What is the purpose of the Bill of Rights?

[azmjs]

The Interstate Commerce clause has been the most stretched and absurdly interpreted portion of the Constitution, particularly since the New Deal. Its original purpose was simply to keep the states from charging tarriifs and hampering free trade. It has been misused by statists to justify a radical expansion of the power of the central government over practically anything that any portion of which crossed a state line. For example, home grown produce that was sold at road side fruit stands is subject to federal regulations under the Interstate Commerce clause even though it was produced and sold right there on the farm. How can this be? Because... some component used to grow it crossed a state line at some point. Maybe it was fertilizer, the tractor or plow or even the gasoline that the tractor used.

See how it works?

So what you're saying in red there is that the product in question is part of interstate commerce...

And we know that the federal government is well within its just, enumerated constitutional powers to regulate interstate commerce.

Surely if this proposition is so unpopular, we'll amend the constitution.

 

[azmjs]

I think there is a point to be made that when the US takes something like the commerce clause and stretches it beyond recognition in order to achieve whatever they fancy ... such that our limited federal government becomes an all powerful national government ... isn't that what the USBOR was intended to guard against?

The commerce clause hardly makes the federal government "all powerful." The bill of rights lays out areas where its power, and indeed now the power of the states and local government, does not fully extend.

Remember, the constitution's purpose is set out plainly.

"in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,"

Establishing justice, perfecting the union, insuring tranquility, providing for the common defense, promoting the general welfare and securing the blessings of liberty are all peers in what was very aptly described as our constitutional system of "Ordered Liberty."

 

[brickeyee]

[1] The Supreme Court expressly ruled in 1833 that the Bill of Rights did not apply to the States.

I none of the most despicable ruling ever issued.

The 14th amendment was clearly intended to bind the states.
The court simply refused to abide by the language of the amendment and congressional intent along with the clear intent of the states that ratified it.

In keeping with Stare decesis the court then effectively reversed the previous ruling without doing so literally.

They found another argument.

 

[hugh damright]

The 14th amendment was clearly intended to bind the states.
The court simply refused to abide by the language of the amendment and congressional intent along with the clear intent of the states that ratified it.

The 14th Amendment says nothing about making the USBOR binding against the States, and the idea that the 39th Congress and the States intended such a thing is clear as mud. I find most evidence to be to the contrary. But regardless, I don't think the OP is asking about incorporation and the 14th Amendment, I think the question regards the original intent and purpose of the USBOR. Constitutional law and US judicial history seem to leave no room for opinion on this matter, it is a fact under constitutional law that the USBOR was intended to bind the federal government and not the States.

 

[azmjs]

I none of the most despicable ruling ever issued.

"[1] The Supreme Court expressly ruled in 1833 that the Bill of Rights did not apply to the States. "

The 14th amendment was clearly intended to bind the states.
The court simply refused to abide by the language of the amendment and congressional intent along with the clear intent of the states that ratified it.

In keeping with Stare decesis the court then effectively reversed the previous ruling without doing so literally.

They found another argument.

Not to split hairs, but the 14th amendment was a consequence of the Civil War, and the civil war happened a long time after 1833.

Back to your regularly scheduled internet constitutional / historical scholarship / supreme court bashing.

 

[Frank Ettin]

[1] The Supreme Court expressly ruled in 1833 that the Bill of Rights did not apply to the States.

I none of the most despicable ruling ever issued.

The 14th amendment was clearly intended to bind the states.
The court simply refused to abide by the language of the amendment and congressional intent along with the clear intent of the states that ratified it...

[1] Are you saying that the Court's 1833 decision (Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833)) was despicable because the Court failed to properly apply the 14th Amendment? Are you not aware that the 14th Amendment was adopted in 1868, some 35 years after the ruling in Barron?

[2] And while the 14th Amendment clearly applies to the States, would you care to specify exactly what in the 14th Amendment shows Congress' intent that the 14th Amendment makes the Bill of Rights applicable to the States?

The 14th Amendment does not say that the Bill of Rights shall apply to the States. What it says, in pertinent part is:

... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Clearly it applies to the States because it says so. But there's no mention of the Bill of Rights.

However, it was reasonable for the Supreme Court to, in deciding what "life, liberty, or property," means in the context of the 14th Amendment to look to the Bill of Rights for guidance. And thus we have the doctrine of incorporation.

 

[Birch Knoll]

Why did you leave this part out?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

 

[ConstitutionCowboy]

Common, fiddletown, you know better than that! The 14th declares that all citizens of the US are also citizens of the state wherein they reside, and that no state shall make or enforce any laws which shall abridge the privileges or immunities of the citizens of the US. That makes all the protections of our rights in the Constitution applicable to the several states just as much as those prohibitions apply to the feral(Federal) government. And, if you wish to stand by the "incorporation" doctrine, well, Justice Thomas did the "incorporation" of privileges and immunities in McDonald v. Chicago.

Woody

 

[Frank Ettin]

Why did you leave this part out?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

Common, fiddletown, you know better than that! The 14th declares that all citizens of the US are also citizens of the state wherein they reside, and that no state shall make or enforce any laws which shall abridge the privileges or immunities of the citizens of the US....

We are discussing incorporation. Thus far the Court has relied on due process as the basis for incorporation. The Court indeed has expressly rejected privileges and immunities as a basis for incorporation (although Justice Thomas in McDonald expressed an interest in retreating from the prior view).

So while privileges and immunities may seem to be an attractive basis for applying the Bill of Rights to the States, it is not the current foundation of the doctrine of incorporation and has been rejected by the Court for that purpose. It is therefore irrelevant to a discussion of the present application of the doctrine of incorporation.

There are, of course, hints, such as Justice Thomas' opinion in McDonald, that the Court might in future be willing to toss out the The Slaughter-House Cases, 83 U.S. 36 (1873), and litigants will no doubt urge doing so in future appropriate cases. But it hasn't happened yet and therefore the privileges and immunities clause is not a part of the current doctrine of incorporation.

 

[Birch Knoll]

Thanks; I should have known that. Sometimes it's easy to forget the distinction between what a plain reading of the text would suggest and the long and winding road that courts have followed.

I'm certainly hopeful that future courts will expand upon the Privileges and Immunities Clause and vastly shrink the scope of the Commerce Clause.

 

[ConstitutionCowboy]

Well, if you can find anywhere in the Constitution that the Court can decide what part of the Constitution it will abide, I'll accept your premise that there is a need for the Court to incorporate the privileges and immunities clause. The doctrine of incorporation is in itself a creation of the Court and I know you know that as well.

The difference between you and me is that your god of the law is the Supreme Court whereas my god of the law is the Supreme Law of the Land, AKA the Constitution (Second only to the Almighty God, of course, and subject to however We the People wish to amend it.).

Woody

 

[Birch Knoll]

The Constitution establishes the courts. Whose job do you think it is to interpret and apply the Constitution if not the courts?

 

[azmjs]

Cowboys

 

[Frank Ettin]

Well, if you can find anywhere in the Constitution that the Court can decide what part of the Constitution it will abide, I'll accept your premise that there is a need for the Court to incorporate the privileges and immunities clause.,...

Woody, enjoy your alternate universe. Whether you accept the premise or not is irrelevant.

 

[Owen Sparks]

So what if the BOR does not apply to the states? There is no STATE law against posession of a fully automatic weapon, silencer or short barrel shotgun in my state. It is all federal and that violates the 2A.

 

[Birch Knoll]

So what if the BOR does not apply to the states? There is no STATE law against posession of a fully automatic weapon, silencer or short barrel shotgun in my state. It is all federal and that violates the 2A.

You mean there is no law in your state against possession of automatic weapons, silencers or short barreled shotguns today.

That's why it matters.

That, and the fact not all states are like yours.

 

[Frank Ettin]

So what if the BOR does not apply to the states? There is no STATE law against posession of a fully automatic weapon, silencer or short barrel shotgun in my state. It is all federal and that violates the 2A.

Is that all that matters?

I guess you don't care about freedom of speech or the press. I guess you don't care about free exercise of religion or the right of assembly or the right to petition government for the redress of grievances. Perhaps the right to confront your accuser in court doesn't matter to you. How about the right to remain silent?

 

[gc70]

I guess you don't care about freedom of speech or the press. I guess you don't care about free exercise of religion or the right of assembly or the right to petition government for the redress of grievances. Perhaps the right to confront your accuser in court doesn't matter to you. How about the right to remain silent?

Oddly enough, I think those are questions that the people should decide. And I think the people's decisions should be made as they were when the Constitution was ratified and for more than a century thereafter ... at the state level.

I like diversity.

 

[Frank Ettin]

I guess you don't care about freedom of speech or the press. I guess you don't care about free exercise of religion or the right of assembly or the right to petition government for the redress of grievances. Perhaps the right to confront your accuser in court doesn't matter to you. How about the right to remain silent?

Oddly enough, I think those are questions that the people should decide. And I think the people's decisions should be made as they were when the Constitution was ratified and for more than a century thereafter ... at the state level.

That's fine, but that door is now closed. However, you point out the fundamental conundrum.

There are certainly people who share your view. But there are also thoughtful people who hold a differing view. And those views are fundamentally mutually exclusive. A choice has been made. One could say that the choice was made in 1868 by Congress and the States ratifying the 14th Amendment, which provides, in full:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

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

Of course, insofar as we're concerned with fundamental personal liberties, we're interested in Section 1. But Section 1 does appear to establish a floor for personal liberties below which a State may not go.

 

[Birch Knoll]

I am marveling at the idea that there are people on this forum who would prefer that they had fewer rights under State law.

 

[Frank Ettin]

Oddly enough, I think those are questions that the people should decide...

I am marveling at the idea that there are people on this forum who would prefer that they had fewer rights under State law.

And those statements suggest to me a basic and vital function of the Bill of Rights and Section 1 of the 14th Amendment: To prevent a tyranny of the majority.

So at some point it matters not that a majority of the body politic in the country or a State or a town believe that those books should be banned, or since honest folks have nothing to hide police should be free to snoop on a whim, or since confession is good for the soul there's nothing wrong with a little pressure to help it along, etc. And thus certain rights will be protected even if those rights are, at a particular time and in a particular place, cherished only by a minority.

 

[hugh damright]

I am marveling at the idea that there are people on this forum who would prefer that they had fewer rights under State law.

I don't recall anyone saying that they would prefer fewer rights ... I think the idea is that some people still believe in the founding principle that we will have fewer rights if we put them in the hands of the federal government.

Besides, all this incorporation stuff is intellectually dishonest ... the 14th says that no State shall deprive any person of life, liberty, or property without due process of law, which obviously means that they can do these things by due process of law. The intent is that States abide by their laws, not abide by the whim of the SCOTUS. In other words, the 14th regards procedural due process not substantive due process.

 

[Frank Ettin]

Besides, all this incorporation stuff is intellectually dishonest ... the 14th says that no State shall deprive any person of life, liberty, or property without due process of law, which obviously means that they can do these things by due process of law....

Ah, the 5th Amendment says essentially the same thing (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

 

[gc70]

I am marveling at the idea that there are people on this forum who would prefer that they had fewer rights under State law.

You marvel wrongly. You assume that a one-size-fits-all federal approach reflects the epitome in protecting rights. I only assume that the federal government protects rights in a more uniform manner than would 50 states. Left to their own devices, the state would probably have different mixes of rights protected to different extents. The ability to choose between those different mixes might be an attractive right in itself.

 

[gc70]

And those statements suggest to me a basic and vital function of the Bill of Rights and Section 1 of the 14th Amendment: To prevent a tyranny of the majority.

That only substitutes the tyranny of one majority for that of a different majority.