges or Immunities Clause, which was promptly eviscerated by the Supreme Court in the Slaughter House Cases; the petitioners in McDonald v. Chicago are pursuing the Privileges or Immunities Clause as one possible way of wholesale incorporation of the entire Bill of Rights.

So, the 14th did nothing?

TaxAnnihilator
11-01-2009, 8:15 PM
Well sir, sarcasm aside (I am a fan of it), it left the courts to pick and choose the meaning of due process, equal protection, and privileges and immunities as it applies to the states.

So, the 14th did nothing?

kf6tac
11-01-2009, 8:17 PM
So, the 14th did nothing?

With respect to Second Amendment rights, nothing so far.

But since the Bill of Rights, standing alone, did not apply to the states, without the Fourteenth Amendment, there would be nothing in the Constitution to prevent the states from engaging in racial discrimination, infringing on free speech, infringing on religious freedom, engaging in warrantless searches and seizures, imposing cruel and unusual punishments, compelling criminal defendants to testify against themselves, denying legal representation to criminal defendants, denying due process of law, etc.

Cokebottle
11-01-2009, 8:19 PM
Also, there is a difference between Constitutional rights and laws.
Pot and other drugs are considered an illegal substance per federal law. There is no Constitutional right to the recreational use of any drug, be it a narcotic, weed, or alcohol.
Except for provisions related to manufacture and transportation, alcohol is mostly unregulated on the federal level when it comes to consumption.
States are more restrictive, with various age limits (I believe all 50 are up to 21 by now, but this was not the case in 1980), limits on the acceptable levels of alcohol (Utah's famous 3% beer), and hours and even days of sale (some states are still "dry" on Sunday).
On the other hand, the states cannot allow a private citizen to distill spirits, or manufacture alcoholic beverages for resale.

snobord99
11-01-2009, 9:42 PM
So, the 14th did nothing?

If that were true, we wouldn't even be having this discussion.

locosway
11-01-2009, 9:44 PM
With respect to Second Amendment rights, nothing so far.

But since the Bill of Rights, standing alone, did not apply to the states, without the Fourteenth Amendment, there would be nothing in the Constitution to prevent the states from engaging in racial discrimination, infringing on free speech, infringing on religious freedom, engaging in warrantless searches and seizures, imposing cruel and unusual punishments, compelling criminal defendants to testify against themselves, denying legal representation to criminal defendants, denying due process of law, etc.

I see, I guess then the 14th just wasn't clear enough, or well enough written at the time?

I mean, to leave an amendment's definition to be determined by a judge later on seems silly.

hoffmang
11-01-2009, 10:02 PM
I see, I guess then the 14th just wasn't clear enough, or well enough written at the time?

I mean, to leave an amendment's definition to be determined by a judge later on seems silly.

The Fourteenth Amendment was gutted by the Supreme Court shortly after it was adopted for largely racist reasons.

See:
http://en.wikipedia.org/wiki/The_slaughterhouse_cases
and
http://en.wikipedia.org/wiki/Colfax_massacre

There is no way to write a law that executes itself. Judges are required to interpret them.

-Gene

locosway
11-01-2009, 10:04 PM
There is no way to write a law that executes itself. Judges are required to interpret them.

-Gene

All laws, or some laws? It seems the CA laws are well enough written that judges will not interpret them.

snobord99
11-02-2009, 7:08 AM
All laws, or some laws? It seems the CA laws are well enough written that judges will not interpret them.

All laws. "It is emphatically the province and duty of the Judicial Department to say what the law is." (Marbury v. Madison) I'd recommend reading Marbury v. Madison.

Judges are always interpreting the law. Your thought of "well enough written that judges will not interpret them" is still judges interpreting the law. I think what you're actually referring to is just how many different interpretations there can be.

GaryV
11-02-2009, 7:46 PM
There is no Constitutional right to the recreational use of any drug, be it a narcotic, weed, or alcohol.

While this is considered true according to the way in which the law works today (because the fears of the Federalists about what would happen if we added a Bill of Rights - that only those rights would be protected - has come true), that's not what any of the Founding Fathers believed. If you read the debates between the Federalists and the Anti-Federalists, it's explicitly stated over and over again that there is indeed such a right, because there is no explicit grant of power in the Constitution to allow the government to regulate the use of any drug of any kind.


Except for provisions related to manufacture and transportation, alcohol is mostly unregulated on the federal level when it comes to consumption.

And that's largely because this is all the federal government is constitutionally empowered to regulate in terms of alcohol (or any other drug, for that matter). That's why it required a constitutional amendment to institute prohibition. They've just gotten creative in their interpretation of the Interstate Commerce power, and the courts have allowed them to get away with it. But they still have to maintain the fiction that they are only operating within their explicitly granted constitutional powers, as the federal school zone law showed.

Since it was the view of the Founding Fathers that anything the government was not given explicit powers over within the Constitution was, by definition, a reserved right of the people, and all such rights, whether listed in the Bill of Rights or not, were equally sacrosanct, your right to drink, smoke pot, drop acid, smoke crack, etc., was intended to be just as out of the government's power to regulate as your right to speech or religion.

coolusername2007
11-02-2009, 9:40 PM
The States should not have the power to trump the Constitution. They get around it because the Supreme Court bastardized the Constitution in Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833). This court unanimously decided the Bill of Rights did not apply to the States. Later this was upheld by United States v. Cruikshank, 92 U.S. 542 (1875). See http://en.wikipedia.org/wiki/Barron_v._Baltimore

I personally believe this was a massive miscarriage of justice and believe the people of the day should have risen up and revolted over such a horrible set of decisions.

The Constitution is explicitly clear in Article VI which states in part...
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...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."

In my opinion the Founders made the Bill of Rights "Amendments" for two reasons; 1. they where following the Constitutional process for implementing changes because it was already in effect (1789, the BoRs didn't get "ratified" until 1791). and 2. because they intended the BoRs to be wholly part of the Constitution, not some bastardized red-headed step child to the Constitution. Again, the Bill of Rights are not "laws", they are "amendments" to the Constitution. The only thing that can change that is another amendment. (A good example is the 18th Amendment, Prohibition. It could only be repealed by another amendment...which is was...the 21st Amendment.)

In short, the 14th Amendment was passed by Congress because they felt the same as you probably do...that SCOTUS botched the job and flat out decided wrongly. Unfortunately, as others have already posted here, SCOTUS then turned around and gutted parts of the 14th. Which by the way, in my very limited understanding of the system SCOTUS does NOT have the power to gut amendments to the Constitution, because by definition the Constitution has provisions for changes (they're called amendments) that require a super majority vote which is wholly Constitutional according to it. In a nutshell, something cannot be "unconstitutional" if it is in fact "constitutional". See this is the kind of crap that happens when you let lawyers (and judges) lead. (By the way I'm sure the legal eagles in this forum will completely disagree with me on those last statements.)

The Founders weren't dumb, they knew this would probably happen which is why the 2nd Amendment is there to begin with, in fact they where very clear...unfortunately the "powers that be" don't heed our form of government and the People haven't risen up against them, as is our duty.

James Wilson is a great example. (The following is taken from "The Second Amendment" by David Barton (www.wallbuilders.com)) James Wilson was one of only six who signed the Declaration of Independence and the Constitution. He was also one of the most outspoken (spoke 168 times on the floor of the Convention) and was an original Justice to the Supreme Court. He taught his students that the protections in our form of government were not new, but rather old rights granted to us by our Creator. He said...
"...to acquire a new security for the possession or the recovery of those rights to...which we were previously entitled by the immediate gift or by the unerring law of our all-wise and all-beneficent Creator."
Wilson also asserted that...
"...every government which has not this in view as its principal object is not a government of the legitimate kind."

John Adams agreed, declaring that:
Rights [are] antecedent to all earthly government; Rights...cannot be repealed or restrained by human laws; Rights [are] derived from the great Legislator of the universe.

And to put the final points on this entirely too long of a post...
“Our safety, our liberty, depends upon preserving the Constitution of the United States as our Fathers made it inviolate. The people of the United States are the rightful masters of both Congress and the Courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution." -- Abraham Lincoln

And so in a nutshell, the 14th was ratified to insure the Bill of Rights applied to the States once again, but was quickly undone in part, which is where we are today...we are left with the entirely lame and stupid "incorporation doctrine" because the Supreme Court does NOT like to overturn itself. So instead they started "incorporating" each of the Bill of Rights individually to the states and they aren't done yet (and may never will be). So here we are today hoping and praying the 2nd gets "incorporated" so we can kind of go back to where we started from 200+ years ago.

locosway
11-02-2009, 9:52 PM
I appreciate the long response, and it was a good read. It also clears up a lot of my questions. Thanks!

hoffmang
11-02-2009, 10:39 PM
In my opinion the Founders made the Bill of Rights "Amendments" for two reasons; 1. they where following the Constitutional process for implementing changes because it was already in effect (1789, the BoRs didn't get "ratified" until 1791). and 2. because they intended the BoRs to be wholly part of the Constitution, not some bastardized red-headed step child to the Constitution. Again, the Bill of Rights are not "laws", they are "amendments" to the Constitution. The only thing that can change that is another amendment. (A good example is the 18th Amendment, Prohibition. It could only be repealed by another amendment...which is was...the 21st Amendment.)

...

The Founders weren't dumb, they knew this would probably happen which is why the 2nd Amendment is there to begin with, in fact they where very clear...unfortunately the "powers that be" don't heed our form of government and the People haven't risen up against them, as is our duty.


I'm going to disagree with you for accuracy, not a policy disagreement. The Federal Government was originally of limited powers. The Federalists thought the Bill of Rights was kind of an amusing and useless add on because the Federal Government didn't have amongst it's enumerated powers the ability to mess with any of the stuff in the Bill of Rights. The Anti-Federalists jumped up and down about a missing BoR mainly as a political leverage point to try to weaken parts of the Federal Government substantively. However, the AF's didn't have anywhere near enough control of the Federal Government from a voting perspective to do anything real. However, the People latched on to the lack of a BoR and forced the (non) issue on the Federalists. By that point the AF's clearly didn't have enough power to create substantive change via the BoR so most of Congress just shrugged and created a BoR that would cause no push back from either side politically and would easily pass both Congress and the States. Importantly, later Supreme Court cases turned the islands of federal government power in a sea of liberty into a set of islands of liberty in a sea of government power...

As such, the BoR was supposed to encompass "motherhood and apple pie" concepts. However, Barron v. Baltimore may have been right as a matter of Federal Constitutional interpretation and wrong as a matter of natural rights/common law. We did fight a war over a version of that interpretation set from SCOTUS though. The case was Scott v. Sanford and the war was the Civil War.

The 14th Amendment was drafted and ratified to overturn both Scott and Barron but Slaughterhouse Cases read most of the amendment out of the Constitution.

-Gene

snobord99
11-03-2009, 6:41 AM
I'm going to disagree with you for accuracy, not a policy disagreement. The Federal Government was originally of limited powers. The Federalists thought the Bill of Rights was kind of an amusing and useless add on because the Federal Government didn't have amongst it's enumerated powers the ability to mess with any of the stuff in the Bill of Rights. The Anti-Federalists jumped up and down about a missing BoR mainly as a political leverage point to try to weaken parts of the Federal Government substantively. However, the AF's didn't have anywhere near enough control of the Federal Government from a voting perspective to do anything real. However, the People latched on to the lack of a BoR and forced the (non) issue on the Federalists. By that point the AF's clearly didn't have enough power to create substantive change via the BoR so most of Congress just shrugged and created a BoR that would cause no push back from either side politically and would easily pass both Congress and the States. Importantly, later Supreme Court cases turned the islands of federal government power in a sea of liberty into a set of islands of liberty in a sea of government power...

As such, the BoR was supposed to encompass "motherhood and apple pie" concepts. However, Barron v. Baltimore may have been right as a matter of Federal Constitutional interpretation and wrong as a matter of natural rights/common law. We did fight a war over a version of that interpretation set from SCOTUS though. The case was Scott v. Sanford and the war was the Civil War.

The 14th Amendment was drafted and ratified to overturn both Scott and Barron but Slaughterhouse Cases read most of the amendment out of the Constitution.

-Gene

+1

You pretty much said everything I was thinking after reading that post.

coolusername2007
11-03-2009, 8:20 AM
Thanks for the clarification Gene. I was trying not to get too long winded so I didn't get into the Federalist v Anti-Federalist arguments surrounding the Bill of Rights itself. But was trying to put perspective around the fact that (IMO) the Bill of Rights was very much intended to apply to the States. Many places today you will hear generally that the Bill of Rights was not intended to apply to the States, and I believe it was. I know some will disagree with this assertment though. Great history lesson thread though.

Dragonaught
11-03-2009, 8:26 AM
If this is truly a Government OF THE PEOPLE, BY THE PEOPLE & FOR THE PEOPLE; how can we possibly bestow and/or remove inherent rights and/or privileges on ourselves?

We can only make sure that they can't be taken away by an entity that has no legal right to do so.

Capt. Speirs
11-03-2009, 9:02 AM
With Obama’s blatant contempt for the US Constitution, we will be fortunate if he doesn't get it abolished.

TaxAnnihilator
11-03-2009, 9:57 AM
Orly? Just like that huh. Not a fan BHO, but this statement is of the kind of FUD I thought this site sought to dispel. I mean, how credible are we if when someone asks the difference between the state and federal constitutions and "won't matter for long because it's going away" is the answer?

Not to pick on you specifically, but there seems to be a lot of fear mongering here.

Or maybe your post could be supplemented to add context as to what rights your believe are being eroded on BHO's watch.

With Obama’s blatant contempt for the US Constitution, we will be fortunate if he doesn't get it abolished.

locosway
11-03-2009, 11:46 AM
I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

Foulball
11-03-2009, 11:48 AM
The most interesting part of the BOR (to me at least) is the preamble, which clearly notes that the BOR was for the states themselves.

"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

TaxAnnihilator
11-03-2009, 12:11 PM
I got this in HS and College... sorry you did not. Put attending School Board Curriculum Setting Meetings on the To Do list when I become a parent.


I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

TaxAnnihilator
11-03-2009, 12:18 PM
Oh, and you should look into showing your kids how California's constitution can be amended on the whim of only a small percentage of citizens. 8% of Voters in the past Gubernatorial election to get it on the ballot, then a majority of voters approving it! Then its there! There is a distinction for making major changes, thankfully.

The initiative and referendum process in California is ridiculously easy and detrimental to the fiscal health of the state, in my opinion.

kf6tac
11-03-2009, 12:25 PM
I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

Aside from the fact that teaching civics isn't really a high point on the public school agenda these days, stuff like this really does have many layers of complexity and is never as simple as one might expect. To really get a good grasp of it one has to read a lot of the source material from that era, starting with at least the Federalist and Anti-Federalist Papers -- and for the most part that's going to go right over the heads of anyone without at least a high school level education these days. I read some of the Federalist Papers late in high school and got the general gist of it, but it wasn't until law school that I really grasped it (and even then, only after I took two courses with a professor who was an avid legal historian).

locosway
11-03-2009, 12:37 PM
See, in school it was always the constitution and the BoR was set for the people. A clear list of their rights. Well, grown up and seeing that's not the case, it's disappointing to see that I was lied to in school. This view that people are limited in their rights is wrong, and is exactly how we got into the mess we're in today.

Cokebottle
11-03-2009, 12:43 PM
A clear list of their rights. Well, grown up and seeing that's not the case, it's disappointing to see that I was lied to in school.
Not exactly. The Constitution and the BoR are not so much a list of our rights, as they are a list of restrictions on the government.
This view that people are limited in their rights is wrong, and is exactly how we got into the mess we're in today.
Bingo... and this is in part because people are taught (by government-run schools) that the BoR is in fact a list of our rights and are the only rights that we have.

"The Bill of Rights gives you this, anything else is a gift from the government"

Wrong. The Bill of Rights guarantees us this. Anything else is something that the government has not yet taken away.

And that is the whole crux of the separation of Church and State issue.
The BoR was not written to prevent us from worshipping as we please, it was written to prevent the government from establishing an official state religion such as the Church of England.

locosway
11-03-2009, 12:56 PM
Not exactly. The Constitution and the BoR are not so much a list of our rights, as they are a list of restrictions on the government.

Bingo... and this is in part because people are taught (by government-run schools) that the BoR is in fact a list of our rights and are the only rights that we have.

"The Bill of Rights gives you this, anything else is a gift from the government"

Wrong. The Bill of Rights guarantees us this. Anything else is something that the government has not yet taken away.

And that is the whole crux of the separation of Church and State issue.
The BoR was not written to prevent us from worshipping as we please, it was written to prevent the government from establishing an official state religion such as the Church of England.

That's what I was saying...

In school I was taught that the BoR was my list of rights, and often you'd hear the argument "Show me where in the BoR's does it say you can do that".

There needs to be a fundamental change in how we're taught what our rights are, and how we got those rights. The ideas taught in schools (at least where I am) are wrong.

kf6tac
11-03-2009, 1:21 PM
That's what I was saying...

In school I was taught that the BoR was my list of rights, and often you'd hear the argument "Show me where in the BoR's does it say you can do that".

There needs to be a fundamental change in how we're taught what our rights are, and how we got those rights. The ideas taught in schools (at least where I am) are wrong.

Kind of. When you're dealing with the federal government, then "Show me where in the Bill of Rights does it say you can't do X" is the wrong question, because the federal government is one of limited powers; you should be asking, "Show me where in the Constitution does it say that the federal government can prevent me from doing X."

When you're dealing with the state governments, though, "Show me where in the Bill of Rights does it say you can't do X" is the pertinent question, at least for the most part. Unlike the federal Constitution, which grants certain limited powers to the federal government, state constitutions are generally crafted as documents intended to limit the otherwise plenary power of the state governments. In the absence of a state law or federal constitutional provision depriving the states of the power to act, the state can generally do it. This is partially why the RKBA situation in California is so precarious -- the Second Amendment is not (yet) incorporated, so it does not constrain the state's power, and the state constitution does not recognize a right to keep and bear arms.

bwiese
11-03-2009, 1:24 PM
Oh, and you should look into showing your kids how California's constitution can be amended on the whim of only a small percentage
of citizens. 8% of Voters in the past Gubernatorial election to get
it on the ballot, then a majority of voters approving it! Then its there!

The passage of Prop 8 reflects, really, a money game.

The Mormon Church injected (likely illegally - I believe their religious tax-exempt status is well-threatened) large sums of money before more localized LGBT teams organized their fundraising response.

Fortunately, Prop 8 will be overturned because it facially differs little from Jim Crow laws - it involves a denial of a government-conveyed status (with benefits) on a subset of people for mere "personal dislike" reasons. It's not really much different than banning Chicanos from public parks, or saying blacks in Mississippi need to be off the street before sundown.

locosway
11-03-2009, 1:27 PM
So, with Marbury v Madison, how did we get from Judiciary review of laws to Judiciary review of amendments which are supposed to be part of the constitution and not up for interpretation?

kf6tac
11-03-2009, 1:30 PM
So, with Marbury v Madison, how did we get from Judiciary review of laws to Judiciary review of amendments which are supposed to be part of the constitution and not up for interpretation?

I'm pretty sure there's nothing saying that the Constitution is not up for interpretation. Marbury v. Madison itself was an interpretation of the powers granted to the federal judiciary by the Constitution. The judiciary is the final authority on what the laws mean (or, to borrow words from Marbury v. Madison, "to say what the law is"), but "laws" in this context includes both the Constitution itself and the enactments of Congress.

locosway
11-03-2009, 1:33 PM
But the constitution and it's amendments are not laws, they're restrictions on the government which are clearly written as far as most people are concerned. I understand that Marbury v Madison gave the judiciary the power to interpret laws, but it didn't say anything about the constitution.

TaxAnnihilator
11-03-2009, 1:42 PM
I will take your comment and raise you my comment! I think that MOST propositions are about someone getting paid out of turn - teachers, police, firefighters, prison guards to name a few.

Why elect a legislature and then take their power to balance the budget away by passing Bond after Bond after...

People are entirely too emotional and uninformed to have this power.

On the Morman issue, I have taken a Taxation of Non-Profits LLM course which taught me the so called rules and was shocked to find that in reality big institutions get away with lobbying activities that would put CGF out of business.

Can your read the disillusioned tone of my young voice. Depressing. Really.


The passage of Prop 8 reflects, really, a money game.

The Mormon Church injected (likely illegally - I believe their religious tax-exempt status is well-threatened) large sums of money before more localized LGBT teams organized their fundraising response.

Fortunately, Prop 8 will be overturned because it facially differs little from Jim Crow laws - it involves a denial of a government-conveyed status (with benefits) on a subset of people for mere "personal dislike" reasons. It's not really much different than banning Chicanos from public parks, or saying blacks in Mississippi need to be off the street before sundown.

kf6tac
11-03-2009, 1:43 PM
But the constitution and it's amendments are not laws, they're restrictions on the government which are clearly written as far as most people are concerned. I understand that Marbury v Madison gave the judiciary the power to interpret laws, but it didn't say anything about the constitution.

The Constitution itself says that the Constitution (along with certain other things) is part of the "supreme law of the land." Plus, the Supreme Court was interpreting the Constitution as early as 1798 (Calder v. Bull, interpeting the scope of the ex post facto clause), if not earlier. The Justices at the time were all of the same generation that had ratified the Constitution; three of them were members of the Constitutional Convention and two others were well-known Federalists who pushed for ratification. If the Constitution was meant to be beyond interpretation, I'd think that they would have been the first to say it, and their contemporaries the first to cry foul if they did it anyway.

locosway
11-03-2009, 1:52 PM
The Constitution itself says that the Constitution (along with certain other things) is part of the "supreme law of the land." Plus, the Supreme Court was interpreting the Constitution as early as 1798 (Calder v. Bull, interpeting the scope of the ex post facto clause), if not earlier. The Justices at the time were all of the same generation that had ratified the Constitution; three of them were members of the Constitutional Convention and two others were well-known Federalists who pushed for ratification. If the Constitution was meant to be beyond interpretation, I'd think that they would have been the first to say it, and their contemporaries the first to cry foul if they did it anyway.

Good point

GaryV
11-03-2009, 5:33 PM
I've never taken a college level government course, but in HS I did take History. Home come this was never talked about? It seems that if these ideas of what really was, instead of what people think it was, were to be pushed, we would have less problems than we do.

Another reason I'm glad my kids are home schooled...

Part of the problem is that public schools are run by the government, which itself works in many ways like a religion (as any organization does). And one of the first things a religion does is to construct a mythology that justifies the religion's own existence. As time goes on, the mythology evolves to be less and less based in reality and more and more based on justifying the existence and then authority of the religion.

So, what we get taught about US history in public schools is mostly a complete myth hung together on a bare framework of relatively worthless facts that at least lend the mythology an air of truthfulness. For example, I recently read a debate about Columbus Day. One participant criticized another by saying that all he must remember from what he was taught was the little ditty that starts "In 1492, Columbus sailed the ocean blue". But is this really a bad thing? Besides the date, and the names of his ships, virtually nothing that is taught through high school about Columbus is true. Instead, it's almost all a completely fictional founder myth that was largely invented in the 19th and 20th century.

As one researcher into the quality of high school history education noted, history is probably the only subject where college and university professors prefer their students to have been taught less rather than more at the high school level, because that means they have fewer fictions to unlearn before they can taught the real facts in the field.

locosway
11-03-2009, 5:50 PM
Yes, I noticed this taking college level history. There was a night and day difference.

GaryV
11-03-2009, 6:00 PM
The most interesting part of the BOR (to me at least) is the preamble, which clearly notes that the BOR was for the states themselves.

"The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added."

I'm not quite clear whether you mean that it was made for the good of the states themselves, or to limit the states. While the preamble could be construed to mean the former, it most certainly does not mean the later. It says that, during the ratification process, several of the states made it clear that they wanted a BoR so that the powers granted in the federal constitution (to the federal government), would not be abused (by the federal government). If anything, the preamble indicates that the BoR was originally intended as a limitation only on the federal government, since the powers referred to were primarily only federal powers.

kf6tac
11-03-2009, 6:23 PM
I'm not quite clear whether you mean that it was made for the good of the states themselves, or to limit the states. While the preamble could be construed to mean the former, it most certainly does not mean the later. It says that, during the ratification process, several of the states made it clear that they wanted a BoR so that the powers granted in the federal constitution (to the federal government), would not be abused (by the federal government). If anything, the preamble indicates that the BoR was originally intended as a limitation only on the federal government, since the powers referred to were primarily only federal powers.

I think the language is mostly an artifact of the fact that the Constitution was meant to establish a republic of 13 united states, not a democracy consisting of the people living in the 13 states. Through the pre-Civil War portions of the Constitution, the states -- not the people -- are consistently the unit that receive primary importance. Electoral votes are allocated by state; United States Senators were appointed by the state governments; the Constitution and any amendments are ratified by a super-majority of the states, not of the population at large; etc.

locosway
11-03-2009, 6:43 PM
With an electoral college, why do we still do the popular vote? It means nothing, so I just don't get it.

Also, since we ARE in an electoral college, why do we vote one way for locals, or not vote at all for locals, but then vote or vote differently for the president?

kf6tac
11-03-2009, 6:50 PM
With an electoral college, why do we still do the popular vote? It means nothing, so I just don't get it.

Also, since we ARE in an electoral college, why do we vote one way for locals, or not vote at all for locals, but then vote or vote differently for the president?

The way the electoral college originally worked in the presidential elections right after ratification was that individuals put themselves on the ballot to run as electors to represent their state. People went out and voted for electors, not for presidential candidates -- although the electors themselves probably ran based on which presidential candidate they intended to vote for. Then the electors would get together and submit their electoral votes for president. The idea, again, was that the federal government represents the federation of states -- so it should be state representatives (of a sort) who elect the president.

In the time since then, though, just about all of the states have altered their election laws (perfectly legally, since the Constitution leaves the governance of elections up to the states, as long as they comply with certain boundaries set by the Constitution) so that the electors for each state are an all-or-nothing proposition -- whichever candidate wins the state gets all of the electors. It kind of guts the republican (small R) idea that was originally embodied by electoral college, but in the post-Civil War era, that is not particularly unusual.

Cokebottle
11-03-2009, 6:56 PM
With an electoral college, why do we still do the popular vote? It means nothing, so I just don't get it.

Also, since we ARE in an electoral college, why do we vote one way for locals, or not vote at all for locals, but then vote or vote differently for the president?
We have always voted for our local representatives.
The Presidential election is the only truly "national" election.

In the days before modern transportation, it took months for news to cross the country, so along with electing our local (including Washington) representatives, we voted for representatives who would travel to Washington to cast their vote for our candidate.
The electors could, but rarely if ever did, change their vote... so in effect, the people have never voted directly for their President, simply for delegates to elect them, the same way the primaries are handled.

Also, if the people voted directly, the candidates would have spent 100% of their time in the population centers and would make no effort to support those in rural areas/states.


Is it still needed?
States with large population centers do, and would remain to be the focus of campaigning even without the electoral college.

GaryV
11-03-2009, 7:38 PM
I think the language is mostly an artifact of the fact that the Constitution was meant to establish a republic of 13 united states, not a democracy consisting of the people living in the 13 states. Through the pre-Civil War portions of the Constitution, the states -- not the people -- are consistently the unit that receive primary importance. Electoral votes are allocated by state; United States Senators were appointed by the state governments; the Constitution and any amendments are ratified by a super-majority of the states, not of the population at large; etc.

Certainly this is true, but it is also a very plain and simple statement of known fact. The Constitution was debated and ratified by "The conventions of ... the States", and "a number of" them "expressed a desire...that further declaratory and restrictive clauses", i.e., a BoR, "should be added" "in order to prevent the misconstruction or abuse of its (the Constitution's) powers". If we just look at the plain meaning of the words, it's nothing more than a statement of historical facts surrounding the reason for the addition of the BoR - that many state representatives feared that the Constitution established a federal government with a little too much power for their liking, and that it'd be better to include some explicit limits on its power, rather than just trust that it would automatically limit itself to explicitly granted powers.

Your points express what I meant about the fact that the preamble could be read to mean that the BoR was for the benefit of the states, to protect their rights from federal infringement. As Akhil Reed Amar points out, the entire BoR originally (pre-Civil War) had a very strong "collective rights" component, as well as protecting individual rights, because, as you said, the states had more importance then than now.

snobord99
11-03-2009, 8:21 PM
Oh, and you should look into showing your kids how California's constitution can be amended on the whim of only a small percentage of citizens. 8% of Voters in the past Gubernatorial election to get it on the ballot, then a majority of voters approving it! Then its there! There is a distinction for making major changes, thankfully.

The initiative and referendum process in California is ridiculously easy and detrimental to the fiscal health of the state, in my opinion.

There's a reason we have the longest Constitution in the nation. I don't even think it should be called a "Constitution."

Foulball
11-03-2009, 8:38 PM
Certainly this is true, but it is also a very plain and simple statement of known fact. The Constitution was debated and ratified by "The conventions of ... the States", and "a number of" them "expressed a desire...that further declaratory and restrictive clauses", i.e., a BoR, "should be added" "in order to prevent the misconstruction or abuse of its (the Constitution's) powers". If we just look at the plain meaning of the words, it's nothing more than a statement of historical facts surrounding the reason for the addition of the BoR - that many state representatives feared that the Constitution established a federal government with a little too much power for their liking, and that it'd be better to include some explicit limits on its power, rather than just trust that it would automatically limit itself to explicitly granted powers.

Your points express what I meant about the fact that the preamble could be read to mean that the BoR was for the benefit of the states, to protect their rights from federal infringement. As Akhil Reed Amar points out, the entire BoR originally (pre-Civil War) had a very strong "collective rights" component, as well as protecting individual rights, because, as you said, the states had more importance then than now.

That's how I read it too Gary. The states wanted certain, unassailable rights for their citizens to protect them from an encroaching federal government. Among them the right to arms. It's kind of ironic to me that some states would take some rights away from citizens and the Feds would have to help the people restore those rights. The founding fathers were afraid of too powerful a central government taking away citizens rights, not the states. I'm sure if they could re-write it now, they would include better language.