Jason, Thanks for your courtesy. BOR it is.
I would like to mention that to enforce the 10th we might want to repeal or laugh out of court, the false 17th, which removed the selection of U.S. Senators from their State's legislatures, and threw the election of Senators into the same pond of passions as the lower house.
If nothing else, this rotten act broke a major check & balance carefully written into the original Constitution.
Here's an entry from www.USchronology.com: Description

1/5/1788
Bright Alexander Hamilton, using the pen name “Publius,” publishes “Federalist #34,” paragraph two of which explains the importance of maintaining two independent legislatures:

It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy [sic]. (Emphasis in the original)
Postscript: This concept of bicameralism has been vitiated, demeaned and disparaged by the fraudulent 17th amendment.
(This is the first of 26 entries.) I searched on 17th amendment.

Excellent point Jason...

“Such a drastic change would have certainly been VERY clearly explained and much debate would have existed at the time about it.“

And lets not forget that many of the signers of the Constitution itself, were former State legislatures and State attorney Generals

Many had also partaken in their State constitutional conventions, and were responsible for the formation of their own State Constitutions, and some had even signed the Declaration of Independence.

So when these federal judges attack our republic, they have betrayed the people.

Jason Greene Says:
August 15th, 2009 at 7:31 pm "framers intended for the BOR to be enforcable upon the states. I would say that just because congress did such a thing does not mean that they have been granted the power to do so in the constitution–which is one of the primary reasons we are in this mess and this website exists!

He also repeatedly mentions Madison’s support for the BOH to be enforceable on the states and uses this to justify his position that the 14th does this."

What is "BOH"? I get BOR for Bill of Rights, but what's BOH? This is only one example.
On my keyboard H & R are not adjacent, so I can't think it's only a typo.

Good comment - Lockaby
“Perhaps I am missing something here, but it seems to me each amendment in the Bill of Rights defines its own application, at least to a point.”

If the state legislatures had this right to ratify “all, or any” of these ten proposed amendments, then certainly it would not follow, that the possible rejection of any one of these amendments would, then overpower, the usefulness, and the authority, of the others remaining.

And likewise it would seem to me that …

No general amendment can be prescribed to be to that very purpose of every other amendment, every amendment must be tuned to its own discourse and purpose, or all amendments of any other kind are irreverent, and they are then liberated from us, without decision.

No general amendment, nor this opinion, that there is one, can be Constitutionally used to subdue all other amendments, or all other Constitutions, at will.

“It is not the function of these federal courts, nor its federal legislative body, to alter that method by which this Constitution has affixed our amendments.”

The fractioning of this Constitution’s proper amendment procedures by this designing of a National amendment which is intentionally allowed to be so vague as to afford to any branch of this federal government, all rights, to those majority restraints constitutionally conceived firstly by the people, would be a tremendous assumption of right, for any, conceivable form of totalitarian action, against this Constitutional Republic, caused, by anyone who would use such an amendment in this manner.

Irresponsible actions become as endless, as they are self justifiable, when they are ordered by those who are not held responsible, nor are such effects seen as a discomforting problem by those who are found to be completely unaffected by them from within their own supremely gated communities.

This Nation will not be long held united by nine men in political robes, who intend to subvert the will of the people and undermine their Constitutional republic.

This 14th amendment has been so damn misconstrued, that it now binds us more to suppositions, and inferences, then to its original intent.

In communist nations, those national leaders do not have to give a (donkey’s red blanketed ass) as to whether, or not, they are agreed with, but in our county, these federals believe that our people, do not have a permanent right, to what they themselves have agreed.

How could any “liberal”, or any “conservative” support a judiciary that has declared itself to be the independent masters of our laws, as well as our own Constitutions.

Why should it not be of our peoples concern, as to what issues, are then taken out of those hands of our own legislators.

When absolute authority can be bestowed on any governing body, by these mere opinions of Judicial Kings, this my fellow countryman is tyranny

If the Supreme court can act with such will, then there is no point in having any Constitutions.

Of what value are the peoples own Bill of rights, if congress can use their own Bill of rights, against them.

How can you execute and enforce something, you yourself do not understand, and how can an entire republic allow itself to be forced by what it does not itself understand.

Michael says, "I don’t have much hope of this viewpoint getting to the mainstream, especially since even allies of the 10th amendment and limited government are so adamant about pushing for this kind of expansion of federal power, but I’ll continue making the case!"

Actually, what the allies of the 10th stand for is the 10th. That's it.

So, assume we have an ORIGINAL Constitution. Assume, too, we add the BOR that provides what the federal government cannot do.

Now, assume, we amend and add the 14th, which says, "No state shall...."

Now, this 14th is a brand new thing. Obviously, it cuts into the 10th. That was its purpose. Whatever is prohibited to the states by the 14th, by definition, is no longer a power reserved to the states.

Now, do you support powers reserved by the 10th as they were BEFORE the 14th was added? Or do you support the powers reserved by the 10th as they are AFTER the 14th was added?

There is where I think your argument could be clarified.

Michael says: "The point about “nothing new” was that while there would be something new in practice, it was conferring nothing new as far as constitutional principle. And since the constitution would never, ever have been considered to be in force against the states (except where it’s said specifically), nothing new, means exactly what it says. The system didn’t change."

This is the flaw in the logic. You can't have (1) something new in practice, AND (2) nothing new as far as Constitutional principle.

Constitutional law contains principles that are practiced. If the practice is ordered to be changed, the princple has, by definitionm changed.

That is why the 14th created a change. It says "No state shall..." That is a new principle, and it necessitates a new practice.

On the Second Amendment, in the Heller case, Scalia writes of the 1866 Acts and commentary regarding the right to bear arms. So, if the 14th was to put into place the P&I of the civil rights Act of 1866, then, it would seem the 2nd Amendment WAS incorporated. If I am reading Heller correctly (and it is possible I am missing something by skimming), Cruikshank is no longer valid.

Here is what Heller says regarding the history:

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment , and the Right to Bear Arms, 1866–1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment , they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried:

“in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).

The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19.

Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated:

“[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . ” 14 Stat. 176–177.

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment . For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty … under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

Gutzman's statement "that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government" is right on the money.

The key to understanding the purpose of the Bill of Rights is contained in the first paragraph of the preamble to the Bill of Rights. This provision states the amendments were being proposed to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended. The amendments, when adopted, did not grant or create any so-called “constitutional rights.” The sole purpose of the amendments was to place additional restraints or limitations on the powers of the federal government.

The Bill of Rights was simply an enumerated expansion of the system of limited government established by the Constitution.

Michael: "One last point that might be of interest. ….many of the states have, in their constitutions, specific clauses telling the government not to violate free speech. And, even the Connecticut constitution, ratified in 1965 (yes, 1965), included a list of rights analogous to the bill of rights. I wonder why they even included it if this was in the realm of the federal government."

I am sure you are already aware that in politics and law, there is always another counter-reason. Often, states mirror federal legislation. It's not necessarily because the federal legislation does not bind the states in the first place. They also do this because it settles the question by enacting a symmetrical state law. That way, nobody gets to argue that federal law does not control.

In other words, such acts by the states effectively remove the debate about whether a certain right exists by virtue of federal law. If both state and federal law cover it, there's no more arguing "federal versus state."

The "federal preemption doctrine" pervades law on a daily basis in the courts. It would be incorrect to point out a handful of US SCt landmark cases and assume this issue of federal preemption is all a bunch of hogwash by fiat.

There is a very robust (indeed far too exhaustive) collection of opinions at all levels of courts and throught a wide array of subject matter. There is no way to categorically label the preemption doctrine as "bad" or "good." The cases are all so different.

Preemption is dealt with daily in the district courts. That's how pervasive this issue is, and it is a very legitimate issue and not a bunch of trumped-up federal usurpation. Some of it is, though.

That's why state laws often mirror federal laws. Economies are built-in to accomplish uniformity and end the preemption dispute.

The Reconstruction 'amendments' were declared as properly ratified under Art. V, but the ex-confederate States were under martial law.
Start here: USchronology.com; search on 14th amendment; here's our first entry on this subject:

12/5/1865
Democratic (constitutionalist) Senator John P. Stockton, of New Jersey, is handcuffed to his desk and carried out of the Senate chamber; thus prevented from voting “NO” on a proposed 14th amendment. Which will create United States subject citizenship (second-class citizenship) for freedmen (freed slaves), and anyone born after this date. The amendment is fraudulently certified as having received the required two-thirds Senate vote—because of Senator Stockton’s abduction—and unlawfully sent to the House of Representatives for consideration and eventually proposed to the states for ratification.
Pinckney, G. McElwee, “The 14th Amendment to the Constitution of the United States and the Threat that it Poses to Our Democratic Government,” 1959 S.C.L.Q. 484-519. [updated 1/3/2001] {This is one of 96 references found.}

There is NO QUESTION about the validity of the PROPERLY RATIFIED 10th Amendment.

Yes, Michael. I thin we are simultaneously headed toward the common ground on how to analyze this.

The 2nd section of Article IV: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” NOTE: This says P&I of citizens of the SEVERAL STATES.

So, if you go to Montana, you must do as the Montanans, and you must be treated as a Montanan. That's basically it.

The 14th says: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

NOW, FOR THE FIRST TIME, we see P&I of the citizens of United States.

So, we have to ask, "Were the P&I of citizens of the US different from those of the several states?"

For one thing, the privilege to be free to speak one's mind was certainly a privilege afforded to US citizens. Maybe, before the 14th, a state could abridge speech. But after the 14th, a state could not.

They were not different TYPES of P&I. It was just that the SAME types AFFORDED to US Citizens were now mandated to be afforded by the states to all citizens of the United States.... or at least not abridged or impaired.

At least.... that's my take. I don't see how a state can abridge the freedom of speech by its own citizens, while at the same time, not impair the right to free speech afforded to US citizens. The same goes for the others in the B of R.

Michael Boldin said: "Either way, the bottom line is that liberty is best secured when power is decentralized - and our rights aren’t somehow left in the hands of a few judges to decide on."

I just ordered the P.I.G., and will be interested to see where my (admittedly) deficient understanding of our rights in a free society are at odds with your statement. 2A is a great vehicle to use to grasp the position of all types of folks when it comes to their position on both theirs and mine. I'm pretty sure the Founding Fathers would be aghast that by crossing the bridge into New Jersey from Pennsylvania my carrying of a Remington 10/22 rifle would not only put me in violation of their civil law of having a 'deadly weapon', but would also bring on criminal charges because it is a semi-automatic with a magazine holding ten rounds.

Much as I admire Ben Franklin, I very much doubt he would have foreseen the growth of the Maggot Media from the printing presses of his day to the ubiquitous radio, TV, and movie cabals of today. We have the right to freedom of the press and to report every and any political information we gather; yet without a "Press Pass" we are not allowed into any of the political briefings at the White House, Senate, or House - except under very scripted and restricted control. That same attitude is being visibly shown this August by the many Town Hall type meetings where the politicians have either sent underlings, walked out, or just ignored or evaded answering the direct questions of their constituents.

The second paragraph of the Declaration stated exactly what our Founders meant:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."

All men - not some men.
Endowed by their Creator - not allowed by some men.
Unalienable rights - not alienable privileges.

Is the Constitution perfect? No, but the Founders were sharp enough to provide for the Amendment process to resolve future details. I don't for a minute believe they were intent on setting us up as a federation of principalities run by oligarchs with or without robes.

Thanks for the interesting discussion.

Great article.

It seems that the republicans are continuing their flawed logic, firmly established under President George W. Bush, that big and unrestrained government is ok as long as it is THEIR big and unrestrained government. They rail against big spending, but when they do it is ok. Big spending is ok as long as it is their big spending being spent on things they like. But if it is the democrats' big spending it is "terrible". Not "terrible" because it is an expansion of government and a waste/improper use of taxpayer funds, but "terrible" because it is being spent on things that don't benefit them or on things they don't like!

Furthermore, as many of the examples in this article demonstrate, unconstitutional legislation seems to be ok with them as long as it accomplishes something they support, such as concealed carry for all. The ends justify the means, if you will. This is a slippery slope to go down.

Gone is the adherence to principles, regardless of party position. The party has become their guide, rather than the founding documents. This is why I am most likely going to unregister as a republican before the next election.

And it is even worse on the left side. Just yesterday I explained that the mandates on the states in the proposed healthcare legislation is unconstitutional because they violate the Tenth Amendment. I was told by a leftist, and I quote, "hey Jason, the Constitution was written in the 1780's...back then you paid the doctor with chickens. Times have changed my friend."

Pretty ridiculous, wouldn't you say?

So quickly are many of our citizens and politicians willing to cast our founding documents into the trash in order to accomplish what they think is good for society.

However, I do have one question about this article, specifically this part: "In Gonzales v. Carhart (2007), the Supreme Court upheld a congressional ban on partial-birth abortion. In a concurring opinion in that case, Justices Antonin Scalia and Clarence Thomas noted that the Commerce Clause, as properly understood, did not give Congress power to enact such a ban.

However, they said, so long as the Court’s unfounded Commerce Clause precedents stood, Scalia and Thomas would join in extending them to this new area.

Principled originalism in action!"

If Thomas and Scalia CORRECTLY recognized that the much perverted commerce clause does not grant the federal government the power to enact this ban, then why did they go along with the majority, citing precedent? Where in the constitution are judges bound to adhere to SCOTUS precedent, especially if such precedent is blatantly unconstitutional. Gutzman identifies this as "principled originalism", which according to his definition means that "judges should be bound by the peoples understanding of a particular constitutional provision at the time they ratified it". However, it is very obvious that at the time the constitution was ratified, that it was not the understanding that the commerce clause should be used to grant the government boundless power over anything that could be even remotely linked to "interstate commerce". In a recent article featured here called "Claiming everything is commerce", this is validated through extensive research into the usage of the word "commerce" during the time the constitution was written.

Perhaps I am simply not understanding this part of Mr. Gutzman's piece? Why is adhering to precedent regarding the commerce clause that does NOT correctly reflect the peoples' understanding of the clause at the time the constitution was ratified considered to be "principled originalism"? Thanks in advance for any explanations.

The 14th was passed to confer a narrow, limited set of privileges. If there was any intention of “incorporation” with the 14th, it wasn’t the entire bill of rights - the ratification of the amendment, and dozens of court rulings over the first few decades makes that quite clear.

What evidence is there that it was only a limited set or privileges? What part of it’s ratification?

Instead, the only real incorporation would’ve been the Civil Rights Act of 1866. It’s author, Sen Trumbull, said that those rights being conferred were “the right to acquire property, the right to come and go at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property.”

Why does Trumbull, the author of the CRA of 1866 (I assume, since I believe it was John Bingham that wrote the 14A), get to decide what the 14A means with a piece of legislation? I thought the whole point of 14AS1 was to say that the freed slaves were legal US citizens an that everyone (in particular) freed slaves had the same rights as anyone else, the Bill of Rights. Even though we are talking about originalism here, which I do prefer, why was the wording of this amendment not more conducive to the quote above if that is what it truly meant? Instead, it was left to a much broader interpretation.

If you read the P.I.G to the Constitution, you’ll see how Gutzman makes the case that the 14th was never legally adopted anyway.

The P.I.G? Interesting, the more and more I read it seems most amendments haven’t been legally ratified.

Either way, the bottom line is that liberty is best secured when power is decentralized - and our rights aren’t somehow left in the hands of a few judges to decide on. When you give them the power to “grant” rights, you also give them the power to take them away.

I absolutely agree with this statement; however, I do have to take argument with your first statement in which you said that the court rulings of the time affirm that the true meaning of the 14A was "this" and not "that." Isn't this in and of itself contradictory to your final statement of leaving it up to a few judges to decide our rights? I would think it would not matter what the Supreme Court says since there inception they have, in my opinion, made unconstitutional after unconstitutional decision. I would much prefer to go with my own understanding of a certain provision than some justices. Am I wrong in feeling, generally speaking, that most Supreme Court decisions (if not all) were flawed in some way or another (some small part of it being unconstitutional or the whole decision being down right unconstitutional)?

Jefferson read Locke, and restated this position in some of the most beautiful English ever written. The Glorious Declaration is an artifact of history, it may be discussed, even disparaged, but it CANNOT be repealed or amended. Excerpt:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness. - That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed,- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.__ ***

If the Constitution of Original Meaning & Intent has been so distorted that the original limits of the Constitution CANNOT be discerned in the positions and actions of the present administration, then we are left with the primary Founding document that cannot be corrupted.

Parapacem, parabellum. Buy specie, guns and groceries.

"WHENEVER LEGISLATORS ENDEAVOR TO TAKE AWAY AND DESTROY THE PROPERTY OF THE PEOPLE, OR REDUCE THEM TO SLAVERY UNDER ARBITRARY POWER, THEY PLACE THEMSELVES INTO A STATE OF WAR WITH THE PEOPLE, WHO ARE THEREUPON ABSOLVED FROM ANY FURTHER OBEDIANCE." John Locke. Englih Philosopher.

KEEP THE POWDER DRY!

Jason, Thanks for your courtesy. BOR it is.
I would like to mention that to enforce the 10th we might want to repeal or laugh out of court, the false 17th, which removed the selection of U.S. Senators from their State's legislatures, and threw the election of Senators into the same pond of passions as the lower house.
If nothing else, this rotten act broke a major check & balance carefully written into the original Constitution.
Here's an entry from www.USchronology.com: Description

1/5/1788
Bright Alexander Hamilton, using the pen name “Publius,” publishes “Federalist #34,” paragraph two of which explains the importance of maintaining two independent legislatures:

It is well known that in the Roman republic the legislative authority, in the last resort, resided for ages in two different political bodies not as branches of the same legislature, but as distinct and independent legislatures, in each of which an opposite interest prevailed: in one the patrician; in the other, the plebian. Many arguments might have been adduced to prove the unfitness of two such seemingly contradictory authorities, each having power to annul or repeal the acts of the other. But a man would have been regarded as frantic who should have attempted at Rome to disprove their existence. It will be readily understood that I allude to the COMITIA CENTURIATA and the COMITIA TRIBUTA. The former, in which the people voted by centuries, was so arranged as to give a superiority to the patrician interest; in the latter, in which numbers prevailed, the plebian interest had an entire predominancy [sic]. (Emphasis in the original)
Postscript: This concept of bicameralism has been vitiated, demeaned and disparaged by the fraudulent 17th amendment.
(This is the first of 26 entries.) I searched on 17th amendment.

Jim,

When I wrote "BOH", it was actually a typo. I meant to write "BOR". I'm not sure why it happened twice.

Excellent point Jason...

“Such a drastic change would have certainly been VERY clearly explained and much debate would have existed at the time about it.“

And lets not forget that many of the signers of the Constitution itself, were former State legislatures and State attorney Generals

Many had also partaken in their State constitutional conventions, and were responsible for the formation of their own State Constitutions, and some had even signed the Declaration of Independence.

So when these federal judges attack our republic, they have betrayed the people.

Jason Greene Says:
August 15th, 2009 at 7:31 pm "framers intended for the BOR to be enforcable upon the states. I would say that just because congress did such a thing does not mean that they have been granted the power to do so in the constitution–which is one of the primary reasons we are in this mess and this website exists!

He also repeatedly mentions Madison’s support for the BOH to be enforceable on the states and uses this to justify his position that the 14th does this."

What is "BOH"? I get BOR for Bill of Rights, but what's BOH? This is only one example.
On my keyboard H & R are not adjacent, so I can't think it's only a typo.

Here is an interesting take on the 14th Amendment and its historical context, which I am sure that Michael Boldin is familiar with.

http://www.law.harvard.edu/students/orgs/jol/vol42_1/kaczorowski.php

This Harvard professor argues that congress does, in fact, have the power to enforce the BOR on the states. His argument focuses mainly around the civil rights act of 1866, claiming that this act was enacted to protect AND ENFORCE the rights of all US citizens, and thus was incorporated into the 14th amendment in order to ensure its constitutionality and to place statutory guarantees of civil rights into the constitution.

Personally, I think this professor is making a huge leap here. I think he is confusing "privileges and immunities" (which are ones of the focuses of the 14th) with the actual rights recognized by the bill of rights. The 14th does provide safeguards for privileges and immunities, but I believe that it clearly does NOT grant the federal government the power to safeguard the rights in the BOR. He is also disregarding that the definition of P&I was already defined in the constitution and it was not a synonym for the BOR.

He also repeatedly cites several examples of congressional use of plenary power to enforce things upon the states (such as property rights) as evidence that the framers intended for the BOR to be enforcable upon the states. I would say that just because congress did such a thing does not mean that they have been granted the power to do so in the constitution--which is one of the primary reasons we are in this mess and this website exists!

He also repeatedly mentions Madison's support for the BOH to be enforceable on the states and uses this to justify his position that the 14th does this. However, he fails to mention that this idea of Madison was soundly rejected by congress, as Michael Boldin repeatedly touched on.

Futhermore, the Supreme Court recognized the limited reach of the 14th Amendment several times, including in Barron v. Baltimore. It wasn't until the middle and latter half of the twentieth century that the "incorporation doctrine" was adopted by the courts. This would clearly indicate that the originalist view of the 14th was NOT to allow the federal government to apply the bill of rights to the states.

It is leaps such as these, where people try to find holes in the constitution and/or twist its words in order to justify granting the government more power, that have really screwed things up. If the framers really wanted the 14th to make the BOR federally enforceable on the states, they would have EXPLICITY said so. The amendment would have specifically defined it or they would have added a completely separate amendment stating so. They would have had to because the BOH clearly states things like "congress shall make no law", rather than, "a state shall make no law".

Think about the following if you subscribe to the incorporation doctrine--if it was really the framers' intention to make such a huge, sweeping change to the constitution and federal power, why would they do it in such a subtle manner as to make people wonder what the intent was????? Why would they choose to completely change our decentralized government into a centralized one with and in an amendment that was about naturalization, emancipation, representative apportionment, and insurrection?? Such a drastic change would have certainly been VERY clearly explained and much debate would have existed at the time about it. It would have been made so clear that no room for speculation would have been left, which would have most certainly required a separate amendment.

This same logical concept I've outlined regarding the perversion of the 14th Amendment also applies to the theory that the "necessary and proper clause" grants the government the power to do whatever it basically wants--why would the framers have even bothered to write such a document that limited and restrained government power with an extremely elaborate set of checks and balances if they were going to simply include a clause that grants unlimited power to the same government? It just makes no sense.

Excellent comments so far here. I appreciate the dialog here very much because I have learned a great deal from it.

There are two kinds of politicians, those that wish to control you and those with no such intentions. (with Thanks to Robert A. Heinlein) The Constitution tries to control the former group. Works fairly well, all things considered. Sure beats out the Parliamentary type of government. Probably be a lot less problems for other countries, if their provinces or whatever, were sovereign states allowing central government a few privileges, but no rights.

My thougths on the Thune Amendment which I (now) believe is consistent with the Constitution and its protection of Federalism.

Good comment - Lockaby
“Perhaps I am missing something here, but it seems to me each amendment in the Bill of Rights defines its own application, at least to a point.”

If the state legislatures had this right to ratify “all, or any” of these ten proposed amendments, then certainly it would not follow, that the possible rejection of any one of these amendments would, then overpower, the usefulness, and the authority, of the others remaining.

And likewise it would seem to me that …

No general amendment can be prescribed to be to that very purpose of every other amendment, every amendment must be tuned to its own discourse and purpose, or all amendments of any other kind are irreverent, and they are then liberated from us, without decision.

No general amendment, nor this opinion, that there is one, can be Constitutionally used to subdue all other amendments, or all other Constitutions, at will.

“It is not the function of these federal courts, nor its federal legislative body, to alter that method by which this Constitution has affixed our amendments.”

The fractioning of this Constitution’s proper amendment procedures by this designing of a National amendment which is intentionally allowed to be so vague as to afford to any branch of this federal government, all rights, to those majority restraints constitutionally conceived firstly by the people, would be a tremendous assumption of right, for any, conceivable form of totalitarian action, against this Constitutional Republic, caused, by anyone who would use such an amendment in this manner.

Irresponsible actions become as endless, as they are self justifiable, when they are ordered by those who are not held responsible, nor are such effects seen as a discomforting problem by those who are found to be completely unaffected by them from within their own supremely gated communities.

This Nation will not be long held united by nine men in political robes, who intend to subvert the will of the people and undermine their Constitutional republic.

This 14th amendment has been so damn misconstrued, that it now binds us more to suppositions, and inferences, then to its original intent.

In communist nations, those national leaders do not have to give a (donkey’s red blanketed ass) as to whether, or not, they are agreed with, but in our county, these federals believe that our people, do not have a permanent right, to what they themselves have agreed.

How could any “liberal”, or any “conservative” support a judiciary that has declared itself to be the independent masters of our laws, as well as our own Constitutions.

Why should it not be of our peoples concern, as to what issues, are then taken out of those hands of our own legislators.

When absolute authority can be bestowed on any governing body, by these mere opinions of Judicial Kings, this my fellow countryman is tyranny

If the Supreme court can act with such will, then there is no point in having any Constitutions.

Of what value are the peoples own Bill of rights, if congress can use their own Bill of rights, against them.

How can you execute and enforce something, you yourself do not understand, and how can an entire republic allow itself to be forced by what it does not itself understand.

Michael says, "I don’t have much hope of this viewpoint getting to the mainstream, especially since even allies of the 10th amendment and limited government are so adamant about pushing for this kind of expansion of federal power, but I’ll continue making the case!"

Actually, what the allies of the 10th stand for is the 10th. That's it.

So, assume we have an ORIGINAL Constitution. Assume, too, we add the BOR that provides what the federal government cannot do.

Now, assume, we amend and add the 14th, which says, "No state shall...."

Now, this 14th is a brand new thing. Obviously, it cuts into the 10th. That was its purpose. Whatever is prohibited to the states by the 14th, by definition, is no longer a power reserved to the states.

Now, do you support powers reserved by the 10th as they were BEFORE the 14th was added? Or do you support the powers reserved by the 10th as they are AFTER the 14th was added?

There is where I think your argument could be clarified.

Don't they, though?

Another great article from Gutzman! Points out the lying hypocrites in the GOP who pretend to be originalists. "Originalism for thee but not for me." True admirers of liberty who advocate this have their heart in the right place whereas the political Republican panderers are just being disingenuous and manipulative. Republicans make me sick!

Michael says: "The point about “nothing new” was that while there would be something new in practice, it was conferring nothing new as far as constitutional principle. And since the constitution would never, ever have been considered to be in force against the states (except where it’s said specifically), nothing new, means exactly what it says. The system didn’t change."

This is the flaw in the logic. You can't have (1) something new in practice, AND (2) nothing new as far as Constitutional principle.

Constitutional law contains principles that are practiced. If the practice is ordered to be changed, the princple has, by definitionm changed.

That is why the 14th created a change. It says "No state shall..." That is a new principle, and it necessitates a new practice.

Yes, Michael. I have a general familiarity with the problems associated with judicial activism. But, it is impossible to expect judges to be inactive. This, I explained, I think rather well, above. If it was not for the NEED for judges to decide what laws MEAN, we would not need courts at all.

Does this understanding mean that I am ready to just chalk everything up as "fine?" Not on your life!

I might agre that fiat is necessary and CAN be good, but that does not mean I believe ALL fiats are good.

I am VERY, VERY much for a very marked retreat in the activities of the federal government. So, like you I will stand firm, and argue my ground. But honestly, and I think fairly, I cannot profess to possess the key to perfect logic. That key does not exist in the law. It never has exitsed and never will.

BTW: There are many, many cases before 1925 that vastly expanded the role of the federal government. We covered lots and lots of them in law school. I can't give you names off-hand, but could easily find them and compose a list. There really was not big "swing" in judicial temperament since 1925. Rather, it has been a continuum pretty much right out of the starting gate in 1781. There have, however, been some very big blips here and there, such as the Social Security Act litigation. The reason for the big blip was not because judicial temperament swung in a very big way. It is because Congress enacted some far-reaching legislation.

This is why I have always maintained that those placed in power seek more power. This process is unavoidable. I do not believe it is humanly possible to have a government that does not seek to grow itself. That's where the role of the people becomes so important.

As history has proven time and again, government will always grow until the point when the people rise up and tear it down.

On a side note as regards this debate concerning legal methodology of construction and interpretation, this was a concept that was unsettling to me as I was going through law school.

My undergrad was in accounting. Except for a seemingly small amount of accounting that deals with GAAP (Generally Accepted Accounting Principles), which are akin to statutes, much of accounting was logic and math. You applied both and BAM! You either got the answer right, or you got it wrong. I was VERY good at that.

Then, came law school. Going in, I figured it worked pretty much the same way with laws. You researched, studied and BAM! You found the answer.

This was FAR from the case. In law school, we spent pretty much the entire time struggling over the confounding problems that surround interpretation and construction. I was largely in denial for a good while.

A few years after I was out in practice with a firm, I realized that all the confusion the law professors were trying to drill into my head was EXACTLY what law-making and legal interpretation and construction is all about. Once I accepted that, there was no choice but to conclude that, as Sotomayor proclaimed, the courts do INDEED make law.

This is not something that we should look at as being abhorrent, so much as it is that the courts would not need to exist BUT FOR the incompleteness of the Constitution and statutes. Therefore, the courts make laws out of NECESSITY.

So, it is what it is. We just have to chalk it up, accept it, and deal with it as everyone else does - just struggle, argue, debate, and forge ahead.

Yeah, Michael. I think probably my use of the phrase, "nothing new" is causing confusion.

In one sense, "new" could mean that "Blacks get to vote," because they did not before. In another sense, "new" would not come from Blacks getting to vote because the right to vote was already recognized for other classes.

So, I meant to use "nothing new" to mean something not otherwise recognized to at least one class of citizens - like there was no "new" right to have free car wash passes.

Basically - and this is very important - the 14th, FOR THE FIRST TIME, mentioned the privileges and immunities of UNITED STATES CITIZENS. Prior to that, the Constitution mentioned only the privileges and immunities of the citizens of the SEVERAL STATES.

As is apparent, the several states could have different sets of privileges and immunities. The original idea was that, "When in Rome, do as the Romans, and you must be treated as a Roman." That was the way it was to work, IMO, from state to state.

Then, along comes the 14th. Now, we have mention of P&I of citizens of the UNITED STATES. Obviously, this was a reference to a uniform set of P&I that extended NATIONWIDE.

What were these exactly? They were not defined. That gives rise to the debate. You, for example, mention the civil rights Act of 1866 as defining them. Yet, we have all sorts of writings in this particular period that describe different sets of privileges and immunities. Some mention the right to bear arms. Others do not. How do we know which is right? When, in SOME BUT NOT ALL of those writings, there was omission of the right to bear arms, was this intentional (i.e. a contention that no such right existed?). Or was it unintentional - perhaps part of discussion of some other right or rights, rendering the need to mention the right ot bear arms unnecessary to the issue at hand? Will your answer change when you see OTHER writings of the same period of time actually maintaining there indeed WAS a right to bear arms?

You can't tell. None of us can.

So, this leaves the definition of P&I of citizens of the UNITED STATES basically "up for grabs." This necessitates JUDICIAL FIAT. There is no other way, absent additional amendment which never occurred.

So, IMO, judicial fiat was an absolute necessity becaused the definition was not contained within the 4 corners of the document. It is not quite right to suggest judical fiat makes all things invalid - and this is especially so when judicial fiat becomes ABSOLUTELY NECESSARY due to the ambiguity inherent within the document.

In ordinary contract law, this same problem exists. If you have a contract that says, "Construction of the kitchen shall be completed within a reasonable time," somebody OTHER THAN THE PARTIES TO IT will necessarily have to decide what is reasonable when the PARTIES DISPUTE WHAT IS REASONABLE.

That's what fiat is all about. Filling in the gaps.

We do not always agree with the decisions made as a result of fiat, but to suggest fiat is invalid cannot be right. The only thing we could honestly hope for is a DIFFERENT fiat.

So, for example - and we all do this all the time as Gutzman says - we decry the fiat that the power to regulate interstate commerce includes the power to regulate all things that "affect" interstate commerce. On the flip side, we praise the fiat that privileges and immunities of citizens of the United States include the right to enter and travel among the states freely.

I guess Gutzman is right, and we are all hypocrites. Frankly, though, I see it the other way around. We are not hypocrites, because fiat is an absolute necessity. Nobody could make it through life without fiat.

When a third party is to be the arbiter (as opposed to leaving the parties to their own volition as to how to settle disputes between them), the arbitrator must decide what things mean when the contract or document does not contain a certain definition within its 4 corners. Part of the process of construction is to look outside the 4 corners when an ambiguity exists. That is commonly called "examining parol evidence."

Parol evidence can include other "writings of the day." But in examining parol evidence, there is no doubt conflicting evidence will be contained in them. So, then what? Finally, at some point, you have to insert your best judgment and just "make the call" and bring an end to the issue.

That's what all judges do.

So, to come full circle, if it is your contention that the 1st is not incorporated into the 14th, that conclusion can only be reached by fiat. If it is my contention that the 1st IS incorporated, that conclusion can likewise only be reached by fiat. We are just without recourse to really be able to PROVE the other wrong.

That's just the way it is. That's why I admit there are holes in my reasoning. Likewise, that's why I maintain there are holes in yours. There is not a living being that can answer this issue with that degree of logic and authority such that everyone will look up, see the skies part, and be at awe as the sun shines in.

Though I find the gaps to cause frustration, I do enjoy these debates. Life might be rather dull if everyone knew everything. That would mean we would, by necessity, have to be all the same in our opinions.

On the Second Amendment, in the Heller case, Scalia writes of the 1866 Acts and commentary regarding the right to bear arms. So, if the 14th was to put into place the P&I of the civil rights Act of 1866, then, it would seem the 2nd Amendment WAS incorporated. If I am reading Heller correctly (and it is possible I am missing something by skimming), Cruikshank is no longer valid.

Here is what Heller says regarding the history:

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment , and the Right to Bear Arms, 1866–1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment , they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried:

“in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).

The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19.

Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated:

“[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . ” 14 Stat. 176–177.

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment . For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty … under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866).

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

For all you history buffs out there, the bill of rights was a reaction to an episode of over taxation by the state of Massachussetts. The incident is called Shay's rebellion and took place in Great Barrington, MA. The southern states wanted the second amendment, but the northern states disagreed with the belief that the southern states would use the second amendment to defend themselves from slave rebellions. Shay's rebellion changed the mind of northern statesmen to accept that a bill of rights was necessary to defend themselves from the future potential tyranny of federal and local governments.

I have seen this too among the republican positions. It's hard not to like some of theses causes but we must remember, that we cannot preserve some rights while throwing away all others. The Constitution is not a parshaly accepted document, it is all or nothing. We must respect their rights to do drugs if we are to expect them to respect our rights to own guns.

This is part of living together, as Lincoln hypocritically paraphrased from the bible with perhaps an entirely different idea of its meaning in mind, "A house divided against itself cannot stand,"

Well like it or not we have been divided against ourselves under the house of the Constitution of the United States, in this futile self-destructive political conflict. we have to learn to respect each others rights if we are to live together in happiness and peace under the same federal house.

That starts with true states Rights under the Constitution, the federal Government should be an agent of protecting the States from other states not limited to the foreign variant, not one of attacking/ waging war upon our rival states.

We have to grow up and respect the fact that all of our States and the voting people in them are adults and thus entitled to govern and live their own lives. We have to recognize that our wise founding fathers established a very limited set of areas in which we are permitted to in anyway forcefully affect the rights of the people of the other states, and that those rules are spelled out in the Federal Constitution. In all other respects the people of each State are entitled to determine their own fate for themselves.

We have to end this political war over our rights between the democrats and the republicans, and it is my believe that can not be done thou federal politics, as no one party can be trusted as the guardant of the Constitution. Instead it must be done thou a separate body perhaps represented in both sides, but of an intrinsically separate and competing position. In the United States the only such group relative to the federal government is that of the individual State Governments.
The problem is, as it has always been, where as there is a single federal government there are 50 different State governments not only competing with that signal federal government for power but also each other in the form of people and business.

This makes it easy for the federal government to divide and conquer them like they have divided and conquered the people. How we prevent such I am certainty will require constant vigilantes on behalf of the people and their states, a state of vigilantes we have failed to provide over the last 100 years.
Restoring the States should aid us in restoring some of that needed vigilance by bring one more watchful and active player on the seen with the resources and job to watch full time. But it will not end the political war between party, that has led to this gradual usurpation, the key issue here is in fact just that issues, people need to be informed of what issues the federal government is allowed to deal with and what issues are simply not legitimate federal issues. They need to read their own constitution, and stop foolishly electing people on the grounds of issues their post enables them no legitimate authority over. Short of doing that we will never have any election beyond that of a mob.

States and good courts can at best make their implementation a bust, until finally someone aches enough political power to overpower the states and courts themselves. The key to liberty and constitutional republicanism, is education of the people who vote in the nature of that constitution.

If we fail there, our back up barriers will at best buy us a limited amount of time to fix it, before that failure inevitably conspires over time to overwhelm them as well.

Gutzman's statement "that the Fifth Amendment, like the rest of the Bill of Rights, is a limitation solely on the Federal Government" is right on the money.

The key to understanding the purpose of the Bill of Rights is contained in the first paragraph of the preamble to the Bill of Rights. This provision states the amendments were being proposed to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended. The amendments, when adopted, did not grant or create any so-called “constitutional rights.” The sole purpose of the amendments was to place additional restraints or limitations on the powers of the federal government.

The Bill of Rights was simply an enumerated expansion of the system of limited government established by the Constitution.

Michael, here is a pre-1866 discussion of P&I in the 1856 case of Dred Scott:

"More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full LIBERTY OF SPEECH in public and in private upon all subjects upon which ITS OWN CITIZENS might speak; to hold public meetings upon political affairs, and to KEEP AND CARRY ARMS wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."

Interestingly, then, the Court refers to free speech to the degree the state's citizens enjoyed it. Though it doesn't say the same as to other P&I's, you can see that entering other states at any time meant ANY state, so that one is federal. It doesn't speak clearly on the right to carry arms. It does say to keep and carry "wherever they went," but do they mean "in that state" or "in the nation?" They just don't say.

I do think the thought of the day in 1856 as to free speech is in tune with your thoughts as to what was going on in 1866. But the 14th did not speak of privileges and immunities of citizens of the several States. Instead, it spoke of privileges of citizens of the United States. That's a bit different choice in words and can make all the difference in the world.

It'd be nice to hear Gutzman's thoughts on this topic since it was his article that brought it up.

Mr Bolton:Both political parties are opposed to your liberty - unless it fits within their realm of expanding federal power....

Your point here is excellent and has been manifested over years as the national parties have taken control over all of the political processes that prior had emanated from the states...i.e state political parties.
As that has occured so has the continued extraction of the principles of the right of states in relation to a central government.

In this last national primaries election among many other instances we saw both the Republican National Party and the Democratic National Party.committee...
simply take away votes from those casts in certain states whose state legistlares decided for one reason or another to change the date of primary elections...from that designated by the National Parties.

There are those who have stated in fact in regard to the Democratic candidate selection this usurpation literally determined the outcome of the candidacy. I am one of those.. who so states as a matter of fact.

Thus this trend exists both in literal party rules and operations as well as in laws promulgated. This decline is not new and it will take effective determined persistant action to stop...or rather..turn back.

ONWARD!

The key thing to remember is that the Bill of Rights doesn't grant rights. It merely makes explicit the fact that the federal (and, depending on how you view the 14th, perhaps the states') government cannot legitimately infringe those rights. It's is incredibly apparently that this is true, because of the arguments made for the bill of rights in its passage, and then entire argument surrounding the Constitution and other founding documents such as the Declaration of Independence.

So... we have to ask ourselves: do people have the right to freedom of speech? (for example) It's pretty clear that everyone thought they did at the time the BoR was ratified.

The states can no more legitimately infringe on that right than the federal government can. If a state tries to do so, it is a tyranny. Period.

The question then becomes "who should ensure/enforce that these rights are not infringed".

My answer is: as many entities as possible, please. The federal government saying "we're not going to enforce right" doesn't hurt us. Saying we *will* enforce this other right does help us. They can't (or, rather, shouldn't) take our rights away. But states can't either.

Adding the federal government to the list of entities that is allowed to protect our rights doesn't offend me at all. Personally, I believe the 14th amendment actually did that. The privileges and immunities of US citizens referred to in the 14th clearly include (to me) all those mentioned in the Bill of Rights (and all other amendments and clauses of the constitution).

That's a totally separate question than whether the Constitution grants other powers to the federal government. I would hope most here would agree it doesn't. The commerce clause, in particular, is wildly abused (though I'm not sure how much practical difference that makes, since very little commerce *really legitimately* is intrastate these days). The power to use tax receipts for ungranted federal powers is another example.

Those things I care a lot about.

Eric said: "Obviously to be just in ones acts one must try to work within the system. Once it is shown to be completely corrupt then there will be evidence to be justified in taking steps that are otherwise rash and might undermine the loyalty of those who seek justice. Presumably we fight for what we believe in so we must believe whole heartedly in that decision to force compliance with our lost just enterprise, the constitution."

I agree. We first try to work within constraints in the document. However, it is very clear that the document cannot and does not provide remedies. The only process described is the voting process. Voting works for democracy, but the Bill of Rights, including the 10th Amendment, are fundamentally contrary to democratic rule.

That's why, for example, Michael and others espouse nullification, and we are seeing that remedy being used by the states.

Nullification is not the only remedy, either. Just look at the link above that described the process of how the 14th Amendment passed. It passed under martial law and the Reconstruction Acts (basically, by force). If the current regimes in the South weren't going to pass it, they were going to be denied seats/votes in Congress, until such time as they did pass the 14th.

Coercion to deconstruct the Constitution and reconstruct it should never rule out counter-coercion of all sorts - whether such coercion be polite or not. Politeness, of course, is always preferred.

I'm just saying one can envision a time when brute force is necessary. It already happened in the 1860's. History ALWAYS repeats itself. It's just a matter of when.

What amazes me is how peacefully the USSR dissolved. I'd like to know more about how they accomplished that.

What is silly about the second amendment? If you pass federal background checks to carry it is an affirmation of the right that no state should bar you from self preservation if you have satisfied the question whether or not you are a law abiding citizen and have no criminal past you are hiding in another state. It isn't a governmental over reach to suggest, or in this case to remove all doubt, that your rights are protected throughout the entire union not just in the state you reside. The constitution was the agreed upon law by all states as supreme. Thats not federalism thats constitutionalism.

To Jeff, "So many comments on this site show that people keep looking for a Constitutional way out of an Unconstitutional mess."

Obviously to be just in ones acts one must try to work within the system. Once it is shown to be completely corrupt then there will be evidence to be justified in taking steps that are otherwise rash and might undermine the loyalty of those who seek justice. Presumably we fight for what we believe in so we must believe whole heartedly in that decision to force compliance with our lost just enterprise, the constitution.

Michael: "One last point that might be of interest. ….many of the states have, in their constitutions, specific clauses telling the government not to violate free speech. And, even the Connecticut constitution, ratified in 1965 (yes, 1965), included a list of rights analogous to the bill of rights. I wonder why they even included it if this was in the realm of the federal government."

I am sure you are already aware that in politics and law, there is always another counter-reason. Often, states mirror federal legislation. It's not necessarily because the federal legislation does not bind the states in the first place. They also do this because it settles the question by enacting a symmetrical state law. That way, nobody gets to argue that federal law does not control.

In other words, such acts by the states effectively remove the debate about whether a certain right exists by virtue of federal law. If both state and federal law cover it, there's no more arguing "federal versus state."

The "federal preemption doctrine" pervades law on a daily basis in the courts. It would be incorrect to point out a handful of US SCt landmark cases and assume this issue of federal preemption is all a bunch of hogwash by fiat.

There is a very robust (indeed far too exhaustive) collection of opinions at all levels of courts and throught a wide array of subject matter. There is no way to categorically label the preemption doctrine as "bad" or "good." The cases are all so different.

Preemption is dealt with daily in the district courts. That's how pervasive this issue is, and it is a very legitimate issue and not a bunch of trumped-up federal usurpation. Some of it is, though.

That's why state laws often mirror federal laws. Economies are built-in to accomplish uniformity and end the preemption dispute.

For those interested in this issue, from somewhat of the perspectives of Boldin and Gutzman, this link provides an interesting read:

"U.S. Constitution, 14th Amendment: The Amendment that Never Existed."

http://www.14th-amendment.com/introduction.htm

I did not read everything on that page, but from what is contained there, it does appear as if the summary is a historically accurate recount of the turmoil in the process of "passing" the 14th and 15th Amendments.

While we try to historically envision everything as it is today as having come about by some superior and perfect method, this is not the case. Our Civil War was not so unlike civil wars that have occurred in many lands throughout history. To the victors go the spoils. Fiat is the rule of the day. That's just the way it works. Always has. Always will.

Does that mean that all such fiats are invalid? Not as long as they are enforced. It would take a lot of force and some counter-fiats to undo them. That's just the way it is.

This is the reason I have previously stated that many of us are losing sight of the program. If you complain that the federal government exceeds its Constitutional authority, what makes you feel compelled to follow the Constitution in order to prevail in the method of correction?

So many comments on this site show that people keep looking for a Constitutional way out of an Unconstitutional mess. The Constitution, IMO, is clearly not the only means. Nor should it be.

I hear you. On that issue, we disagree. To me, this diagreement is no big deal. I find much more going on in the federal government that serves our common goal to dismantle.

One last thought as to why I think the incorporation doctrine settles well....

If freedom of speech is not a privilege, and the states remain free to suppress it, I suppose you'd be okay with the citizens of your state getting together and banning the content of this website. Of course, you can say, "Yes, I'd be okay with that because that's what my citizens want." But there is something about a "right" that goes counter to democracy (i.e. majority rule). If your state's supreme court upheld a ban under your state's constitution, what would be your recourse? Nullification?

If "separate but equal" in the states is Constitutional, then where have we come after a bloody Civil War?

I kind of like having a check on my state government, just as I like having a check on the federal government. I am not for limiting the federal government so that the states can be free to further abridge my rights.

I am for limiting the federal government because it taxes citizens of the states to force them into paying into programs that are beyond the powers granted to the federal government. I find these so costly as to threaten our fiscal soundness. If it was just a little excess, I wouldn't care. But it has gone way out of control.

I readily admit, as you and others would easily spot by my line of reasoning, that there are all sorts of holes in my reasoning. If anyone can make an argument without holes in it, more power to them. These issues are far too complex for anyone to be able to candidly declare that their arguments are rock-solid.

We spend years and years, and generation after generation, trying to make the one, single argument where everything is unraveled in a perfect, cohesive logic. The fact is, it can't be done.

Federalism, by it very nature, is conflict. There has never been, nor will there ever be, a federalism that is completely understood and agreed to.

I do find these debates very interesting, even if they can't be fully and finally settled in a manner where everyone agrees.

The Reconstruction 'amendments' were declared as properly ratified under Art. V, but the ex-confederate States were under martial law.
Start here: USchronology.com; search on 14th amendment; here's our first entry on this subject:

12/5/1865
Democratic (constitutionalist) Senator John P. Stockton, of New Jersey, is handcuffed to his desk and carried out of the Senate chamber; thus prevented from voting “NO” on a proposed 14th amendment. Which will create United States subject citizenship (second-class citizenship) for freedmen (freed slaves), and anyone born after this date. The amendment is fraudulently certified as having received the required two-thirds Senate vote—because of Senator Stockton’s abduction—and unlawfully sent to the House of Representatives for consideration and eventually proposed to the states for ratification.
Pinckney, G. McElwee, “The 14th Amendment to the Constitution of the United States and the Threat that it Poses to Our Democratic Government,” 1959 S.C.L.Q. 484-519. [updated 1/3/2001] {This is one of 96 references found.}

There is NO QUESTION about the validity of the PROPERLY RATIFIED 10th Amendment.

Honestly, the concept of preserving or granting rights is probably more of a mental exercise in philosophy than it is a practical debate. We all know the "Golden Rule." So, it probably does little to argue along those lines. For example, what about women's suffrage? That was obviously denied for a long time. Does it mean that they were granted the right? Or does it mean it was always a right the government refused to recognize for a long, long time? "Preservation vs. granting," IMO, is just a matter of semantics.

Ok. To be clear, then, your view is that freedom of speech is not a privilege of U.S. citizens?

Do you likewise believe that the right to bear arms is not a privilege of U.S. citizens?

What about women's suffrage?

I'm obviously trying to figure out how you distinguish a right from a privilege.

This is a very important issue that crops up in the courts regularly. Is it your view that privileges are defined in the ether or were somehow fixed in their concepts back in 1781? Once we know what privileges are, there can never be any more privileges? Anything that comes up after that is a right, and if it's not a right, whatever it is.... it sure isn't a privilege?

I don't use the above language to be sarcastic. I honestly see that this is the crux of the debate. I have long struggled with the concept. Frankly, I can't distinguish, conceptually, a right from a privilege - even if the courts can.