Concordia res Parvae Crescunt
by Kevin R.C. Gutzman
With its decision in Nordyke v. King last week, in which the recent Supreme Court Heller decision was applied to state law, the Ninth U.S. Circuit Court of Appeals took another step down the long road of “incorporating†the Bill of Rights into the Fourteenth Amendment’s Due Process Clause.
In doing so, it continued down the path toward completely inverting the model of government to which The People agreed when they ratified the Constitution.
The Preamble to the Bill of Rights says, in part, “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… RESOLVED … that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States ….â€
(Are you surprised that you have never read this before? That it is not usually included in printed versions of the Constitution? What accounts for that omission, do you think?)
Unsurprisingly, then, the First Amendment begins by saying, “Congress shall make no law.â€Â Why? Because, as stated in its Preamble, the purpose of the Bill of Rights was to ensure that the Federal Government did not abuse its powers.
So widely was this understood to be the purpose of the Bill of Rights that in Barron v. Baltimore (1833), Chief Justice John Marshall for a unanimous Supreme Court ruled that the Bill of Rights limited only the powers of the Federal Government, not those of the states. This was the only significant constitutional decision in which Marshall ever ruled against federal authority.
James Madison endeavored in the First Congress to include in Congress’s proposed bill of rights an amendment providing for federal judicial oversight of states’ behavior in respect to certain rights. His effort was unavailing.
Thus, when “originalist†Antonin Scalia announced that the First Amendment establishes a right to burn a flag enforceable by federal courts against state authorities, he showed exactly how “originalist†he really is.
When Randy Barnett took to the pages of The Wall Street Journal last week to state that federal protection of all individual rights against state infringement was part of the original plan of the U.S. Constitution, he revealed how concerned with the consent of the governed he really is.
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No, Justice Scalia's interpretation of the 1st A. does not reflect the intentions of the Founders concerning the original scope of the BoR.
However, noting that I haven't reviewed Nordyke v. King, it is important to consider that John Bingham, the main author of Sec. 1 of the 14th A., included the 2nd A. when he read the first eight amendments as examples of statues containing privileges and immunities that the 14th A. applied to the states. In fact, see the 2nd A. in the middle column of the page from the Congressional Globe at the following link. The page is from Bingham's post-ratification clarification of that amendment.
http://tinyurl.com/y3ne4n
So the 9th Circus Court's decision concerning the 2nd A. does indeed reflect the intentions of the 39th Congress in my opinion, even if accidentally, the USSC's practice of selective incorporation a baseless invention of the Court as evidenced by historical congressional records.
But don't go away mad just because the post-Civil War 39th Congress rearranged the furniture with respect to the scope of certain aspects of the BoR. There's good news too.
More specifically, in stark contrast to the USSC's indefensible argument that the 14th A. essentially applied the BoR in its entirety to the states, the 1st A.'s prohibition on certain powers of the federal government for example, note that Bingham had also emphasized that the 14th A. was to take away no state powers.
"The adoption of the proposed amendment will take from the States **no rights** (emphasis added) that belong to the States." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/2rfc5d
"**No right** (emphasis added) reserved by the Constitution to the States should be impaired..." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/2qglzy
"Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existance." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/y3ne4n
So whereas the 1st A. prohibits certain powers to the federal government altogether, John Bingham had clarified that only the privileges and immunities contained in the BoR were applied to the states, not the 1st A.'s prohibition on certain federal powers. In fact, Justice Reed noted that judges are to balance 10th A. protected state powers with 14 A. protected personal federal rights.
"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." --Justice Reed, Jones v. City of Opelika, 1942. http://tinyurl.com/yvtqoy
And the reason that the USSC has misrepresented Bingham's clarification of the limits of the 14th A. is because we've got corrupt, special-interest justices who shamelessly rewrite constitutional history to justify their PC perversions of that document. For example, consider the following twisted interpretation of the relationship between the 1st and 14th Amendments by Justice Owen Roberts.
"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect." --Mr. Justice Roberts, Cantwell v. State of Connecticut 1940. http://tinyurl.com/38a87c
So does a corrupt, Constitution-ignoring, pro-big federal government USSC help to explain ongoing social strife with respect to PC interpretations of our basic constitutional freedoms and weakened state sovereignty? I certainly think so.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
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The SCOTUS is silent on the kenyan & has therefore defaulted on a Constnl Question & has therefore committed a fraud upon We the Ppl in violation of their Oath of Office which is high treason. We have no executive office, it's all CFR & dual isreali's infected & We are being sold out by CONgress
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