by Joshua L. Rogers, for the Hattiesburg American
According to the United States Supreme Court, the Constitution says we have a fundamental right to use contraceptives (it doesn’t), that women have a fundamental right to abort their child (it doesn’t say that either), and that we all have a fundamental right to parent our kids as we see fit (nope, not in there).
I admit to being someone who appreciates having the right to parent my child as I see fit, but I am uncomfortable with nine philosopher kings in Washington telling me that is my right.
The Constitution is full of sweeping rights for Americans, but on some issues, it is entirely silent. On those issues, the 50 states have the authority to make their own rules.
That doesn’t mean that the Constitution can’t change; it can be amended by the people, but it’s a tedious process that requires overwhelming popular consent.
When amendments fail, as they almost always do, the issue stays under the authority of the states.
There is, however, a cheap way to amend the Constitution and seize power from the states. Think of it as a Supreme Court Easy Pass, where the court just declares new constitutional rights in an opinion handed down like an edict.
For example, with the Easy Pass, the court can dream up new provisions of the Constitution that are more politically conservative (like marriage being only between a man and woman) or create rights that are more politically liberal (like the right to have a gay marriage).
Either way, in deciding an issue that’s not addressed in the Constitution (who can marry), nine aristocrats end up deciding an issue that should either be dealt with by an amendment or left in the hands of the 50 states.
Over the years, too many of our Supreme Court justices have taken it upon themselves to use the Easy Pass and decree certain rights to us that aren’t actually in the Constitution.
That is why, as our president nominates the replacement for retiring Supreme Court Justice David Souter, his criteria should require a person who will simply interpret the Constitution as it is written not as the judge wishes it had been written.
Where the Constitution is silent, the states can govern themselves.
Where the Constitution needs to be changed, it should be amended through the process provided in the Constitution, not through a judicial edict.
Joshua L. Rogers is an attorney in Washington, D.C.
The views in this article represent those of the author alone, and do not, in any way, reflect the views of the author’s employer.
The Supreme Court doesn’t say a woman has a “fundamental right to abort her child.” As you well know, it says the government does not have the right to conduct a search of the inside of a woman’s body. One consequence of this is that she can manage the inside of her own body without the government’s interference. I think most people would agree that we don’t want to make the inside of people’s bodies government property. It’s always surprised me that people who say they want to limit the power of the government, also want to give it the power to search the inside of your body without consent or probable cause.
The problem I have with this is that you’re ignoring the fact that judicial review does indeed offer them the ability and power to interpret the constitution. Also, please remember that in some cases things that are obvious in the constitution but not covered directly (IE we are all equal under the law) had to be dealt with such as Brown v. Board of Education where the supreme court reversed it’s original ruling on the separate but equal clause. While it might have been possible to get an amendment (which is technically unnecessary) the southern states would have blocked it each time.
Your method makes it so that the supreme court is essentially unable to perform any sort of judicial review on the constitution. Yes, their opinions are human but how many politicians will vote against equal rights or fundamental necessities for a democracy because they think it will score them votes.
Also you’re forgetting the fact that the bill of rights also has an amendment that says that the laws listed do not necessarily preclude others, IE that I have the right to juggle in my home on Thursdays. The contraceptive example you gave could easily be seen as an extension of the unreasonable search and seizure amendment where the government does not have the right to dictate what can or cannot occur between consenting adults in the privacy of their home.
I know this is the Tenth Amendment Center, but what about the Ninth Amendment, which indicates that we have a number of rights which are not specifically enumerated in the Constitution, yet still exist. I seem to recall that contraceptives, abortion, and parenting are not specifically rights the court says we have, but rather that we have a right to privacy (as implied by many other parts of the Constitution, but especially the Fourth Amendment) which says that the government should not be controlling your private life.
Additionally, on the issue of gay marriage there, I’d like to suggest that on civil rights issues (which this fits the form of) the courts have always led the way. If we left everything to the will of the majority, where would we be? Like Virginia v. Loving. Last I checked, interracial marriage didn’t get majority approval in the US until 1997. The Supreme Court is there to uphold the Constitution, but also to specifically defend the rights of the minority. The Court is the only body not beholden to the will of the majority, and for people in the minority, it’s important to have that.
So while I think that marriage is completely a state issue, and the federal government should stay the hell out of it, that includes the repeal of the Defense of Marriage Act, which says that some of the marriages now granted by half a dozen states are not valid.
Now that I’ve diverged significantly from where I’ve started, I guess the thing is that the Supreme Court is there to follow a reading of the Constitution, and to uphold wherever possible the existing caselaw (as issued by previous Supreme Courts), and overturning these things only if they disagree with a current reading of the Constitution. I, for one, can’t say I’m unhappy with the Court finding that I have an implied right to privacy.
Some thoughtful comments here – what’s important to note, though, is that the constitution applies to the federal government and outlines what they can and cannot do. It is not a grant of rights or privileges, it’s a set of limits on government to prevent it from restricting rights.
While many things are clearly not listed as rights in the constitution – at the same time the federal government is not authorized by the constitution to interfere in those activities either.
You are wrong. Try not to make things up when you are publishing an article for the public to read. Just a suggestion.
It put a smile on my face this morning to read that so many state governments are beginning to stand up for their rights. I’m just disappointed that it took almost a century for them to wake up and smell the manure.
Much ado has been made about the 16th amendment establishing the income tax, but the 17th amendment, ratified just two months after the 16th, has had a devastating impact on states rights as prescribed by the tenth amendment. Prior to ratification of the 17th amendment, state governments appointed Senators to represent states’ interests in Congress. Now that we elect Senators by direct vote, state governments have no representation in D.C.. The Senate has become a carbon copy of the House of Representatives, thereby nullifying the original intent of the founders. But at least it was done the right way – by amendment – and not decreed by some black-robed socialist.
Over the years I have grown increasingly concerned about the federal government usurping powers from the states. Usually this is in the form of a bribe or blackmail. If a state wants money from the feds, it has to do what the feds tell them to do or they don’t get the handout, or they are threatened by lawsuits if they don’t comply. and we know who has the bigger bankroll.
The key to recovering what’s left of the United States is to mount Constitutional challenges at every turn. But this is costly, and very few attorneys are qualified to argue before the Supreme Court. So what can the ordinary citizen do? The next time your Senator or Congressman votes or intends to vote on some outrageous piece of legislation, contact his/her office and ask them to explain what Constitutional authority the federal government has to enact such laws. Be prepared for a lot of hemming and hawing. If enough constituents start to ask the tough questions enough times, some of these dirtbags might start to get a clue.
If you want to get serious about reading and understanding the U.S. Constitution, the best online source is http://www.consource.org .
It’s an interesting little conundrum. The 9th Amendment says that citizens have other rights not enumerated in the Constitution, and other clauses give the Supreme Court the power to review legislation that might violate some of those unenumerated rights.
At the same time, the 10th Amendment says that the States have other powers not enumerated in the Constitution, and again, other clauses give the Supreme Court the right to review various legislation that might contradict that.
But then along comes the 14th Amendment, which says that the states can’t infringe on the rights of the people, enumerated or otherwise (observe that it includes the 9th Amendment in its umbrella).
The only consistent conclusion is that the Constitution gives the Supreme Court the right to restrict the *powers* of the states to infringe *rights* that the people may have, but which are not enumerated.
Note, however, that we’re talking about *rights* here. Natural rights. Freedoms consistent with the rights of others.
Any powers to restrict rights that the states might have had due to the 10th are curtailed by the 14th, which supersedes any conflicting previous Constitutional clauses. This is absolutely necessary in order for freedoms such as the freedom from slavery to be exercised.
One process by which the federal judiciary usurps Reserved State’s Rights is by the doctrine of “incorporation”, which states that the 1st eight amemdments of the Bills of Rights, which by their express terms bind only Congress and the Federal government, are made applicable to the States through the 14th Amendment due process and equal protection clauses.
The original intent of the 14th Amendment was to extend equal protection to former slaves and to prevent their being returned to a condition of involuntary servitude without due process of law. By ignoring the intended scope of the 14th Amendment and interpretting it to include the substantive provisions of the Bill of Rights, the courts can review the laws and decisions of the states touching quesitons of speech, press, religion, search and seizure, etc.
This process effectively “federalizes” local issues of law and morals, depriving parents and communities the right to decide for themselves basic questions like pornography, adult book/video stores, display of manger scenes at Christmas, school prayer, teaching Intelligent Design along side Evolution, and even the suspension and corporeal punishment (spanking) of children by school officials!
To remedy this, we need a Constitutional Amendment making “original intent” the mandatory interpretative principle of federal law, and expressly revoking the doctrine of incorporation. This would also correct federal usurpation under the Commerce clause, which by its terms affords congress power to regulate interstate commerence on terms equal to foreign commerce, so that what it cannot compell a foreign county to do, it cannot compell the several states to do under this provision.
Of course, the courts can pevert any provision of law they care (which is why this site exists in the first place), so that the only real solution is the moral resolve to secede from the Union and to defend state’s rights by resort to arms if need require (hopefully never).
Ray and PHR – great comments here. There’s a lot to consider, especially when thinking about not only the 10th, but also the 9th and 14th amendments.
If you’re interested in some long, academic reading on the subject, Constitutional expert, Professor Kurt Lash has an amazing essay closely related to the subject:
The Inescapable Federalism of the 9th Amendment
Ummm. No. The *only* Amendment in the Bill of Rights that mentions Congress making no law is the 1st Amendment.
All the others speak of the rights of the *people*, which include the citizens of each of the states, by definition.
The 10th Amendment only speaks of powers “[not] prohibited by [the Constitution] to the States”.
The power to violate the rights in Amendments 2-9 *is* prohibited by the Constitution to the States. The fact that they got away with it before the 14th Amendment’s later interpretations says nothing except that they were wrong before.
Surely you wouldn’t agree that states (let’s say… all of them) have the right to disarm their populace, right? What would the point of that right be if each state could individually remove it?
If you wish to argue that the 1st Amendment isn’t extended to the states by the 14th, feel free, though I think it would be hypocritical to do so. It doesn’t explicitly speak of “rights”, except in the case of the right to peaceably assemble, merely freedoms.
The states *never* had the power to usurp the rights recognized by the 2nd-9th Amendments. In fact, by the entire — one might arguably even say *sole* — original intent of the founding of this country, and of the Framers of the Constitution, they aren’t “rights” if governments can legitimately restrict them, they are only privileges.
“Rights” are inalienable and fundamental to a person’s existence as a human being. The 14th doesn’t extend “rights” to the citizens of the states. The people already have those. That interpretation would be counter to *all* of the original intent of the Constitution, which is that people have rights regardless of what governments say about it. The 14th actually extends equal protection of *privileges and immunities* enjoyed by US citizens.
If the framers of that Amendment intended for it to only apply to the supposed privilege of freedom from slavery, it would have been trivial for them to actually *say* that.
However, your assertion about that is incorrect as well. It is true that the 14th Amendment was largely motivated by slavery. However, the concern that motivated it was that the states would apply so many non-slavery-related restrictions on freed slaves as to make their lives effectively unfree, regardless of their technical state. It was *entirely* intended to be extensive in scope.
In any event, the Supreme Court *does* consider original intent, and largely feels bound by it. *Your* opinion of what the original intent of the Constitution was, however, is largely irrelevant. It is the job of the Supreme Court to *decide* what the original intent was, from incomplete records and surrounding historical evidence.
In summary, in order to claim that states have the (legitimate) power to restrict the people’s rights as they wish, you have to go against the original intent of everything the Constitution stands for. If you insist on original intent, this is completely inconsistent.
I think you all are reading the 9th Amendment incorrectly. What it says as that certain rights are retained by the people. Therefore, the Constitution shall not be construed in a manner that disparages those rights. For example, the right to free speech should not be construed in such a way as to deny the right to freedom of association.
As to the comments that teh federal government has no authority via the SCt to determine what is Constitutional in regards to issues such as the 14th Amendment, the Amendments are the Supreme Law of the Land. Therefore, they are the domain of the federal government.
The conundrum trying to be presented is what happens when the US Sct construes the Constitution in a manner that is not Constitutional. That’s where the nullification issue arises.
It’s not a conundrum at all. There has to be *some* final arbiter of what the Constitution does and does not mean and of what is and is not a “right” in the absence of an explicit mention in the document itself. Otherwise you can’t live by the thing at all. The Constitution declares the Supreme Court (if not explicitly, at least effectively) to be this final arbiter.
But it recognizes that this can lead to incorrect results, and provides a lovely way to fix any problems that occur. It’s called an amendment. If the people really disagree with the Supreme Court as to what the Constitution means, they have the right and ability to change it.
What, exactly, should be done if the Supreme Court goes against the clear and simple literal meaning of some part of the (as amended) Constitution? Now *that* is a conundrum. Luckily it’s only very rarely happened in the history of the Union. The whole “eminent domain/asset forfeiture” thing might be the only example I can think of in the last 100 years. And no, I don’t know what to do about that. I mean, what are we going to do, pass an amendment that says, “no really, when we wrote the 4th and 5th Amendments we meant you can’t take people’s stuff without due process”?
“Nullification”, in my opinion, is a fine thing when it comes to states providing *extra* protection of the rights of its citizens, and when it comes to refusing to implement such things as unfunded mandates.
However, it doesn’t apply to restricting the rights of its citizens, which it cannot do legitimately for any reason. If the state thinks that something is not a “right”, well, that’s fine and good, but it isn’t the final arbiter of that. The Supreme Court is (in this country, anyway).
Simplistic calls for an Amendment to make “original intent” binding on the Supreme Court are foolish on the face of them. Who gets to decide what the original intent was? Contrary to what some people believe, it’s really not at all obvious.
Indeed, I doubt there has *ever* been a complete consensus on the intent of any amendment or other clause of the Constitution at the time of its adoption. Practically every word of the thing was a long drawn out compromise of different parties arguing with different intents.
The best you can say is that those who finally voted for it (including the legislatures of all the ratifying states) were satisfied that it met *their* intent. To get a valid estimate of the “original intent”, therefore, you have to interpret it as an amalgam of all these compromising positions.
Good luck. It’s a very valid thing to try to do. Actually, I think 99% of the time the Supreme Court does a pretty good job of that thankless task. Just never assume that “whatever I agree with” is a good summary of the intent.
The “states” are the “people” for most purposes under the 9th & 10th amendments. We act through the state. The Bill of Rights was intended only to limit the power of the federal government, not the states, or people. Under the U.S. Constitution, the states were perfectly competent to be “Catholic” or “Protestant” if they wanted to. Only the Federal government was prohibted to have an established religion. Granted, most states adopted a policy of toleration, but there was no requirement they do so. Certainly, there is nothing in the constitution to require that the states teach evolution or abstain from acknowldgment of God or Christ if they so choose. The 14th Amendment has been perverted and become the device by which everything is “federalized” – and we are becoming a very devided and contentious nation because of it. Why should the morals (better, lack of morals) of nine non-elected judges decide what local parents and school districts teach regarding the origin of life? If Texas feels homosexual sodomy is socially deleterious, then it is the of Texas and its people to stigmatize and punish sodomy. We need an new amemdment making original intent the only permissible interpretative method, and specifically repudiating the doctrine of incorporation and the expansive reading of the commerce clause.
I don’t think you should jump so fast to conclude that the US Sct can do anything it wants, and the remedy is to Amend the Constitution. You MUST remember, the rights are there to prevent usurpation by a democratic majority. How can you amend, without a majority, a situation where a reserved right is trampled?
“There has to be *some* final arbiter of what the Constitution does and does not mean and of what is and is not a “right†in the absence of an explicit mention in the document itself. Otherwise you can’t live by the thing at all. The Constitution declares the Supreme Court (if not explicitly, at least effectively) to be this final arbiter.”
Sorry, Ray, but you’re wrong. The bill of rights were always held to only restrain the feds, not the states. That was the origianl understanding when they were ratified. Any re-writing of the Constitution beyond that understanding is judicial activism and bypasses Art V and defeats the prupose of a written Constitution.
So you feel that there has to be a final arbiter (which I disagree with), but why should the feds get that role? Wouldn’t that be unfair to give one party to a contract the exclusive right to interpret it as they see fit? Where is the role for the states? Giving the feds the final say in the matter results in an unlimited federal government which is now what we live under.
Mr. Gathercole,
You’re oversimplfying the abortion issue. Surely, you don’t endorse infantcide? But when do you feel a child becomes a living human being with their own God given rights? Once they leave the birth canal? Do you feel an abortion at 9 months is justified?
Perhaps this book could help shed some light on the subject.
http://www.amazon.com/Challenge-Liberty-Coming-Grips-Abortion/dp/B000BH67F4
When it comes to abortion, the Constitution has nothing to say on the issue. It wasn’t even discussed at the time. Trying to make it a federal issue by having the Court become policy makers violates the concept of a limited government.
It is not true that the rights enumerated in the Bill of Rights are to protect “descrete and insular minorities” or democratic majorities, as you put it. That is nonsense we have been taught by judical activists that wanted to re-write the constitution to suite their particular agenda. By your idea, one atheist can prevent a whole state or community from display of the 10 Commandments if he sued and a court agreed. Why should one man be able to cripple an entire state. This is a democracy! The majority should rule, not an isolated individual.
Well, you’re wrong. This is *not* a democracy. It’s a republic. Learn the difference.
The majority trampling on the rights of minorities is, indeed, evil.
If a minority actually trampled on a right of the majority, that too, would be evil. I’m not going to argue that. I might argue about any particular case, not not the general principle.
The entire history of the United States is one of declaring that people, all people and each individual person, are created equal and have inalienable rights. Look up what “inalienable” means. Everything in the Constitution has to be read in light of that *overriding* intent.
It does not mean “the majority can take them away whenever it feels like it”. Rights are rights. If they can be legitimately infringed, they are just privileges.
If you read a clause in the Constitution as claiming that the majority can take away rights from some minority, then *you* are the one violating original intent.
If you want to claim that the right to bear arms is, instead, merely a privilege that the state can take away, or assign solely to the agents of the state, go right ahead. There are a number of armed people that might take you to task for it, though. Thank Eris.
If this is a democracy, then there was never a need for the Bill of Rights. Obviously, the Bill of Rights was to limit the power of a democracy.
To follow up, most of you fail to see the difficulty in interpretation. It is not just “this way” or “that way.”
If the federal government exceeds its Constitutional authority, and the Supreme Court decrees that it did not, what do we have?
What if the Supreme Court says it’s within the powers of the Congress to pass a law that says “No citizen shall have the right to publicly state the government is corrupt?” While this is a clear violation of the Constitution, does anyone contend that the Supreme Court has the power to legitimize it by a simple decree? I would hope not.
So, what are the states to do? It seems that, at least, the states have the inherent authority to consider it a nullity, since it clearly exceeds the powers of the federal government granted by the Constitution.
So, the example would support the proponents of nullification. Now, let’s put the shoe on the other foot.
What if a state enacts a state law that says, “No citizen of this state shall criticize the governor?” The federal government maintains that the state is violating the Constitution, and rightfully so. The Supreme Court decrees that the state law is Unconstitutional.
Therefore, we are now in a position where the federal government would be rightfully entitled to decree the state’s law a nullity.
So, on the one hand, we have situations where certain acts by the federal government are clear excesses and should be nullities. And on the other hand, we have situations where certain acts by the state governments are clear excesses and should be nullities.
That means that sometimes, the federal government should be empowered to nullify the actions of a state, and vice versa, sometimes, the state should be able to nullify a clear abuse of the federal government.
So, the issue is not so simply whether a right of nullification exists, but when an exercise of nullification is legitimate. To answer that question is the meat of the problem.
You’re wrong in this. When the states created the federal government they did not give it power to decide issues regarding the wisdom or propriety of state law for matters of the sort you describe. There is no protection in the federal constitution from the state passing a law silencing certain forms of speech. The federal government is not the police to guard state citizen’s rights. The 14th amendment created that power in a limited sense, to protect the former slave population. But even here, the purpose of the equal protection clause was that police and public prosecutors enforce the law without regard to race. Not to guarentee that an atheist doesn’t have to hear the word “God” recited in the pledge of allegiance. That sort of “protection” was not why the 14th Amemdment was enacted, and it should not be expanded by judicial activism beyond its original intent. Same with the Bill of Rights. Their purpose is to protect the states and people against the Federal government and the provisions of the Bills of Rights should not be “incorporated” into the 14th and made applicable to the states. The Original Intent is the ONLY intent that should be enforced or valid as a matter of law. Otherwise, we have no written constitution, but one that can be changed unilaterally by activist judges to the prejudice of state’s rights and the morals and sensabilities of the people.
Wake up America! Remember Germany! They failed to wake up.
When the States created the federal government, it was to serve them as thier agent in certain limited areas, with certain ennumerated powers. The States are NOT political subdivisions of the federal government (though you would never know this to watch Washington or the U.S. Supreme Court!). The federal government was not created to police the states in the wisdom or equity of their laws. We the electorate do that! The Bill of Rights binds only the federal government (except maybe the 2nd Amendment, which guarantees the people the right to keep and bear arms against both the feds and state). The 14th Amendment did confer on the federal government certain powers over the states (equal protection/due process). But even here, the intent was that the local sheriff and public prosecutor enforce the law equally, without regard to race. The 14th was NOT a gaurantee that women have the same rights as men, or homosexuals have the right to marry, or that atheists don’t have to hear the word “God” in reciting the pledge. The federal judiciary has expanded the 14th to include all these, but there is no basis in law for these intrusions into reserved states’ rights.
We need an amendment making original intent the ONLY permissible interpretative principle of federal law, and specifically repudiating the doctrine of incorporation and the expansive interpretation of the commerce clause (which can be no greater as applied to the state than it can to forgein nations and indian tribes).
Certainly you have to agree that the 6th Amendment *at least* has to apply to the states. The plain language of it is utter nonsense if it only applies to the Federal Government.
And that plain language is in exactly the same phraseology as all the other Amendments (except, perhaps the 1st).
It’s vital to remember that while *some* of the Founders were strict Federalists, others were not. The debate was quite lively. You don’t get to pick and choose which interpretation *you* like among the people writing and ratifying the Constitution. The Constitution is clearly a *compromise* between those 2 positions. Neither position can be considered the sole “original intent” of the document.
If the 14th Amendment was meant only to apply equal protection of the law on the basis of race, it could have been worded that way (like several other Amendments were). It wasn’t. At the time of ratification, the state legislatures debating it did not have the advantages that we do today of instant access to records, writings, television broadcasts, etc.
They ratified the plain meaning of *words* of the 14th Amendment (as would have been interpreted at that time in history). *That* is the only “original intent” that matters when it comes to “states rights”. That plain meaning is what the states agreed to be bound by.
(Aside: “States” do not have “rights”. Only people have “rights”. States have “powers”… this too, is clearly defined in the Constitution).
And the 14th Amendment, while not pulling in as many things as some might say, clearly *at least* guarantees that every citizen of the US and every State *period* must be accorded equal protection of the law, on whatever basis whatsoever, race or otherwise.
E.g. A State might declare sodomy illegal, but assuming that’s not a violation of the people’s rights (reserved in the 9th Amendment), it has to be illegal for *everyone*, not just people you don’t like.
The language of Amendment 14, Section 1 is *exceedingly* plain, simple, clear, and obvious. On some level, it doesn’t really *matter” what the intent of the small number of actual writers of the text was when something is that clear, because the legislatures ratifying the Amendment chose to accept it as worded.
It’s quite telling that you seem to accept that the 2nd Amendment is applicable against the states, when in fact is is one of the few of the Bill of Rights that the Supreme Court has *not yet incorporated* against the states.
It’s hypocritical to insist that the Supreme Court’s incorporated Amendments are wrong, but that the ones you like should be incorporated. Either it’s proper to incorporate them or not. The phrasing of the 2nd Amendment is not significantly different from that of the other Amendments, and certainly the *intent* wasn’t different in this particular regard.
I totally agree that the Federal Government has usurped many of the retained *powers* of the states in recent years, and that this is wrong.
Those powers do not include restricting the rights of individual people. “Rights” are those things that cannot be legitimately restricted, by definition. “Privileges” are everything else. The States have *always* been prohibited from restricting rights, even before the Amendments. This is true by Natural Law (not to mention logic), and is the *clear* intent of almost all the Founders, even without looking at the Constitution at all.
All we can legitimately argue about is which things are “rights”, and which things are “privileges”. And the States, having *ratified* the Constitution and all its Amendments, have agreed to recognized that quite a few things are explicitly “rights”. We might want to discuss which other rights, retained by the people in Amendment 9, might *also* be untouchable by the states, but the ones they agreed to explicitly certainly are.
And you’ll note, I hope, that the 10th Amendment *actually* says: “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.”
I.e. 1) the States are, in fact, prohibited from doing some things by the Constitution (i.e. they are not 100% sovereign), and 2) “the people” is not the same thing as “the States”.
Anywhere you see the phrase “the people” in the Constitution, it means every single person in the United States and/or any of the several States.
Not correct. It is often said the fed gov’t was created as an agent of the states. This is not exactly correct, although it sounds appealing. The federal government was created by the states, collectively, who all agreed that, in certain areas, federal laws preempt state laws. Why do you think the states said that all laws created pursuant to the Constitution would be the supreme law of the land? Supreme hardly connotes “inferior” or some lesser form of agency relationship. I am all for states’ rights. I even advocate very actively for them. However, you need to be clear that the federal government reigns supreme in some areas, as set forth in the Constitution, and the states reign superior in those areas reserved to them. Until that can be understood, it will remain difficult to intelligibly debate how to fix the problems we have today.
BTW: My “not correct” was referencing Patrick’s take.
Patrick says, “The 14th was NOT a guarantee that women have the same rights as men, etc…”
Read the 14th: No state shall make laws that deny or abridge the privileges of citizens of the United States.
The Bill of Rights contains many such privileges. The 1st Amend. states Congress shall make no laws limiting freedom of speech. This obviously implies that U.S. citizens shall enjoy a privilege of free speech. Thus, the 14th prohibits states from abridging that privilege.
I can’t believe, as a strong states’ rights supporter, that I feel compelled to point out issues with the states’ rights cause. However, if we don’t candidly look at these issues and openly debate how they are to mesh with a system of greater states’ rights, then we are going into the cause wearing partial blinders.
I choose to fight the cause with a fair and open debate. The feds still suck, but I will acknowledge there are Constitutional limitations on the conduct of states.
Look at it this way…. If you were to write one or more amendments to CLARIFY, and not change, the states’ rights paradigm, how would your proposed language look? That’s the challenge.
AMENDMENT TO THE UNITED STATES CONSITITUTION
“The Constitution and laws of the United States shall be interpreted and enforced according to their original intent at the time of enactment, and not otherwise. The 14th Amendment shall not be construed to incorporate or otherwise make applicable to the States limitations contained in the Bill of Rights. The power conferred upon Congress by Article I, Section 8 to regulate commerce among the several States is limited in terms to its power to regulate commerce with foreign nations. What Congress cannot legislate as to foreign nations, it may not legislate as to the States.”
An amendment substantially in this form would give life back to the 9th & 10th amendments. First, it would require that they be interpretted and enforced as intended when enacted, whereas now judical usurpation has made them dead letter. Second, it would make original intent the only enforceable interpretative principle, ending judical activism. Third, the doctrine of incorporation would be specifically repudiated, so that the “privacy” the court finds under the 4th Amendment cannot be applied against the states to conjure up a right of elective abortion, or other usurpations upon the right of the people and states to decide basic questions of morals for themselves. Fourth, the commerce clause is now interrpretted to confer practically unlimited power upon Congress. However, by its express terms the power conferred under the Constittuion as to the states is not greater than as to foreign governments. environmental regluation, labor legislation, gun control, drug laws, and a million other intrusions micromanaging state affairs would thus be eliminated and the power returned to the people and the states.
Read these to clarify the 14th (which was illegally ratified) and the bill of rights. It’s bad strategy & unconstitutional for libertarians to empower federal courts to have such wide-ranging jurisdiction.
http://www.stephankinsella.com/texts/berger_fourteenth_am_bill.pdf
http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&layout=html
These are excellent resources (the books cited above) and show conclusively that the turmoil and unrest that marks our nation through the federalization of local issues of law and morals is the result of the federal judiciary’s playing fast and loose with the 14th Amendment.
ONLY by passing an amendment like that proposed above, enshrining “original intent” as the only enforcible principle of constitutional law, and specifically repudiating the doctrine of incorporation and the expansive interpretation of the commmerce and general welfare clauses can the 9th & 10th Amendments be revived.
The 10th Amendment Center needs to take the lead on proposing this type of amendment to the States, and take advantage of the movement afoot to reassert their sovereignty. All else is just wishful thinking….
Patrick Henry Lives, while I appreciate your passion and energy on the topic, I don’t agree with your suggestion of a new amendment for two reasons: (1) it wouldn’t pass and (2) it accepts the notion of judicial supremacy that the Court can dictate to the states and the other federal branches on what the Constitution means and there is no recourse.
Re: (2) – this is just not true. Both the executive (not likely) and the legislative (unlikely in the Senate at this point but definitely obtainable in the House with grassroots effort) can stand up for the Constitution and use the power of their office to restore limited government. Also (here’s where the 10th Amendment Center comes into play) the States are the ones most likely able to reassert their true constitutional role and push the feds back. By declaring their sovereignty and nullifying unconstitutional laws, the feds would have to start actually obeying their oath of office and abiding by the Constitution and not what political appointees say the Constitution means.
I think you need to add something to that proposed amendment. One of the powers the federal government has to regulate trade with foreign countries is to prohibit it entirely (c.f. Cuba).
Unless you want your little state to become an island, you may need some additional protection. I’m not sure exactly what form of protection you might think that that could take without making a complete mockery of the Constitution, but good luck.
I don’t know where you get the idea that governments may legitimately violate human rights with impunity, but the rest of the country isn’t going to stand for it.
Though, I wouldn’t worry, the chance of it being adopted is exactly zero. Practically no one in the entire country agrees with anything nearly that radical. Like it or not, a vast majority *wants* the Bill of Rights to apply to the States. Where’s that “will of the majority” now?
Ah, but Ray, we live in a constitutional republic and not a lawless democracy. If the people want the BOR to apply to the states, there’s the Art. V process to amend the Constitution. The majority of people also want nationalized healthcare … doesn’t mean it’s right.
I also don’t agree with you that people want some uniform “libertarian” BOR applied to all the states. You’re assuming that everyone thinks like you when, in reality, they don’t. Liberal states want gun control and abortion while conservative states don’t. Why force them to do otherwise? The whole point of federalism is to leave these contentious issues to the states where they belong. You’ll never get a nation of 300 million plus to agree on these things.
Also, on purely strategic grounds, aren’t you concerned with giving a bigger government more power over smaller governments to allegedly protect individual liberties? Would you support empowering the UN to strike down state laws that they deem violate fundamtal rights? What happens when they start viewing “fundamental rights” differently than you?
Regarding the assertion that Congress can target a single state and prohibit all commerce into or out of it, since that would be tantamount to an act of war, this sort of thing is unlikely. Beside, i do beleive that the Constitution requires that any regulation of commerce be uniform throughout the several states, but I need to check on that.
Regarding the ability of the States to nullify unconstitutional federal laws, resolutions accomplish little or nothing. They are merely a verbal protest, but lack all force of law. Since the feds claim supremacy over state law, the only way a state can nullify federal intrusion into reserved states’ rights is by being willing to take up arms if push comes to shove. I think an amendment setting the whole thing straight would be preferable. If the sentiment that is causing the states to pass 10th Amendment resolution continues to build, I think passage of such an amendment is not impossible. But then, who can say? Ron Paul’s bill to audit the Fed has 130 cosponser, something impossible only a few months ago.
You still need to tweak your Amendment a bit, or it’s not going to protect what you think it will.
Already, the feds don’t say “you must make the maximum speed limit 55″. They say “do it, or you won’t get this 10 Billion Dollars in federal highway funds (that we took from your citizens in the first place)”. You want states “rights”? Let’s figure out a way to deal with *that* problem, first.
Perhaps something like “No Congressional appropriation of money to be spent within the States, except in cases of natural disaster, shall be apportioned other than evenly to every State, based on the taxes collected from each State.”? That would get rid of pork barrel spending too… bonus!
You’re not going to get a lot of sympathy for violating what the vast majority of the country considers to be fundamental human rights. That’s pretty much a non-starter.
Indeed, I’ll give you 20:1 odds that if you polled people in your *very own state* and asked a very straightforward question: “Should the U.S. Constitution’s Bill of Rights apply to people in ” that a majority would say “yes”. I’d actually be quite shocked if anything less than 75% said “yes”. Chew on that for a while and honestly ask yourself if you really think I’m wrong.
That doesn’t mean any random right that someone might think up. If you were to ask “Is access to universal free healthcare a fundamental human right?” I suspect you’d get a widely differing opinion across various states and regions.
But every state that ratified the Bill Of Rights, regardless of whether they thought they might be bound by them at the time, at least accepted that those *particular* things *were* fundamental human rights. Whether the Constitution itself forces them to or not, they have a fundamental responsibility as a legitimate government of the people to at least protect those things that they themselves have agreed are human rights.
As for the U.N., I have other problems with them. The main one is that the vast majority of the states represented therein (and, more importantly, the people in those states) don’t have the kind of respect for human rights that the United States does. Additionally, the structure of the U.N. is far too much like a “democracy of wolves”. There are far too few checks and balances on how it operates. Indeed, it wasn’t intended to be a “nation” at all, and doesn’t work that way.
If there were a world government that comprised countries that were strong supporters of human liberty and rights, that was organized along the lines of the U.S. Constitution with strong checks and balances and the ability to amend the supreme law with a sufficiently large supermajority, why then, yes, I’d be happy to give them that *particular* power (to preserve fundamental rights as enshrined in the Constitution).
Personally, to gain my support, I’d insist that one of those checks and balances was something along the lines of: “Rights, as meant in this Constitution, are to be construed solely as liberties to act or think and freedoms from interference in the individual pursuit of happiness. Nothing in this Constitution, nor any future Amendment shall be construed as implying that any citizen must be provided with any property or service by the state”. Now there’s a Constitutional Amendment I could get behind. I doubt I’d get a sufficient majority to agree with me, but that’s the breaks.
Oh, and BTW, the Supreme Court, which is assigned by the Constitution the power and responsibility to interpret the Constitution, has ruled that the 14th Amendment *was* a proper Article V process to apply the Bill of Rights to the States (or at least a significant subset of them).
Your opinion about whether that’s true holds really very little weight.
Might it have been more clear if the 14th Amendment had said “all the privileges and immunities of citizens of the United States, including the rights accorded to U.S. citizens by the Constitution and its Amendments”? Well, perhaps, but that sounds terribly redundant to me.
Also, I’m curious… what do you think of Article 6, which 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.”.
It seems pretty clear.
And yes, the commerce regulations have to be uniform across states, but you’re not accounting for the deviousness of the federal (or, indeed, state) government. Here’s an example:
“No state that fails to protect the rights enumerated in the Constitution, nor adjudicated by the Supreme Court, shall import any item from another state.”
Kind of similar to how the feds prohibit trade with governments declared to be supporters of terrorism.
The amendment I wrote up was in response to a request asking how such an amemdnment might be worded in order to put life back into the dead letter of the 9th & 10th Amendments, and to restore the 14th and other provisions of the Constitution to their “original intent.” I hold no delusions that it will actually be taken up and adopted. I floated it here only as a way of showing the sort of thing that will need to happen if we are to return the power back to the people and states.
My own feeling is that we are more likely to end up living in a socialist “peoples’ paradise” because we lack the moral courage and resolve to do anything to prevent it, or civil war will have to break out, or nearly break out, before there is any significant change in D.C. and it abandons plans for a North American Union, etc.
Ray, you’re confusing two different things. The supremacy clause with judicial supremacy. There is a huge difference.
http://www.thenewamerican.com/usnews/constitution/794
Once you understand that, you’ll understand that just because 5 out of 4 political appointees agree on something, that doesn’t make it “constitutional” in the sense of how our founding document was ratified.
The illegal method employed to pass the 14th Amendment has been well documented by others much more knowledgeable than the two of us. Even a brief review of the history illustrates how much it violated the steps laid out in Art V.
http://www.mises.org/freemarket_detail.aspx?control=282&sortorder=authorlast
Judicial supremacy states that the federal judiciary is the ultimate interpretor of the Constitution. Supremacy clause says that the Federal constitution and decisional and statutory law passed pursuant thereto becomes the supreme law of the land. Big difference.
Although expressly permitted to regulate the court’s jurisdiction, presently, Congress only passes laws limiting judical review to things like highway construction to prevent them from getting tied up by environmental litigation, but has been unwilling to reign the courts in on issues of judge made constitutional law. Congress could make findings and declarations of fact to the intended operation of the 14th Amendment and then limit judical review to comport with those limits, but it is unwilling to do so, and it is unclear what the courts would do if it tried.
Meanwhile, the nation is being bankrupted by a federal government whose constitutional reach has been expanded beyond its ability to pay the tab. If we are to save the nation, we better find a way to reign congress and the courts in ASAP! Or, maybe, Washington will go broke and close shop. Wouldn’t America be a better place then?
Wait, PHL, just so I get this right, are you saying that the supreme court, when it rules on the constitution, is never wrong?
NO!!!! Just the opposite, in the case of the 14th Amendment it is nearly always WRONG. The Bill of Rights do not apply to the states through the 14th!!!! This is pure judicial usurpation!!! See the excellent book at this link for the history and truth of the 14th Amendment.
http://www.stephankinsella.com/texts/berger_fourteenth_am_bill.pdf
When we talk about judicial supremacy, we merely mean that some beleive that the court is the last voice (regardless whether its decisions are right or wrong). There is really no basis for this conclusion in the Constitution. Congress can exert itself if it will, but has never done so, even though the problem with activist judges was present even in Jefferson’s day. That is why some other device will have to be found if the 9th & 10th will ever be more than dead letter again.
I think perhaps you misunderstand how “Common Law” works, i.e. the legal tradition under which the Constitution was instituted and which is, in fact, specifically mentioned in the 7th Amendment as being the only valid legal system for (at least) civil cases, and by implication criminal cases as well.
In a Common Law system, the decision of a higher court *always* create binding precedent for all lower courts and interpret the law for them. The goal of this is to have a legal interpretation that is uniform (i.e. “common”) across the jurisdiction of the court system.
This is in contrast to “Civil Law”, in which precedent is not binding from court to court (only within 1 court). And, indeed, there isn’t really such a thing as binding precedent in Civil Law.
The reason that the Supreme Court can in effect declare a law unconstitutional is that its precedent is binding on all lower courts. Indeed, it doesn’t “throw out” laws (though this is a common idiom for it). It merely makes them unenforceable in the legal system. Many unconstitutional laws remain on the books in numerous states (impotent). The courts cannot make law, nor remove law. They can only refuse to enforce it.
If you want Civil Law in this country, you would need a very different Constitutional Amendment.
Another point about the 14th Amendment is that, regardless of what states might have improperly ratified it at the time it was proposed, by 2003 (indeed, mostly by 1900) every state in the Union at the time it was proposed had ratified it, even the ones that previously had rejected it.
Article V doesn’t lay out any time limit for ratification, so you have to accept that it has been properly ratified by 3/4 of the states, even if there were some improprieties at earlier dates.
And, in fact, there were no significant improprieties. The southern states had seceded. The U.S. was free to make any conditions it wanted on the readmission of those states to the Union, and they did i8n fact ratify it (and the 13th and 15th).
Interesting book, Patrick. I really thought that I had seen it all, but I admit I’m stunned to find my experience stretched.
I had not imagined possible that a serious scholarly book could be that axe-grinding and plainly racist.
I guess trolls are not as limited to the internet age as I had once thought.
I give Patrick Henry Lives tons of credit for knowing his stuff! PHL, you defintely have done the research on the subjects we’re talking about. You definitely have my respect.
Ray, on the other hand, your dig at the widely recognized and respected constitutional scholar Raoul Berger as a “racist troll” says far more about your rush to judgment than it does about that great man. Don’t be so quick to slander ideas to which you haven not been exposed before. The jurisprudence of the Constitution is a difficult subject with a wide range of dissenting opinions. It’s not as clear cut as you would like to make it appear. Trust me … as a bar certified lawyer with a JD plus a masters in law, if you think a legal argument is simple and straight-forward, it’s probably because you’re overlooking something.
Also, Ray, you’re confusing legal doctrines again. The comoon law principle of precedent “stare decisis” and our constitutional foundation doesn’t imbue judges with the policy-making powers they’ve grabbed for themselves. The Founders specifically refused to give judges a policy-making role (which was reserved to the legislature) so their liberal use of the 14th to create “penumbras” and other dubious legal doctrines are in direct defiance of our legal system. Basically, the other departments (& the states) are not required to comply with blantantly unconstituyional Supreme Court opinions.
Thanks, Patrick, for your kind words. I hold a JD and am a licensed attorney, but have not practiced for many years now. I don’t know much, but I know enough to see we big, big problems coming if we don’t find a way to cut back the scope of federal powers. I must say, I am greatly encouraged by the 10th Amendment Resolutions that are multiplying across the nation. However, unless there is some kind of Constitutional convention to float amendments to reign in the federal government the resolutions will accomplish little standing alone. Our only real hope in the end is the moral courage and resolution to secede from the Union. Radical as that seems, I find no other reasonable solution on the horizon.
Blessings,
Actually, mostly what sickens me about that book is the flavor infusing it that the racist politicians of the time should be given all the weight in the discussion, as opposed to, say, the ones that weren’t, which are dismissed as “latitudinarians”, simply because giving the other ones weight would weaken the argument the author was trying to make about states rights.
The “troll” part was more about the axe grinding, which he goes to great length to accuse Curtis of, when hypocritically it is entirely clear that he wrote this book and carefully chose his quotations with the intent of proving the widest possible interpretation of his pre-determined conclusion about the meaning of the 14th Amendment.
(Yes, I know, I’m batshit crazy for actually reading that entire book just to have an informed discussion on an obscure blog somewhere)
In any event, it does open my eyes considerably. We tend to imbue the framers of the Constitution with a mythic heroic aura of people trying birth a state in liberty. It’s clear from this book that most of them were bickering petty partisan politicians.
The conclusion it brings me to, personally, is that “original intent”, as meant by the people that are currently using it (as opposed to how I mean it), is far too dangerous a means to use for interpreting the Constitution. Well, besides that, it seems to be being used more or less as “reactionary conservatism”.
It’s far too easy to find your axe, and then grind it on the words of one or the other side of the debate over the meaning of a particular clause, while ignoring the other side, and indeed the plain and simple clear meaning of the words of the Constitution itself.
I restrict myself to honoring “original intent” only in that the words of the Constitution should be thought of as having their plain simple English meaning at the time of their adoption (as opposed to reinventing the meanings of the words to their modern linguistically drifted ones, as has been done with phrases like “well-regulated militia”). If the framers wanted it to mean something else, they should have chosen their words more carefully.
Surely, if there were a clause in the Constitution something like “the pursuit of being gay” rather than “happiness”, we can’t take our modern meaning of the word “gay” and apply it to only giving people the right to try to be homosexual (though I think people should be free to pursue that modern meaning if they want).
But I’m completely uninterested in going past that to some kind of bizarre argument about what kinds of things might have made people happy in the 18th century, and therefore what they “meant” by the “pursuit of happiness”. Or, indeed, what the racist politicians of the time might have thought of as the “proper place” of the negro, or of women.
If watching TV makes people happy today, and it doesn’t interfere with the rights of others to pursue happiness as they see fit, I’m perfectly ok with interpreting the Constitution as saying people shouldn’t be arbitrarily restricted from watching however much TV they want, even though TV didn’t exist at the time.