States Rights vs Bill of Rights

[ilbob]

I would argue that because the institution of slavery is inherently evil and that one man has no "property right" in the involuntary labor of another man, there was never any property to be compensated. I don't see how writing a falsehood (black people are property) in the Constitution makes it any less false?

I would not argue that slavery was not evil. Only that it was constitutional at that time. What is legal and what is right is often very different.

 

[Nobody's_Hero]

The problem with the Supreme Court's Heller ruling is that it uses a language/wording which suggests that the Bill of Rights sets limitations for the people. The Bill of Rights tells the government what it cannot take from the people, and the Justices should know better than to think otherwise.

When I hear them use phrases like "the 'privilege' of carrying in public," it has the same effect on me as fingernails scratching on a chalk-board.

 

[Vibe]

The only reason slaves were even an issue in the War of Northern Aggression was because they were the source of the Souths "cheap labor" - and with all the tax and tariff monies going to industrialize the North - that left precious little for Southerners to live on. That became worse than taxation without representation and intolerable. The Slave trade was being abolished in the Confederate Constitution, so much of that issue is smoke screen.

 

[ilbob]

The Slave trade was being abolished in the Confederate Constitution so much of that issue is smoke screen.

I think these quotes from the CSA constitution will be of interest.

The importation of negroes of the African race from any foreign country other than the slaveholding States or territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or territory not belonging to, this Confederacy.

Started out good.

No Bill of Attainder or ex post facto Law, or law denying or impairing the right of property in negro slaves, shall be passed.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States, and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in such slaves shall not be impaired.

No slave or Person held to Service or Labour in any State or Territory of the Confederate Slates under the Laws thereof, escaping or unlawfully carried into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such slave belongs, or to whom such Service or Labour may be due.

The Confederate States may acquire new territory, and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States lying without the limits of the several States, and may permit them, at such times and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory the institution of negro slavery as it now exists in the Confederate States shall be recognized and protected by Congress and by the territorial government, and the inhabitants of the several Confederate States and territories shall have the right to take to such territory any slaves lawfully held by them in any of the States or Territories of the Confederate States.

<added>I would not deny that it is likely that slavery would have died out eventually in the south. It was starting to become uneconomical, and the more machines replaced human labor the more uneconomical it would be.

Its also true that there were a lot of reasons for the war, slavery being just one of them, but probably the most emotional one.

 

[zxcvbob]

I hold the position that the 2nd Amendment has always applied to the states, even without the 14th Amendment. (Now, if I could just get the Suprme Court to sign onto MY interpretation.)

I was beginning to think I was the only one who could read. The Second Amendment is by far the strongest worded of them all, for exactly the reasons you mentioned. I'll never figure out how the S.C. can [honestly] say "Congress shall make no law..." is binding on the states, and "...shall not be infringed." is not -- especially when combined with the Supremacy Clause.

 

[Bartholomew Roberts]

All right, I apologize for thread-jacking the issue into slavery; but let's get back to the 14th Amendment States Rights vs. Bill of Rights discussion.

 

[ilbob]

All right, I apologize for thread-jacking the issue into slavery; but let's get back to the 14th Amendment States Rights vs. Bill of Rights discussion.

the 14th amendment was almost entirely about slavery. It seems relevant to dicuss the issues surrounding it.

 

[gc70]

Hmmm, I was under the impression that a major reason for the war being fought was that slaves were not property; but actual human beings who had certain unalienable rights granted to them by their creator.

Lincoln provoked hostilities with the Confederacy, not to abolish slavery, but to "preserve the Union." It was not until more than two years after the start of the war that Lincoln issued the Emancipation Proclamation as an early example of "playing the race card" to influence European powers to economically isolate the Confederacy and weaken its war effort.

 

[ilbob]

Hmmm, I was under the impression that a major reason for the war being fought was that slaves were not property; but actual human beings who had certain unalienable rights granted to them by their creator.

Lincoln provoked hostilities with the Confederacy, not to abolish slavery, but to "preserve the Union." It was not until more than two years after the start of the war that Lincoln issued the Emancipation Proclamation as an early example of "playing the race card" to influence European powers to economically isolate the Confederacy and weaken its war effort.

Lincoln was always real clear that preserving the union was his primary goal.

There were a lot of reasons for the Emancipation Proclamation. Mostly it was an attempt to stir up revolt by the slaves in the areas not under union control. Thats why it only applied there. Would not want to stir up revolt in areas already pacified or that were never in revolt.

 

[Bartholomew Roberts]

the 14th amendment was almost entirely about slavery. It seems relevant to dicuss the issues surrounding it.

If it is relevant in examining the issue of applying the Bill of Rights to the states through the 14th Amendment then it would be relevant.

Discussing say - whether the emancipation of slaves is a taking under the 5th Amendment is not really relevant to that issue.

 

[ilbob]

the 14th amendment was almost entirely about slavery. It seems relevant to dicuss the issues surrounding it.

If it is relevant in examining the issue of applying the Bill of Rights to the states through the 14th Amendment then it would be relevant.

Discussing say - whether the emancipation of slaves is a taking under the 5th Amendment is not really relevant to that issue.

It is a little out there.

But I also think it is very hard to separate any of the enumerated rights out of the picture and be able to get a good view of the whole picture.

I wonder how history would have been different if instead of "emancipating" the slaves, the north had just bought them, by force if necessary, but paid a going rate for them. After the war the value of slaves was pretty low anyway, being as there was not much money available in the south to buy anything.

 

[El Tejon]

All right, I apologize for thread-jacking the issue into slavery; but let's get back to the 14th Amendment States Rights vs. Bill of Rights discussion.

Slavery and the 14th Amendment are inexplicable intertwined. I cannot see how one can talk about one without the other.

Any honest discuss of the 14th Amendment must mention why it exists, no?

 

[ilbob]

Any honest discuss of the 14th Amendment must mention why it exists, no?

I think there is great fear on the part of a moderator (or maybe more than one) that slavery is a politics discussion and thus not allowed. Most acknowledge it was an evil that needed to be excised, but the means by which it was excised left huge holes in the American psyche that still exist to some extent 140+ years later. So it is very emotional.

 

[El Tejon]

Slavery may have been a political discussion before the defeat of the South in 1865. However, it is now a historical discussion and the underlying motive for the 14th Amendment which started to clean up slavery's toxic waste.

 

[gc70]

Slavery and the 14th Amendment are inexplicable intertwined. I cannot see how one can talk about one without the other.

The motivations behind the passage of the 14th Amendment must be discussed to understand why the nation took the structure of government passed down from the Founders and effectively stood it on its head. In a single action, the federal government moved from being barred from meddling in issues involving civil rights to being the national arbiter and protector of civil rights. Such a profound change in the structure of government did not occur casually - there were monumentous and compelling issues that drove the change.

Whether the full array of issues that led to the passage of the 14th Amendment can be discussed with civility is a different question. Slavery, martial law, radical reconstruction, carpetbagging, and 'black codes' mistreatment of former slaves are all flashpoint topics that elicit strong emotional responses that often lack the decorum befitting this forum.

 

[Ergosphere]

My view is that the entire doctrine of incorporation is a disingenuous, egregious, and deliberate misinterpretation of the constitution.

The supremacy clause is not vague, and it directly states that the constitution binds the states. Of course, amendments are a part of the constitution by definition.

The language issue raised by Aguila Blanca has always troubled me as well. The courts usually look at such language very closely. This supports the idea that the Bill of Rights was originally intended to restrain the states as well as the federal government.

Of course, the Supreme Court ignored this in Barron v. Baltimore (1833) and ruled that the Bill of Rights does not apply to the states.

Fast forward to 1868: the 14th amendment was ratified. It was authored with the intent to remedy the error of Barron (with slavery being the chief issue). Again, the Supreme Court ignored this intent and gutted the 14th amendment, instead adopting the doctrine of selective incorporation...

 

[ConstitutionCowboy]

Fast forward to 1868: the 14th amendment was ratified. It was authored with the intent to remedy the error of Barron (with slavery being the chief issue). Again, the Supreme Court ignored this intent and gutted the 14th amendment, instead adopting the doctrine of selective incorporation...

I agree that the entire doctrine of incorporation is a disingenuous, egregious, and deliberate misinterpretation of the Constitution. It is as you stated. Looking at the Fourteenth, however, the power to "incorporate"(read: "enforce the provisions of...") is in the hands of Congress. Congress has been given power to enforce the provisions of the Fourteenth through Section 5 of that amendment, to wit:

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.​

We should be rattling the cages of those in Congress instead of berating or even waiting upon those on the Court. It ain't in the purview of the Court. It's Congress's.

Woody

 

[gc70]

Aguila Blanca
I hold the position that the 2nd Amendment has always applied to the states, even without the 14th Amendment. (Now, if I could just get the Suprme Court to sign onto MY interpretation.)

Here's my logic, for whatever it's worth: The gentlemen who penned the Constitution and the BOR were the educated men of the day. They knew law, they knew how to write, and they understood that words have meaning.

I believe the conclusion that the Bill of Rights "always applied to the states" comes from a too narrow reading of the individual Amendments. Before taking a broad view of the Bill of Rights, consider the concepts as originally presented to Congress by James Madison (Annals of Congress, June 8, 1789, page 451).

Madison presented the concepts as changes to the existing text of the Constitution rather than as addenda.
- "Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: (religion, speech, assembly, petition, RKBA, troop quartering, double jeopardy, self-incrimination, due process, bail, punishments, searches, and trial)." [Note that the clauses of Article 1, Section 9 all deal with limitations on the powers of Congress.]
- "Fifthy. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." [Note that the clauses of Article 1, Section 10 all deal with limitations on the powers of the States.]
- Madison offered two amendments (judicial appeals and trial by jury) to Article 3 dealing with the judiciary.
- Madision concluded with a final amendment equivalent to the 10th Amendment as a new Article to the Constitution.

By placing the changes within the existing framework of the Constitution, Madison made it clear that, with three exceptions, the proposed amendments limited only the power of the federal government. Ironically, two of the three exceptions that Madison proposed to also limit the powers of the States are enshrined in the First Amendment, which is so popularly (and incorrectly IMHO) believed to only limit Congress.

There is no record of the deliberations in the Senate that largely resulted in the changes finally adopted as the Bill of Rights. However, it is hard to believe that Madison would not have objected during the Congressional debates or in his later writings if the intent of his original proposals had been turned upside down before Congressional approval. The fact that Congress did eliminate Madison's three specific proposals to limit the powers of the States should also speak clearly to the intent of the Bill of Rights.

Back to the broad reading of the Bill of Rights... I believe that the 1st Amendment begins with "Congress shall make no law" because that was the prohibition understood to apply to the first eight amendments and, as such, it was not necessary to repeat it in each amendment.

 

[ProguninTN]

14th Amendment

Yes, of course, but the Lost Causers cannot ever concede this point. To admit that the Framers' motive was to extend the BoR to the States undercuts the authority of the Southern thugocracies to oppress Blacks.

You can say that again.

 

[Ergosphere]

Back to the broad reading of the Bill of Rights... I believe that the 1st Amendment begins with "Congress shall make no law" because that was the prohibition understood to apply to the first eight amendments and, as such, it was not necessary to repeat it in each amendment.

That's a radical interpretation of the text... assuming something which is not actually there. It's the same mistake that anti-gun people make when they read the preamble of the 2nd to be a restriction on the operative clause.

Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

We should be rattling the cages of those in Congress instead of berating or even waiting upon those on the Court. It ain't in the purview of the Court. It's Congress's.

I disagree. Part of the 14th amendment required legislation, e.g. the citizenship directives. Other amendments (such as the 19th) work the same way: they establish a directive (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.) and enforce it by legislation (Congress shall have power to enforce this article by appropriate legislation.).

But the application of the Bill of Rights to the states is primarily in the domain of the judiciary. Federal civil rights laws (42 USC 1983, 18 USC 242, 42 USC 14141 etc.) allow lawsuits and prosecution against local officials who abuse constitutional rights, but it is the judicial branch that determines what those rights are, and thus the judicial branch must hold that the Bill of Rights restrains the states.

ETA: Congress can't simply pass laws willy-nilly to limit state powers; that would violate the 10th amendment. Congress needs authority to exercise that power, such as that given in the 14th amendment. But it's still the courts which decide how that is applied, and it is the courts which have repeatedly failed to enforce the Bill of Rights against the states.

 

[hugh damright]

if the language in the 14th Amendment is meant only to mirror the limited interpretation given the "civil rights and immunities" in the Civil Rights Act - why did Senator Johnson attempt to strike that language when there was no objection from him to the Civil Rights Act?

I have not studied that issue, but I suspect it could be that he thought the phrase was open to various constructions.

By the way, here is a link to the 39th Session of Congress Historical Records You can find the actual bills and debates there in their entirety.

I noticed you didn't comment on the earlier link offering a lot more information indicating the 14th Amendment was intended to extend the Bill of Rights to the States, so you may not find these debates all that useful as well since the intent to extend the Bill of Rights to the states is repeatedly expressed in the records.

I didn't comment on Jon Rolands article because I had nothing nice to say about it. If you must know, I think it is extremely biased and full of selective quoting. And FYI, I have a book put out by the Virginia Commission on Constitutional Government which contains all the debates on the reconstruction amendments. It is a huge book with tiny print, and I have only read about 450 pages which I guess must be over 1000 pages of regular print ... so your comment that I might try reading the actual debates is improper, and your continuted assertion that the 14th was clearly intended to make the USBOR binding against the States is not supported by the debates you reference.

I recall reading in the congressional debates the pertinent question here ... if the civil rights act was law, then why was the 14th needed? And the answer was that it was needed to put the law beyond the hands of the people because the law was not wanted. Another answer was because the civil rights bill was unconstitutional. Maybe others saw the 14th as being needed because the civil rights bill didn't go far enough, because it only covered enumerated P&I, and they wanted to make the USBOR binding against the States ... but if there was such a view, in my studies it has been overshadowed by the two fundamental reasons for the 14th: (1) the civil rights bill was unconstitutional, and (2) the civil rights bill was unwanted.

House, May 8th - Stevens introducing debate on the 14th: "Some [say] that your Civil Rights Bill does the same thing. That is partly true, but ... it will be repealed ... this amendment once adopted cannot be annulled without two thirds of congress."

House, May 8th - Rep Garfield on the 14th: "Every gentleman knows [the civil rights bill] will cease to be a part of the law whenever the sad moment arrives when [the South regains its representation in Congress]. It is precisely for that reason that we propose [the 14th]."

House, May 8th - Rep Boyer on the 14th: "The first section embodies the principles of the civil rights bill ... it is objectionable also in its phraseology, being open to ambiguity and admitting of conflicting constructions."

House, May 8th - Rep Broomhall on the 14th: "The fact that all who will vote for [the 14th] ... voted for this proposition in another shape, in the civil rights bill ... shows that it will [pass] ... "It may be asked, why should we put a provision in the Constitution which is already contained [in the civil rights act]? [Mr. Bingham] says the act is unconstitutional ... I wish to make assurrance doubly sure ... and to prevent a mere majority from repealing the law"

House, May 29th - Rep Latham on the 14th: "the civil rights bill covers exactly the same ground as this amendment"

Senate, May 30th - Rep Howard on the 14th: "I was a member of the [reconstruction committee which drafted the 14th] ... we desired to put ... the civil rights bill beyond the legislative power of [the democratic party]."

 

[gc70]

That's a radical interpretation of the text... assuming something which is not actually there. It's the same mistake that anti-gun people make when they read the preamble of the 2nd to be a restriction on the operative clause.

No, Ergosphere, it is not a radical interpretation, but shorthand for a much longer evaluation which you implicitly asked for when you rejected the shorthand version.

The 10 amendments of the Bill of Rights were not written separately in a vacuum and should not be interpreted as though they were.

The Bill of Rights arose from the recommendations of the state conventions that ratified the Constitution. The debates in those state ratifying conventions were consumed by the fears of the anti-Federalists that the new federal government would usurp powers not granted in the Constitution, to the detriment of state powers and sovereignty. In their ratification documents, many of the states recommended explicitly barring federal authority in a variety of areas (mostly involving civil liberties) not addressed in the Constitution. In reading the histories of the state ratifying conventions, I do not remember encountering a single suggestion that the proposed Constitution should be expanded to limit state powers. (A reference to any such suggestions would be greatly appreciated.)

As noted in post #68, the draft of the Bill of Rights that Madison submitted to Congress contained a long list of restrictions on the federal government's powers, but only repeated three items from the list as restrictions on state powers. In short, Madison's draft said "Congress may not do A, while both Congress and the States may not do B." Yet many want to interpret the Bill of Rights as saying "Congress may not do B, while both Congress and the States may not do A." It is inconceivable that Madison would not have noticed, or commented upon, changes that resulted in the exact opposite of the proposals in his draft. Madison clearly believed that the Bill of Rights only restricted the federal government.

The preamble to the Bill of Rights as proposed to the states clearly sets forth the purpose of the Bill of Rights:

The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;--

"in order to prevent misconstruction or abuse of its powers" refers to the powers granted to the federal government in the Constitution. "declaratory and restrictive clauses should be added" refers to the text of the Amendments in the Bill of Rights. The individual Amendments in the Bill of Rights must be interpreted within the context in which they were presented for ratification - as restrictions on the powers of the federal government.

The mistake in interpreting the Bill of Rights is trying to interpret each sentence as though it stands totally alone and without any context. The Bill of Rights reflected a concept - as a precaution, the federal government would be specifically barred from encroaching on the most precious liberties, even though the Constitution did not grant the federal government any power or authority with respect to those liberties. The individual sentences in the Bill of Rights (and each Amendment in the Bill of Rights is a single sentence) simply list the specifics to implement the concept.

 

[hugh damright]

I believe the conclusion that the Bill of Rights "always applied to the states" comes from a too narrow reading of the individual Amendments.

I believe that it comes from a false view of government. If the US was wholly national, such that the federal/state relationship was comparable to the state/county relationship, then the USBOR would naturally be binding against the States. But in our federal system of dual sovereignty, both state and federal governments have constitutions which frame them and bills of rights which limit them.

 

[Ergosphere]

gc70, I confess your knowledge of the history involved is superior to mine. But let's look at the context, shall we?

As noted in post #68, the draft of the Bill of Rights that Madison submitted to Congress contained a long list of restrictions on the federal government's powers, but only repeated three items from the list as restrictions on state powers.

Yes, I see that; the repeated items were eventually adopted as the 1st amendment, minus "freedom of conscience" and their application to the states. I do find this change interesting. But in light of the fact that the adopted amendment is the only one that is expressly limited to restricting congress, along with the fact that the similar restriction upon the states was not adopted, suggests another interpretation. Obviously the restriction on the states was rejected, but also note how the "Congress shall make no law..." language was added. To me that actually suggests the opposite of your claim: that the amendments would apply to the states, except for this. In short, I do not find this to be a convincing argument.

Consider this excerpt from the speech Madison gave upon introducing the bill of rights:

In the declaration of rights which that country [Britain] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

(emphasis added)

It's clear that Madison recognized the danger of not restraining all levels of government... a very real danger, confirmed by the lack of rights in Britain today. I also note his reference here to states bills of rights. But again, it is not absolutely clear to me that Madison intended the more general restrictions to apply only to the federal government.

Then there is the supremacy clause which clearly states that the constitution binds the states. Madison refers to his proposed articles as being "incorporated into the constitution" upon adoption. The legal consequences of doing so, under the supremacy clause, are obvious. The preamble to the bill of rights states:

the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States, all or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

(emphasis added)

gc70, I do see some evidence which might support your claim, but I do not find the arguments you've presented to be convincing. On the other hand, the supremacy clause is very clear.

 

[gc70]

Then there is the supremacy clause which clearly states that the constitution binds the states.

Ah, yes, the Supremacy Clause - invoked so often that it must be quite tired by this time.

On the other hand, the supremacy clause is very clear.

Or maybe not...

Article VI, Clause 2 of the Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Supremacy Clause only has power when there is a conflict between the Constitution and federal and state laws (one is "to the Contrary" of another).

A state law that addresses a topic - for instance, commerce - holds absent a higher authority. A state Constitution that addresses commerce takes precedence over a contrary state law. A federal commerce law takes precedence over contrary provisions in state constitutions. And the commerce provisions of the Constitution take precedence over contrary federal law.

Thus, the Constitution establishes a hierarchy for resolving differences ("to the Contrary") between varying authorities:
- the Constitution of the United States
--- laws and treaties of the United States
----- the constitutions and laws of the various states

Both Joseph Story (in Commentaries on the Constitution) and St. George Tucker (in Blackstone's Commentaries) noted that the Supremacy Clause is only effective for constitutional laws and treaties. Story wrote "It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution" and Tucker wrote "a law not limited to those objects, or not made pursuant to the constitution, would not be the supreme law of the land, but an act of usurpation, and consequently void."

The Supremacy Clause does not extend any of the powers of the federal government in the Constitution, but only declares that the federal government's powers that are enumerated in the Constitution take precedence over conflicting state powers.

To come full circle:

• The original Constitution did not grant the federal government power over civil liberties.
• The Bill of Rights did not grant the federal government power over civil liberties and, in fact, prohibited the federal government from interfering with civil liberties.
• Following the adoption of the Bill of Rights, the Supremacy Clause could not bind the states regarding civil liberties because the federal government held no power over civil liberties.
• The 14th Amendment prohibited the states from interfering with civil liberties.
• After the 14th Amendment had been passed, the Supremacy Clause ensured that the prohibitive power of the 14th Amendment took precedence over all state constitutions and laws "to the Contrary."

Finally, while it has been said before, if the Bill of Rights had originally applied to the states, there would have been absolutely no need or reason to adopt the 14th Amendment.