by Rick Montes
There seems to be a bit of confusion of what it means to be a Constitutionalist or supporter of the Tenth Amendment (Both go hand in hand) and a Conservative. Let me explain my definition of both.
A Constitutionalist and Tenth Amendment supporter believe that the U.S. Constitution is arguably the greatest political document man could devise. Sure, the Articles of Confederation were also a great document, in fact the Convention delegates that gave us the current Constitution were technically meeting only to revise the Articles. With that said, we support the United States Constitution wholeheartedly and want those elected to Federal office to abide by it. Unfortunately, they stopped many, many years ago.
What does supporting the Constitution mean? Many people who call themselves “Conservative” have rebuked us for betraying conservative principles ie… Gun Rights, Abortion, Homosexual Marriage, Drugs and prayer in school to name a few.
If you are a federal office holder and “Conservative”, you should always defend the Second Amendment, look to overturn Roe v. Wade, vote for the Marriage Amendment and absolutely be in favor of the War on Drugs. This is what a Conservative is conserving, right?
What if I told you that the Federal government has no business what-so-ever getting involved in these issues? That the Bill of Rights is intended as a limitation on the power of the FEDERAL government ONLY, not the states, and that any federally elected person, conservative or not, that votes in favor of laws that interfere with these things is breaking their oath to support and defend the U.S. Constitution.
What would you say?
The Founding Fathers debated this issue quite thoroughly. There were many in attendance who wished to have us become a consolidated, national government. James Madison repeatedly tried to grant the federal government the power to negate all state laws. He was soundly defeated each time.
In the end we were given a Federal Republic that was made up of individual sovereign states. These states delegated limited and enumerated powers to the federal government. To be certain that there was no mistake, they had the Tenth Amendment added: “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.”
Couldn’t be much clearer – if it’s not in the Constitution, it’s left for the states or the people to decide.
Yet today, so called conservatives want the federal government involved in myriads of everyday-life activities. Take the Second Amendment for example. I am an avid gun collector and shooter. You will be hard pressed to find anyone more “Pro-Gun” than me. I believe that the Federal government has no right to tell me if I can own a firearm or not. They have no right to dictate to my state or it’s citizens (unfortunately, they don’t need too) on whether or not I can own a machine gun, suppressor, high capacity magazine, bayonet or any other accessories. They have no right to tell me I can’t purchase a firearm from one state and have it shipped to mine without a federal license.
However, the Supreme Court and the Federal government also have no right to tell my state that they MUSTÂ or must not allow concealed handguns or any other weapon. You see, the federal government must stay out of things that don’t concern them. The Second Amendment remember, is part of the Bill of Rights, which in turn limits the FEDERAL government ONLY.
Just imagine if all these rules and regulations were left where they belong, in the states. Granted, you may not like your states rules and regulations, here in the Peoples Republic of New York, they are horrendous. We are one of the greatest welfare states in the union. However, I would much rather fight local politicians to have these laws overturned than have to fight against a politician from California or Massachusetts.
If you allow these laws in your state and don’t fight to repeal them, shame on you. You could always move to a pro-freedom state.
The same with Marriage. If the people of your state want to allow Homosexual marriages, which I am against on moral grounds, so be it. Either fight to repeal it or move. How dare the Federal government and Nancy Pelosi tell me and my neighbors that I have to have Homosexual marriage or not.
Abortion? Same thing, I am against it, however, if you are not willing to effect change in your own state, how dare you tell others how to run their lives. Prayer in school? If my neighborhood school wants to say a prayer each morning to thank God, who is some atheist in New Jersey to say we cannot?
How dare anyone expect the federal government to act like a bully and force change in your neighborhood whether you want it or not. The Supreme Court? They once decided that African Americans were property! Yeah, I’ll trust their decisions.
The lesson here is simple. The federal government was delegated certain enumerated powers from the people of the several states. Everything else is left to those states to decide for themselves. Whether they want school prayer, the death penalty, abortions, medical marijuana or machine guns.
True “conservatives” should be fighting to conserve these principles. We are all on the same side. We agree on most issues and fighting amongst ourselves only allows the Frankenstein Monster we call the federal government to run ram shod over our individual freedoms.
As Benjamin Franklin was reported to have said, “If we don’t hang together, most assuredly we will all hang separately.”
Rick Montes [send him email] is the state chapter co-coordinator of the New York Tenth Amendment Center
A Tyrant in the state of New York would find themselves in authority over no one. There would be 49 other states that would welcome the good people of NY with open arms. The protections in the constitution do bind states to free speech, gun ownership, the right to assemble, and all other enumerated powers etc… So for tyranny to exist in a state with the government elected officials living so close to the people, highly unlikely.
The constitution is a miracle and we should treat it as such. It is not perfect but it has a mechanism to make changes. The problem is too many people don't read it or choose to ignore it. Both fatal to individual liberty…
Rich,
If I remember correctly, you are local to Colorado, yes?
Exactly! Thank you.
Here in Florida, there is tyranny at the state level. Local governments pass popular laws, and those in disagreement run to Tallahassee to meet with state leadership in closed-door sessions to get these laws overturned. (Money changes hands- there is proof of that, and only a chosen scapegoat is offered up occasionally for justice). Then the local laws are overturned by specific state legislation. The voters sign petitions to get laws put on the ballot, and the people pass them. Then the legislature refuses to implement what we, the people, approved. You can't win. Some people feel that they have to turn to the feds to protect themselves. I agree that the federal power should be limited considerably, but what do we do about tyranny within our state?
So, you're absolutely fine with tyrrany, as long as it's not Federal-level tyrrany.
Great. I gave the tenthers the benefit of the doubt, until I read this article. Thank you for proving me wrong.
So, you're absolutely fine with tyrrany, as long as it's not Federal-level tyrrany.
Great. I gave the tenthers the benefit of the doubt, until I read this article. Thank you for proving me wrong.
Well, if you don’t like the Constitution – don’t complain to US! That’s what the Founders created!
A lot of people don’t get it, though. the practical reason why, that is.
When you have a local tyrant, you still have a chance to fix things, or get away to another state. When you have a one-size-fits-all solution on everything, and you have bad leaders (like ALL of them in the US are), then everyone is screwed.
He didn't say he was fine with tyranny. He said that a literal application of the Constitution would allow enough local control over politics and government that people would have choices and the ability to move to another state to avoid having to live under what feels like oppression and tyranny.
On a micro-level, think of homeowner's associations. We all know that some HOA's are run by jerks and others are so laid back that the neighborhood standards aren't being enforced. Then, there are many in-betweens.
If you despise the way your HOA is run, you can easily move a mile down the road and find a new home in a new HOA, where you might feel you have a better fit.
Now, imagine EVERY HOA in the U.S. was run by jerks. There would be no choice and no escaping it. That's the difference.
And the 39th Congress changed that!
Mike,
What do you mean by non-Federal Level tyranny? I missed that idea it in the article… I think the author is speaking broadly about how decisions that should not be made by the Federal Government should be made at the local level. However, just from judging from your response(I may be wrong), is that what you would like overall would happen at the local level. I am basing that on the specific topics he brought up as most Americans still live by a set of principles, which are very similar. In summation, in once sentence I think the author is saying: let those principles be decided at the local level and not be made for all of us.
Doesn't everyone realize that each state has a constitution, too?
yes, they generally do….and they miss out on the important state-level rules that are supposed to protect liberty.
By the way, I heard your interview on FTL….
To Mike — it's not about trading one tyrant for another. It's about organizing and telling the feds to stay within the confines of the constitution, then at the local level regaining the "Republic" form of government instead of the "Democracy" BS bing shoved down our throat. If you cannot get your state government to "get in line", what chance do you have of reforming the federal government? I believe getting the state governments in line with the constitution is our last hope…
Whether you think of yourself as a 'conservative' or a 'liberal' or something in-between, you should be a Constitutionalist if you believe in liberty and the rule of law over the rule of man. Our written constitution is the best hope we have for liberty.
This article concentrated on conservative issues because the author is generally conservative. It could just as easily have taken these same issues from a 'liberal' perspective and explained that the Constitution forbids the federal government from getting involved. In either case, the author should be pleased with that conclusion since s/he will have more input and control at the local level.
The fundamental point for me is that the US Constitution has been wildly perverted and turned on its head to condone a HUGE, intrusive, central government. The US Constitution has become a weapon used against our liberty rather than a limitation on federal government and a shield to protect our liberty. It's so sad!
The first step for EVERY ISSUE should be: Does the federal government have ANY power here under the enumerated powers? If not, it's left to the states and the people therein to decide. That's it. It could not be easier if you don't start with the result you want. Take abortion. It's not listed in the enumerated powers so it's left to the States. Same for health care. But, NOT for bankruptcy because it's listed. It's that easy for many issues.
An article like this would be more useful if it had been co-written by a self-identified 'conservative' and a self-identified 'liberal' so everyone can see that the 10th amendment is about LIBERTY and that issue joins all of us.
I agree and am one of the ones who likes to contribute as if I am sometimes the self-proclaimed liberal. The general interest in this movement teams so heavily with conservatives, it sometimes seems hardly necessary to consider our audiences might contain any meaningful numbers of liberals. The idea is to share the other side, provoke some thinking, and maybe it will lead to a more "liberal welcome" environment.
Not that is technically not welcome to liberals, but "progressivism" and "liberal" are quite often not terms of endearment in articles submitted, but instead are terms to derogate. I wish, as a whole, the movement transcended these types of labels.
Yes, people who favor big government (whatever name they call themselves) do NOT believe in the ideals underlying the US Constitution. That's a HUGE problem. All who love liberty should be welcome here.
It's sad that so many people are so willing to associate with the R's or the D's because of this or that issue and so few are interested in just following the US Constitution regardless of any one issue. Without that sentiment, we are no longer a nation of laws and that would seem to be a concern to ALL Americans who love liberty. Too many people just want someone else to take care of them and they don't want the responsibility that comes with liberty, I guess…
In theory, your opinions or my opinions about abortion, national health care, gun rights, drugs, war, fiscal policy, etc. do NOT matter. What matters, if we are to be a nation of laws, is what the US Constitution and state constitutions say about those issues.
You almost never hear federal politicians (except for Ron Paul and a few others) debate an issue from the view that the US Constitution controls regardless of how we personally feel about it.
I've NEVER heard state politicians in my state debate the meaning of any part of our state constitution. I'd be willing to bet that most have never even read it!
The only place I see debates about what the US Constitution means is RIGHT HERE! If the original scheme were followed, we'd have debates mostly about our STATE constitutions.
Don't leave out the Supreme Court. The Citizens decision placed corporate rights on a par with those of individuals. The Founding Fathers would never, ever, have agreed with such a ruling. It greatly diminishes the power of the individual to influence their government.
The article seems to ignore the notion of natural rights, a principle that we know was espoused by the Founding Fathers. If we buy-in to the notion that our right to free speech, due process, free exercise of religion, etc., are gifts from God and not government, shouldn't the U.S. Supreme Court have the right (and even the duty) to invalidate a state law that purports to suppress these rights?
You and your fellow STATE citizens should be left to decide which of your rights you all want to give up to your state government. The federal government is simply not involved in that issue. Read your state's constitution.
If a state law violates that state's constitution, the state supreme court should strike it down. If, however, the people of that state have drafted a constitution that expressly surrenders that right, then it should not.
This is why we could have 'liberal' states (maybe California, NY) that would restrict gun rights and 'conservative' states (maybe Montana, Idaho) that do not. If you are a gun advocate living in California, you could move to Montana.
So let's say the majority of state citizens vote to surrender certain of their natural rights to the state, while I am unwilling to do so. Basically, I become the victim of oppresion by the minority. Aren't natural rights, by definition, rights that no one (even the majority) can take away? And while I guess I could up and move to some other state that will recognize and preserve my natural rights, that's not a real practical option for everyone–especially those of limited means. Please understand, i'm not trying to be flippant here–I largely agree with your premise of state soveriegnty and VERY limited central gov't. Just having a hard time accepting the idea that any government (including those of the states) can trample our God-given rights in such a seemingly unrestrained manner.
You have extremely valid points and questions about rights- majority vs minority rule and the like.
BUT – while the founders wanted to preserve natural rights, they did NOT empower the federal government to be a saving force….the calvary swooping in…..to protect them.
Their belief was that the greatest THREAT to natural rights – to your liberty – IS the central government. Thus, they set up a system where that government would be limited to a very specific, small set of activities. Otherwise, they knew so well, it would use that power, distort it, and damage your rights.
Look all around you today – as we've fallen into the trap that D.C. is our protector in everything, our rights, our freedoms shrink more and more every year. The proof is in the pudding. The founders were right!
Appreciate the insight. Hard to disagree.
Hi, Mike
In your hypothetical, you wrote:
"[A] majority of state citizens vote to surrender certain of their natural rights to the state."
You then wrote:
" I become the victim of oppresion (sic) by the minority. "
Maybe I missed something but wouldn't you then be oppressed by the MAJORITY (not the
minority)?
No system is perfect and you can't expect to live in a world full of other people and not have to compromise on some issues. This is the system we have and it's the best system I've ever seen.
If an issue is important enough to you and you can't get it resolved to your liking, you CAN move to another state. That's better than the current de facto system where BIG government means you'll have to move a different COUNTRY!
Hi, Mike
In your hypothetical, you wrote:
"[A] majority of state citizens vote to surrender certain of their natural rights to the state."
You then wrote:
" I become the victim of oppresion (sic) by the minority. "
Maybe I missed something but wouldn't you then be oppressed by the MAJORITY (not the
minority)?
No system is perfect and you can't expect to live in a world full of other people and not have to compromise on some issues. This is the system we have and it's the best system I've ever seen.
If an issue is important enough to you and you can't get it resolved to your liking, you CAN move to another state. That's better than the current de facto system where BIG government means you'll have to move a different COUNTRY!
yes, MAJORITY. Was typing faster than brain was operating!
You have extremely valid points and questions about rights- majority vs minority rule and the like.
BUT – while the founders wanted to preserve natural rights, they did NOT empower the federal government to be a saving force….the calvary swooping in…..to protect them.
Their belief was that the greatest THREAT to natural rights – to your liberty – IS the central government. Thus, they set up a system where that government would be limited to a very specific, small set of activities. Otherwise, they knew so well, it would use that power, distort it, and damage your rights.
Look all around you today – as we've fallen into the trap that D.C. is our protector in everything, our rights, our freedoms shrink more and more every year. The proof is in the pudding. The founders were right!
Therein lies the conflict. You admit that due process is a natural right. What due process is to be followed when it comes to extending greater power to the federal government? That would be amendment by a super-majority. So, by suggesting the S Ct has the right and/or duty to invalidate state law actually conflicts with the natural right to due process.
You and your fellow STATE citizens should be left to decide which of your rights you all want to give up to your state government. The federal government is simply not involved in that issue. Read your state's constitution.
If a state law violates that state's constitution, the state supreme court should strike it down. If, however, the people of that state have drafted a constitution that expressly surrenders that right, then it should not.
This is why we could have 'liberal' states (maybe California, NY) that would restrict gun rights and 'conservative' states (maybe Montana, Idaho) that do not. If you are a gun advocate living in California, you could move to Montana.
You and your fellow STATE citizens should be left to decide which of your rights you all want to give up to your state government. The federal government is simply not involved in that issue. Read your state's constitution.
If a state law violates that state's constitution, the state supreme court should strike it down. If, however, the people of that state have drafted a constitution that expressly surrenders that right, then it should not.
This is why we could have 'liberal' states (maybe California, NY) that would restrict gun rights and 'conservative' states (maybe Montana, Idaho) that do not. If you are a gun advocate living in California, you could move to Montana.
Mike,
Read the 1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The only freedom granted by the 1st Amendment to the citizens of the United States is that Congress shall make no law regarding freedoms of religion, speech, press and assembly. What can be clearer; regulating these matters was left to the States.
Knowledge is power unless that knowledge is not of facts but of lies. It is the difference between freedom and bondage. Part of understanding why nullification is a perfectly acceptable approach is understanding real history and rejecting revisionism. Most people balk at nullification saying it is unconstitutional.
To me a Tenther is someone willing to go the distance to spread facts about what our founders intended, why we are not meeting those intentions, how we got here, and how the heck to get out. Education is key as it is one of the ways Statists propagate their myths. A good place to start is to communicate real history to others to put things in context and clearly indicate how we have been duped. There is nobody more angry than a duped person – I can attest to that from personal experience.
Through the Tenth Amendment Center and a number of books I have read I have learned many truths that I did not know before. I'll start with this one, one of the most shocking: Lincoln The Racist: What Your Teacher Never Told You Part I
Knowledge is power unless that knowledge is not of facts but of lies. It is the difference between freedom and bondage. Part of understanding why nullification is a perfectly acceptable approach is understanding real history and rejecting revisionism. Most people balk at nullification saying it is unconstitutional.
To me a Tenther is someone willing to go the distance to spread facts about what our founders intended, why we are not meeting those intentions, how we got here, and how the heck to get out. Education is key as it is one of the ways Statists propagate their myths. A good place to start is to communicate real history to others to put things in context and clearly indicate how we have been duped. There is nobody more angry than a duped person – I can attest to that from personal experience.
Through the Tenth Amendment Center and a number of books I have read I have learned many truths that I did not know before. I'll start with this one, one of the most shocking: Lincoln The Racist: What Your Teacher Never Told You Part I
Nullification is a valid principle. However, don't allow yourself to think of it as "the" solution. When it is appropriately used, it is justified. But what if it is inappropriately used? What if a state says a federal law is not authorized, even though it is, just because the state does not like that law? If we have wrongful nullification, this, too can be a nullity and of no force and effect. Let's not think states might not attempt to use nullification to try to obtain veto power over legitimate federal laws and policies they don't like.
I'm not particularly worried about that problem right now, given the extreme federal excess. However, it is always good to understand both sides of nullification in order to acknowledge its potential pitfalls, too.
Jeff,
Agreed. I write extensively that even in cases where it is valid I don't think we have the political will at the state level in our legislators. That is why I believe nullification must be preceded by a campaign of non-violent passive-aggressive civil disobedience along the lines of Gandhi and MLK. The scale must be massive and the message to the state leaders clear – we want this and we will back you all the way.
As Gandhi said – 40,000 British troops can't make 300 million Indians do what they will not do. We can say something similar – and I am not even talking nullification yet: 535 federal legislators, one President, 9 Supreme Court Justices, and the rest of the federal court system cannot make tens of millions of Americans do what they will not do. The challenge is to educate those tens of millions of people.
What literally stands between us and freedom from unconstitutional tyranny is millions of us waking up one day and saying no, that's it, we won't cooperate anymore. No guns are needed, no violence committed, just a whole lot of people saying, basically, go take a hike (I have stronger language in mind but I'll keep this G rated). I think it will be much easier to find our nullification footing after this. The trouble, as you point out, is that this new freedom will be quite intoxicating to many and there will be a tendency to overreach. That is why sites like this exist – the public must know what nullification is and is not to be used for.
I agree 100% with what you said.
Agreed! (hand-shake).
Interesting how the author never mentions how the 14th Amendment fundamentally changed federalism in this country.
Yes, it is interesting. I can't see how we got from equal protection of the laws and non-discrimination, all the way to "No Child Left Behind" and health insurance mandates.
I'd take "No Child Left Behind" over slavery any day.
To say it’s one or the other is not only absurd, but intellectually dishonest. Try again?
I was only responding to the equally absurd assertion that the 14th Amendment has led to the modern nanny-state. We could play this game all day. But the simple fact is that the 14th Amendment has promoted more liberty than the 10th Amendment ever will. You "Tenthers" can count the number of times the 10th has been invoked to preserve liberty on one hand: Virginia/Kentucky Resolutions, Personal Liberty laws, and Real ID "nullification". The extreme version of states' rights that you guys advocate on this site was tried for about 80 years, and failed miserably. That's why the Constitution was amended. The 14th Amendment has been used to secure free speech, school choice, privacy, property rights, and has secured the blessings of liberty for people across the country for years. And you guys are against that because the Founders wouldn't like it.
Wow, the dishonest '10th amendment = slavery' argument just won't go away! There is apparently no end to the number of people who will argue that the Civil War proves the people and the states can't be trusted, the Founders were morons and we should all trust in a great, monolithic, all-powerful, central government.
If that's the case, then we need to be open and honest about it and repeal the Constitution and reform the government.
Exactly. As I see their argument, they are implying that because the states historically can't be trusted on issues concerning slavery and discrimination, they can neither be trusted as to their decisions on what kind of insulation to use in their homes and the amount of water a shower-head should allow to pass per minute. These anti-10th arguments based on slavery and discrimination are antiquated. These so-called "progressives" really need to catch up with the times.
Slavery needs to be understood in its context or as it was practiced in all its diversity. In the beginning people came to America without money to pay their fare. Obligated them selves to slavery to pay for the fare. Working for a master furnishing room and board and in time the fair was paid and they went on or could obligate them selves to new terms if they liked the Master.
It was a form also to pay off debts one occurred in not handling their financial affairs properly.
Then there came the slaves of Africa. Where battles went on and they were taken in battle and sold to ship men. Who transported them to any country that needed workers. They worked for a time to be set free. The fare and initial cost of purchase often was requiring many years of service.
The world has still not rid themselves of Jacob's ordeal of the Master always changing the rules. Evil and devious men will always look for an advantage with an unfair deal on others. Including permanent slavery.
Yet then–it was individuals that seen the abuse and mistreatment and was helping and campaigning against such practice of slavery. This was changing long before Lincoln's war that had little to do with slavery and more about Federal Government ruling the roost. It was individuals with freedom that fought to change slavery and not the government that Lincoln is given credit for. Lies perpetuate not only ignorance, but slavery to tyrants.
I appreciate Rick Montes' and Michael Boldin's principled commitment to federalism. And I don't think it is as much of a concession to local "tyranny" as some commenters suggest it is.
First, the Constitution contains specific protections against state action (such as those in Article I, Section 10) which, if truly enforced, would make it hard for any state to become a full-blown "tyranny." Second, the Constitution also grants the federal government certain powers to intervene if states become too tyrannical — e.g., the Guarantee Clause and the Times, Places and Manner Clause. The Guarantee Clause in particular authorizes the federal government to replace any state government that it is not in some way elective.
So under those circumstances, states can establish big governments and do various other things conservatives, liberals, and libertarians don't like without becoming full-fledged tyrannies.
What of the bill of rights? There is a very respectable school of thought — it may even be a majority of 14th amendment scholars — that believes the Privileges or Immunities Clause of the 14th amendment applied the entire Bill of Rights to the states. I'm not sure they have proved their case yet, but if true that eliminates a powerful objection against federalism.
Yes, not to mention, the People have the exact same remedy available against a local government as they do a federal government. It is without a doubt clear that the threat of tyranny was always to be kept in check by the People. The whole concept of our government was to acknowledge that the People have an inalienable right to overthrow or change their government when it no longer suits them. I am no more afraid of tyranny in the state government as I am of the same within the federal government.
It is pointless to run around in fear that returning power to local governments would result in local tyranny. The whole purpose is to permit diversity – nothing more, nothing less. To the extent local governments become oppressive, the people can always vote at the polls, vote with their feet, or vote with their guns.
So, why does anyone think we need to run away from diversity in order to avoid tyranny? It simply makes no sense.
It is time to stop these feds before they completely remove our republic from those inalienable freedoms of our peoples consent, which can by only sovereign instructions form those natural rights of self governance,
Our states must justly nullify those federal laws which usurp our governments individual authorities which reside within our peoples sovereign states, these political liberties must no longer be abducted, as if we the people of these states were to be collectively reformed, all rights of self deference absolved.
I am very confused about the author's interpretation of the second amendment since he states that States have the right to choose whether or not there are certain restrictions on guns. The second amendment is one of the few areas of the constitution where the founders made it clear that it is the right of people to own guns, and that no government, State or Federal, has the ability to impede. I agree with all the other statements that the Federal government does not have the ability or right to make laws and regulations on issues such asaborition, marriage, drugs, etc, but you are off on guns and the second amendment as far as I am concerned.
It’s a common misnomer. The founders were quite clear that the bill of rights, as a whole, applied to the federal government, not the states. Each state constitution addresses issues such as this. We find this view to be the most common mistake among average Americans.
Not sure where they learned it, but it doesn’t really appear in textbooks that way….just one of those things?
Is it true that any law the United Nations makes about gun control have no affect to American citizens?
As long as you do not allow it to. Otherwise, they will certainly try.
So, what do you think the purpose of having the second amendment is? I am trying to figure out what you guys believe the intent of having the second amendment is if the tenth gives states the right to decide whether or not citizens have the right to "bear arms".
The founders believed in the RTKBA. But, they viewed the greatest threat to that right (and all rights) to be from a vast general government. That’s why they created a constitution, and a bill of rights – as limitations on the power of that federal government.
They also believed that the best place to deal with concerns about gun rights, privacy, free speech and the rest – were directly in state governments and state constitutions. That way, if something went haywire, for lack of a better word, it would only negatively affect one small area, and not the whole country.
I believe they were right. All around us we can see the negative effects of centralization of power….
Well, that’s the short of it. You can get a LOT more info on this line of thought – and why it’s better in practice for the cause of liberty – from the following links:
http://www.tenthamendmentcenter.com/2010/03/05/gunning-down-the-constitution/
http://www.tenthamendmentcenter.com/2009/11/24/kevin-gutzman-freedom-vs-the-courts/
http://www.tenthamendmentcenter.com/2009/06/15/the-2nd-amendment-and-the-states/
Liberty Mike: While I sympathize with your views, the author is right that the Bill of Rights did not originally apply to the states. That's the view the Supreme Court took in the early 1800's, and it's the view that most Americans held leading up to the Civil War. While there was a radical abolitionist strain of thought that believed the Bill of Rights did in fact limit the states, that was well outside of mainstream legal thought at the time. But what the author fails to mention is that after the Civil War, Congress decided to amend the Constitution to remedy this fact. The Congress that wrote the 14th Amendment wanted to, among other things, overturn the Supreme Court precedent that said that the Bill of Rights did not apply to the states.
However, what happened after the 14th Amendment was ratified is another story. First total application of the Bill of Rights was rejected by the Supreme Court, then over the years various "fundamental" provisions in the Bill of Rights were applied to the states. But that's not really the issue here. The authors on this site, while very passionate about history and the Constitution, fail to bring the 14th Amendment up time and time again.
So to answer your question: The Bill of Rights was originally only applied to the Federal Government because the Framers thought that the feds were necessarily more dangerous to our rights than the states, which were closer to the people. This idea was tried and failed. Congress and the States amended the Constitution to fix this, and the issue is still being debated today. But the majority of legal scholars, left and right, acknowledge that the 14th Amendment was meant to apply the Bill of Rights to the states.
I will add that these scholars agree with the incorporation doctrine because the US SCt decreed it was the law. If you are going to teach law, you have to teach what the SCt says is the law. Law school trains students to go into court and make wining arguments. You will not find yourself taken seriously if you are in court and say, "Everyone knows the incorporation doctrine is a legal fiction and is wrong." That and a dollar will get you nowhere. That's why it is "accepted."
The SCt is also that same office that said "separate but equal" is the law of the land. So much for legal doctrine from "on high."
I do not suggest the SCt has evil motive, but I do suggest it is fallible, to say the least. Same goes for the scholars.
While some might view what the Supreme Court says as gospel, I was making a point that most scholars think that Slaughterhouse was wrongly decided, and that the Privileges or Immunities Clause was intended and understood by the public to secure at least the rights in the first eight Amendments against state infringement. Whether the modern incorporation doctrine is simply a fix for the atrocious ruling in Slaughterhouse, a legal fiction, or actually correct can and will be debated. But unless you look at what the 39th Congress said about the 14th Amendment and what other scholars have said, you're basing your views of incorporation on your own beliefs of the way things ought to be. Check out Curtis, Barnett, or Amar for a different viewpoint from Gutzman or Woods. It might be enlightening.
It's tough sifting through links to search for material you suggested. I will be happy to take your advice and read some. Have any links?
http://volokh.com/2010/03/01/chief-justice-taney-on-the-privileges-or-immunities-of-citizens-of-the-united-states/
http://papers.ssrn.com/sol3/papers.cfm?abstract_i… (A long read but good)
Michael Kent Curtis' No State Shall Abridge
You could also check out the briefs in the McDonald case at:http://www.chicagoguncase.com/case-filings/#Supre…
Cato Amicus brief is really good and so is the Constitutional Accountability Center brief, which was signed by Curtis and Barnett and heavily cites Amar.
Thanks, Alan. Good sources.
Upon brief review, I find the issue much like that of the controversy surrounding the issue as to whether the SCt is vested with authority to declare all things Constitutional or Unconstitutional, when confronted squarely with the "… and laws made in pursuance thereto shall be the Supreme law of the land" phrase.
On the issue of the Supremacy Clause, there came a point when there would never be a satisfactory answer to this obvious problem (nobody was willing to cede ultimate authority at either the federal or state level) and so the people had to either ratify, or not. The question was left open. And now we have arguments pro and con the SCt's ambit of authority. I happen to find the "con" side of the argument more persuasive.
Now, getting back to privileges and immunities under the 14th….. The sources indicate this topic was being argued – just like the "in pursuance" phrase I mentioned above. But what was most notably NOT enacted was a simple and VERY EASY way to end the debate once and for all. Where is the clause that says, "Amendments 1 – 8 shall be binding on the states as limitations on their authority?"
I mean, heck, we know FOR A FACT, the debate was being engaged to bring into question exactly what things were being included in privileges and immunities. We also know, as one opponent argued, that every law that exists in some way relates to privileges and immunities. Heck, if it is a privilege of mine to vote, to marry and to enter contracts, then, I suppose the federal government is behind the 8-ball in drafting uniform laws on incest, voting procedure in city and state elections, voter disqualifications, laws on the age of majority and dementia (to preserve rights to enter contracts), and anything else you could possibly imagine.
The fact appears to me that these issues were aptly raised on all sides (not just from 2 perspectives) at the time of adoption. The 14th passed. If it was so CLEAR that everybody agreed it incorporated Amendments 1-8, then, why did they not make that clear in order to spare us 150 years of misery trying to figure out what they meant? All they had to do is include a simple statement that said, "Amendments 1 – 8 apply against the states." Then, done!
So, no, I don't buy into the doctrine of incorporation.
That is not to say there are not some good reasons to have uniform standards with regard to some very important topics concerning national importance. But, alas, I do not subscribe to incorporation because nobody has been able to present a reason why the Constitution means the states should not be able to set standards of their own in regards to the capacity to enter contracts, to vote, etc. – provided the standards are applied equally within the state.
Oh, BTW. My recollection, too, is that the many opinions discussing incorporation and acknowledging it is "the law" had a tendency to always talk about "fundamental" rights and due process. Notice, how they retreat from "all" rights and due process? It is basically an admission, implicitly, that they only have adopted a theory of "partial" incorporation. So, where did they pull that from? Thin air, of course.
Thank you for the substantive response. There are definitely many clauses whose vagueness has cause controversy. It looks like those debates will continue for some time. But I do believe that the P or I Clause is fairly clear. I believe that the reason that they never said that "Amendment 1-8 apply to the states" was because the term "Privileges or Immunities" meant more than the Bill of Rights. As I understand it, the P or I wasn't supposed to mechanically apply the Amendments to the states, but rather secure a broad range of rights against state abridgment, which included the Bill of Rights. Along with these rights specifically enumerated, the Clause would protect unenumerated rights. These would include natural rights that pre-existed the Constitution. Rights "which are in their nature fundamental, and which belong of right to all persons in a free government."
So privileges and immunities meant both less and more than the Bill of Rights. There were federalism provisions in the Bill of Rights such as the 10th Amendment that resisted incorporation. So the 10th was obviously not included. But included were those rights that were outside of the Bill of Rights. In fact the Slaughterhouse case didn't actually address the Bill of Rights issue, per se. The case was about whether or not a state-granted monopoly on slaughterhouses violated the right of butchers to practice their trade.
So i think reason for not including the phrase "Amendments 1 – 8 apply against the states" is that the framers of the 14th Amendment were trying to do more that just secure the personal rights specifically enumerated in the Bill of Rights. They were looking to secure a broad array of rights against state governments.
Right. There is logic to this point, but reality dictates it will be unworkable. Notice how I said the SCt adopted the jargon "fundamental" rights? Even you agree, under the pro-incorporation reasoning, that this would include number of "unmentioned" rights.
So, now what we have, under that reasoning, is a standard that the SCt wants to decree as follows: "You can't deny anything we think is fundamental." What the heck is "fundamental?" Its limit is as great as the imagination. So much for limited federal government, right?
Like I said, why then is DC so behind the 8-ball? It needs to set procedures for the age of majority on all matters. It needs to set uniform rules regarding competency to enter contracts. It needs to have a single standard for fraud and misrepresentation. It needs a single rule for how many people are to compose a jury.
The whole thing is boundless.
Well I had a response. But it's been deleted. Maybe it can be un-deleted?
I feel compelled to jump in after reading this interesting debate and side with Mr. Matthews who, IMHO, clearly has the better of this argument.
Alan's argument that P or I is broader AND narrower than Amendments 1-8 is so vague as to be unconstitutional in itself. How can anyone, as Mr. Matthews points out, EVER know whether a right is covered until the oracles on the highest bench declare it so?
The P or I was originally used in the Articles of Confederation and carried over into the Constitution and is designed to protect citizens of one state from unfair treatment in another state. That's a far cry from Alan's use of it here and if it were intended to fundamentally alter the balance of power from states to the feds, surely a far far better term than P or I would have been used for that expansive purpose.
The simple fact is that the 13th and 14th amendments were passed in response to slavery and dealt with that issue. Reading it Alan's way means that the feds are the arbiters of virtually EVERY provision in EVERY state constitution.
As Mr. Matthews says, that is completely unworkable; it sounds far too much like the broad readings of the Commerce Clause I see far too often.
I believe I said that the P or I are both more and less than the Bill of Rights, not Amendments 1-8. In any case that's not my phrase; it's been used to describe the P or I by Prof. Amar and others.
Also the Clause that protects temporary visitors from discrimination by the state they are visiting is the Privileges AND Immunities Clause in Article IV. I'm talking about the 14th Amendment's Privileges or Immunities Clause.
But if the rights covered by P or I are those that are "deeply rooted in the nation's history and traditions" like the Petitioners in McDonald have argued, then you would avoid all the positive welfare rights that you're worried about.
I had a reply, but the spam-eater killed it. Maybe Michael can restore it.
What if we created a new simulated United States online, based on the original constitution "debate each amendment after enough citizens join". Maybe have an interface similar to the Sims game or something, where the players would be a citizen of the state they actually reside in and vote accordingly. Let the Tenth Amendment Center decide if each law we propose is constitutional or not. Then like the Matrix we could soon see if it would be better to be unplugged or not. This could be a great way to study, debate & teach the constitution.. Any thoughts?
Great Idea. Truly great. I say we use your idea. Only we alter the constitution al together. I do believe in "A" constitution. I just don't like "OUR" constitution. I don't like the "living, breathing" nonsense. But at the same time, society has changed is so many huge ways since 1770's that a new constitution would be be so much more relevant. A new constitution could also be more overt and specific on things so as to avoid the misappropriation of Glory currently granted to new pundits s and their endless pontificating.
I have endless ideas for a new nation. It would be great to discuss these ideas publicly.
-Curtis
Go for it…I'll play
Absolutely fabulous…I say let's do it. I am new to the thought of being a tenther, but I like what I see so far. I am a Marine father of two who is also a technology teacher…let's get er done.
So the author disagrees with someone in another state telling him how to live his life, yet finds it perfectly acceptable to force his morals on others as long as it is within his state? The whole purpose of fighting to limit government is to maximize freedom, not transfer its intrusion from one government entity to another. I am not gay, but I atleast believe in the principals of freedom enough to know that I have no right telling someone else how to live their life, or worse yet trying to get the government, whether it is local, state, or federal, to do it.
He may not but by separating people into different political zones aka states you minimize the 'other people telling you how to live your life' effect. It does allow people living within a state to tell each other how to live but those that don't like it can escape into a different state where the laws are more to their liking. Most people who support state rights don't do it because they want the states to be as tyranical as the federal government but do it because that federalism is the best way to ensure our freedoms.
How can you hope to limit your state government from its own intrusions, if you must first depend on having the permission of others, who seem to enjoy this act of preventing you, for their own reasons.
I'm not sure you are completely right about the Bill of Rights only restricting the FEDERAL government. The Founders were well known for considering their words carefully. Observe that the First Amendment says that "CONGRESS shall make no law…." (my emphasis). But the Second Amendment simply says "…shall not be infringed." The First, in other words, restricts Congress by name, while the Second seems to apply to government at all levels. Had the Founders wished the Second Amendment to restrict only the federal government, they would have written something on the order of "CONGRESS shall make no law infringing the right of the people to keep and bear arms."
Interesting blog post!
Have you a) read the preamble to the BofR – which makes it clear that the amendments were a consideration of states – restricting the power of the new general government, and b) considered the possibility that the 1st restricts CONGRESS because they didn’t want to restrict the executive?
Wow, that is very true. I never noticed that before and it makes perfect sense. I studied parts of the constitution for a criminal litigation class taught by a judge and he remarked about several amendments stating that the states had to follow the US consititution to a minimum requirement.
The people of the states had their own Constitutions and their own amendment procedures.
If those state legislators who had ratified these first ten amendments were indeed acting upon some simultaneous and dual authority which could have also potentially amended their own state Constitutions.
Then at what point in our history did the people of our states regaine their authority over state constitutions?
The tenther movement claims everything from Medicare to Social Security to the GI Bill to the highway system is unconstitutional.
Actually the highway system IS constitutional – the congress is authorized to create post roads in the constitution. (hint: these aren’t postal roads for the post office – but roads with mile markers as posts – what the founders would have known as our interstate highway system)
The tenther movement – if you read the article – would also argue that the federal government is not authorized to ban marijuana, or define marriage, or many other things that it does. Maybe you just don’t like the constitution? You might want to start arguing that.
I don't understand what you mean by roads with mile markers being post roads. Could you explain?
Ben Franklin came up with post roads. They were roads/routes that connected one city with another. This made it easy to travel from city to city. They had mile/road markers to tell you how far you were from the next city.
Remember our country was founded before even electricity, they could write but you had to physically deliver it. One of the rallying cries in the revolution you couldn't write a letter unless you were comfortable with King George himself reading your mail.
So a Post office system and Post roads are important. That could be one justification for the interstate. The one I usually go with is its for the military. The interstate originally was for military usage, to get troops and supplies quickly to a major US city. The fact that us normal people now use them regulary, could be incidental or could just be a positive outcome.
Tenthers are a bunch of lunatics!
whew! Thanks for clearing that up!!
No, You're mistaken.
Like Paul said,
The 1st Amendment specifically limits Congress.
The 2nd through 9th garantee people's rights free from any government.
The 14th may garantee citizens their rights from the 1st free from State as well.
Who's Constitution are you reading?
The founders. Sadly, most people don’t understand that.
There is no serious argument about the bill of rights applying to the states. That’s pretty much considered a joke as the constitution was originally ratified.
No founders ever advocated this as being the case. If you have anything to verify your thoughts other than your own view of it, please share.
The 14th amendment is where the confusion comes in. Since the 1920′s, the courts started ruling that the 14th amendment made the bill of rights applicable to the states. It was never even considered the case before then. that’s historical fact.
Slowly, under what’s known as “selective incorporation,” more and more of the bill of rights have been applied to the states – under the 14th amendment – not the original meaning of the Constitution.
Applying the Bill of Rights is the original meaning of the Constitution:The 14th Amendment of the Constitution. It was not the original meaning of the original constitution with the Bill of Rights, but it was the original meaning of the 14th Amendment, which is still a part of the Constitution.
That is a completely different discussion – an interesting debate that I have had many many times. I do not agree with your viewpoint, as I see it as injecting a personal opinion onto history – which isn't really good for constitutionalism.
But, my comments above were directed at the person who made the claim that the Bill of Right ALWAYS applied to the states – anyone with J.B. as a fake commenting name would surely know the absurdity of that statement.
Hi Michael
I am not sure at all as to whether or not your reference to a fake commenter on this blog was meant for me, however, whether this was or was not, I would like to know if, and what condemnations you may reserve as to someone using their legitimate initials might be.
I have been commenting on blogs since1995 and even had a blog of my own for a couple of years, proudly announcing my full name and address by the way.
I have come to notice just recently that some people are now rejecting this format, and to me this seems a little odd, but possibly explainable.
Could you elaborate if this is indeed your opinion of me or anyone who comments without placing their full name.
I have myself never had a problem with people using handles such as guest, ex- marine or American Patriot , excreta, excreta…
Maybe I have been wrong all this time, and if this is the case then please advise me as to why, and if you should convince me otherwise, I will start placing my full name on my comments, and if Michael, you would also like my address and my complete family history, which expands 13 American generations, I will be glad to send you this information, as well.
Can’t be to careful, Now can we? Lol
The Bill of Rights ALWAYS applied to the states, is a coment that only a novice historian would make.
Then you don't have a problem with the author. His whole point was the state governments and their people decide what they want in their borders not the federal government.
Hi Michael I can find no commenter on this form or on the replies that "claim that the Bill of Right ALWAYS applied to the states".
That’s the common misnomer we hear from people all the time. Generally when people say the 2nd applies to the states, they aren’t making a 14th amendment argument. In fact, that’s rare. Most of the time it’s from a belief that the founders intended it that way. There are plenty of comments on this thread that lean that direction – and some of those same commenters have left comments on other threads with those kinds of discussions in more detail.
Check out the new video based on this article on the Tenth Amendment Center’s YouTube channel. Pretty cool!
I agree w/ George and Paul about the second amendment…
The first amendment says, "congress shall make no law…", thus limited to the federal government (and possibly incorporated to the states by the 14th amendment).
The second amendment says, "the right of the people to keep and bear Arms, shall not be infringed.".
It seems pretty clear to me that when the states ratified the bill of rights, they agreed that, "the right of the people to keep and bear Arms, shall not be infringed". There are no words limiting that agreement to the federal government. It's not the federal government telling the states they can't regulate guns. They told themselves that when they agreed to the amendment. The text is not even ambiguous.
Steve, while a logical analysis, not correct. Using the first to understand the rest leads a lot of people astray.
The founders were all quite clear in many of their writings and debates that the entirety of the bill of rights applied solely to the federal government. There was simply no dispute on this amongst them. In fact, even after the 14th was passed, there was no dispute on this. There was little consideration that such a thing would ever be the case until the courts made it that way, starting around 1925.
As far as the first – many people make that argument – if the first only restricted Congress then the rest restricted all governments. Well, the actual explanation is so obvious that I missed it for a long time as well.
Congressional power was limited in these areas because the founders wanted to make sure, surprisingly enough, that the executive had some latitude in action. The first simply acted on congress and prevented it from making a law – it was not a message to say that the rest of the amendments – or the 2nd for example – applied to the states.
On top of it, if you read the preamble to the bill of rights in the proper context – it is quite obvious that the entire set of amendments was done to limit the federal government and its power further.
You said:
Here is the preamble to the Bill of Rights, which explains the purpose and goal of the entire thing – the states wanted include further…..restrictive clauses…on the new government (that is, the federal one)
An important part of that preamble is that some of the bill of rights are merely declarative statements.
This is essential in understanding the 2nd amendment, for example, when it says a well regulated militia, being necessary…
That part is the declarative statement, which has been twisted by gun control advocates as to somehow mean that only the militia can have guns – or, the national guard. Yet another way that hiding part of the constitution (the preamble to the BofR this time) can twist what it was intended to do.
Thanks Michael, I am sincerely puzzled. I am vaguely aware of some of the history you mention (although the Cato Instititute argues that the Slaughterhouse interpretation of the 14h amendment was inconsistent with its language and intent… I still need to read more about that.).
However, the amendment says what it says and the states agreed to it. Saying it doesn't apply to them is like saying that growing my own wheat on my own farm to feed my own hens is interstate commerce. It requires an abuse of language. You may as well not have a Constitution if it doesn't mean what it says. Out of curiosity, are there any pre-progressive era examples of states limiting the right to keep and bear arms?
You raise an important point that the amendments need to be viewed in the context of the preamble and the rest of the constitution. For any other readers, I found the full preamble here – http://www.billofrights.org/,
The fact that the purpose was to, "prevent abuse of its powers" and "extending the ground of public confidence in the [central] government" doesn't change the fact that that the states agreed that "the right to keep and bear arms shall not be infringed.". If the states institute laws to infringe the right to keep and bear arms, they are in violation of the plain language of their agreement.
As with your example of the well regulated militia bit, it seems to me that the preamble describes "why", but doesn't describe 'what". Even in the context of the preamble, the 'what" part still seems unambiguous to me.
The important part IS the preamble to the bill of rights, when defined under the language of the day (which needs to be done for any constitutional analysis), the preamble said, in modern language -
“We are concerned that some of the language of the new constitution will be misconstrued by the new federal government. so, we are adding this bill of rights to include some additional restrictions and declarations on the power of that new federal government.”
That is what it said, and that is what it did. The question I pose people on this is always the same – if you can find just one source from the founders that claimed the bill of rights applied to the states (or even just the 2nd amendment), it is worth discussing. I have yet to see one. In fact, I don’t believe there is a constitutional scholar in existence who would even make that claim.
The claim on the 2nd (or any other amendment) applying to the states does not come from the founding. It never did. It only comes from the 14th.
As far as your comments about the states agreeing to the bill of rights…. A simple act of a group of sovereign states agreeing to something regarding their agent does not mean automatically that they are creating new rules for their own action.
The preamble is the statement to start with. Understanding the reason the bill of rights were added makes reading that preamble quite easy.
This is where constitutional understanding requires a bit more than just pure logic – because your thoughts on this definitely ARE logical. But, when you put a 21st century analysis and definition on an 18th century legal document, you will often go astray.
I have yet to see any documentation from the founders themselves that say the bill of rights applied to the states upon approval. I doubt you will find any either – there just isn’t any scholarly debate on this issue.
One more!
Well – you are actually saying two opposite things.
IF it is correct that the new amendments were written to define and restrict the power of the new government THEN it is not possible that the states were agreeing to anything other than restricting the power of the federal government…
I’m sorry for another comment, this is an important topic, in my opinion!
As far as gun control laws in the early republic – yes, they existed – not in huge numbers like today, but they did.
1. There were actually gun restrictions in the states – mostly applied to black people – obviously a disgusting view – but most applied to even free black people. This was simply an extension of the power of the state to make its own determination of who could or could not carry a weapon.
2. Because the general police power to control or regulate gun ownership was part of state power, it was common for state constitutions to make gun ownership a protected right. Unnecessary if the 2nd amendment already did that.
3. The standard legal doctrine of the time was to prevent superfluous entries in a constitution – state or federal. For example, if the general welfare clause gave the feds the power to do anything it wanted in regards to the welfare of the people, it would have been superfluous to include the rest of Article I, Section 8 explaining what that clause meant – and that was commonly stated by the founders.
4. I generally dont like citing a government website, but this one actually gives a good overview:
http://www.loc.gov/law/help/second-amendment.php
3.
While I understand what you're saying, and I recognize that it has been consistently interpreted this way, I still don't agree that this is what it says or means… in the language of the time or modern language.
In support of your position, I understand that the issue at question in McDonald v. Chicago is exactly what you say… Does the 14th amendment incorporate the 2nd to the states. I don't think anyone on either side is saying that the 2nd amendment by itself does it.
But… In Heller v. District of Columbia, the court ruled, "…The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause…". I would argue that the impact of the preamble of the bill of rights is identical. It announces a purpose, but does not limit or expand the amendment.
The precedents listed on the web page you linked start in 1875, a somewhat long time after the founding…
Anyway, the problem with both precedent & constitutional scholars, is that both will also tell me that growing wheat on my own farm to feed my own hens is interstate commerce. In light of that flagrant assault on reason, I don't deem either source to be trustworthy.
If there is writing by the founders saying that the states are exempt from the bill of rights, that might be helpful to see (not saying there isn't, just that I haven't yet come across it.). Otherwise, common sense would dictate that the states are subject to the supreme law of the land. Especially since we also know from Article I, Section 10, that the Constitution is fully able to prohibit the states from doing things.
In short, it seems to me that in ratifying the 2nd amendment, the states guaranteed me that my right to keep and bear arms would not be infringed. They made no qualifications about who would not do the infringing. Looks like I'll need to add this to the long and growing list of things I need to read about. Thank you for the dialog.
Looks like I stand corrected. http://www.usconstitution.net/consttop_bor.html http://www.jmu.edu/madison/gpos225-madison2/madpr… http://www.jpfo.org/articles-assd/bor-battle.htm
Madison also proposed this amendment with the bill of rights,
"No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."
but it was rejected by the senate. If the other amendments had been understood to limit the states, there would have been no need for that one, since it would have been covered by the first and sixth. I can only conclude that Madison's understanding was that the other amendments applied only to the federal government.
Also, in 1835, Chief Justice Marshall wrote in Barron v. Baltimore. http://www.law.umkc.edu/faculty/projects/ftrials/…
"…These amendments demanded security against the apprehended encroachments of the General Government — not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them…."
I'm still leery of precedent, but in light of Madison's amendment, that one seems plausible.
Thanks again for the dialog. I don't like eating crow, but I do like learning, so it's not all bad
. On to Slaughterhouse and the 14th amendment.
That Madison proposal is a really good find!
As far as the 14th, I think that is the proper place for the discussion….both on a constitutional basis and which way is better, in a practical sense, for liberty.
If you want a detailed study of the purpose of the 14th Amendment, read Raoul Berger's Government by Judiciary, The Transformation of the Fourteenth Amendment.
It provides compelling evidence that the amendment was not intended to incorporate the Bill of Rights. It is an amazing book. You can get the 1977 version: http://oll.libertyfund.org/?option=com_staticxt&a…
Or buy a later version that has answers to some critics.
There's something about Article IV Section 2 that is missing the the argument that The Bill of Rights does not apply to states. The First Amendment was deemed early on not to apply as it states clearly in the text "Congress shall make no law…" The rest of them are not limitations on Congress and they are tied together with Article IV Section 2 which states: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The 14th Amendment addresses the process of that clause and was adopted to ensure that citizens, no matter who they were, would not be disarmed.
I just wanted to clarify my statement: "The rest of them are not limitations on Congress…" I should have stated that they are not limitations specifically on Congress. They are "Privileges and Immunities of Citizens in the several States."
If you want a detailed study of the purpose of the 14th Amendment, read Raoul Berger's Government by Judiciary, The Transformation of the Fourteenth Amendment.
It provides compelling evidence that the amendment was not intended to incorporate the Bill of Rights. It is an amazing book. You can get the 1977 version: http://oll.libertyfund.org/?option=com_staticxt&a…
Or buy a later version that has answers to some critics.
Constitutionalist and Tenth Amendment supporters believe that the U.S. Constitution is probably the tallest man political document could imagine. Of course, Articles Confederation was also a great document actual convention delegates, who gave us the current constitution was the technical meeting to review the articles. That said, we support the U.S. Constitution and sincerely hope those elected to federal office to observe. Unfortunately, they stopped many years ago.
I think we all need to understand the context in which the constitution was written. The intent was to correct the problem of interstate commerce: States were setting up their own import tariffs which slowed the flow of goods between states igniting a tariff war. The commerce clause solved the main problem of the articles. The Bill of Rights solved other points of concern. The tenth amendment seems like a reassurance (in an oblique way) to the southern states that slavery could continue.
With that in mind, we need to understand that the constitution is not holy writ, is not an ingenious document written by savants, and most certainly is not the best constitution out there today. It has been amended time and again, does not speak to the modern world, is intentionally vague in many areas, and is really showing its age.
The Swiss confederation rewrote its constitution in 1989. It is a document that speaks to today's problems while preserving the confederation. We could learn much from the Swiss.
It's time to stop venerating our constitution as if it is a holy relic. We should convene a constitutional convention and rewrite the rule book.
because it is old it is bad? So, by that logic, are laws against murder also bad?
Old doesn't have to be bad. But the constitution doesn't speak to the modern world and its problems, that's why its bad.
You confuse morality (murder) with law (an ethic). Morality concerns right and wrong. An ethic concerns rules. Something can be morally wrong (murder) and unethical (not permitted). Something can be wrong (murder) but have different ethics (murder, manslaughter, ect).
The Constitution is an ethical (rules of behavior) document. It was written more than 200 years ago. It is out of date and needs to be re-written.
you might want to get a better understanding of the necessary and proper clause before you talk about being vague – yours is a common error by people who do not understand how the constitution works.
It's vague. Even if you don't agree.
You sound like a northern liberal progressive! I have been pushing the same points made in the article since the early 80's. Stevo what you are saying is actually what has been done to us since lincoln, idiots reinterpreting the CONSTITUTION!
CSBubba:
Yes, I am a northern progressive (it's redundant to say liberal-progressive). By "us" I take it you mean the southern states that lost the Civil War.
Interpretation of the Constitution is not something President Lincoln invented or was put into place after the Civil War. It started with Justice Marshall and that was because the Constitution is vague and begs interpretation.
http://www.TENTHERS.com
As long as we're repealing all the other amendments . . . . let's repeal the 10th as well. That will make this stupid web-site unnecessary as well
Jim, why is this web-site stupid? Could you elaborate?
Because of rantings like this:
" I believe that the Federal government has no right to tell me if I can own a firearm or not. They have no right to dictate to my state or it’s citizens (unfortunately, they don’t need too) on whether or not I can own a machine gun, suppressor, high capacity magazine, bayonet or any other accessories. They have no right to tell me I can’t purchase a firearm from one state and have it shipped to mine without a federal license."
Excuse me while I pop out to buy my personal protection nuclear Arms which I shouldn't by rights need a federal license for.
And this example is but just one of many (most?) on this site.
Jim,
Its very unfortunate that you feel the need to mock this website. However, its understandable. Not too many people comprehend the true intent of our form of government. If you only took the time to learn the history behind our great Constitution and the freedom it offers through idea's like "States Rights" it just may be possible that your eyes would be opened. However, I get the feeling that you like the control government has over your life. In that case:
"If ye love wealth better than liberty, the tranquility of servitude than the animated contest of freedom, go from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!” Samuel Adams
>>Couldn’t be much clearer – if it’s not in the Constitution, it’s left for the states or the people to decide.
Exactly. But don't forget Article 1, Section 8: "18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,"
And don't forget the final clause of the Tenth Amendment:
"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.
The people can exercise that power reserved to them through their votes and thus through elected officials.
http://rjw-progressive.blogspot.com/2010/10/art-1…
well, no…..that is a bit of a distortion. The people are the top of the food chain, but not how you explain it.
Regardless of the will of the people, elected officials cannot violate the Constitution. Example, if the people of the all the several states vote for all representatives that want to establish a national religion, those representatives cannot while supporting their oath, in Congress, pass a bill (with executive signature) establishing a religion. They are bound to support and defend the Constitution, not subvert it. The only way to establish a religion for the republic is to pass an Amendment via Article V process. Congress does not get to vote on the Amendment, the ratifiers in the states will pass or reject it.
Hah, quite a controversial topic.
I love the book cover on "who killed the constitution" by the way!
If you want a detailed study of the purpose of the 14th Amendment, read Raoul Berger's Government by Judiciary, The Transformation of the Fourteenth Amendment.
It provides compelling evidence that the amendment was not intended to incorporate the Bill of Rights. It is an amazing book. You can get the 1977 version:
http://oll.libertyfund.org/?option=com_staticxt&a…
Or buy a later version that has answers to some critics.
"What if I told you that the Federal government has no business what-so-ever getting involved in these issues?"
I'd say that's you're contradicting yourself. Since the federal government also claims to be the NATIONAL government– and a national government can do anything it please, by law.
Of course, in reality each STATE is a sovereign nation by law, and can OVERRULE the federal government; but you're wholly SILENT on this, and therefore, you are CONSENTING to the federal government's claim of national authority over the states– including its use of deadly force to enforce its dictates over the states, ever since 1861.
You may disagree with its decisions, but that's a personal opinion– not a legal one; for the final rule is 100% discretionary with the national government.
So the choice is clear: either you claim that the states are each sovereign nations unto themselves, or you're contradicting yourself regarding your argument regarding the federal government's business.