State's Rights

[Rotagilla]

I'm pretty sure a banking system was going to come into existence..."constitution" or not.
Otherwise, I'm not sure where we differ very much?

"General Welfare" can be distorted to mean anything one wants...particularly when one's intent is distortion.

 

[Skylar]

I'm pretty sure a banking system was going to come into existence..."constitution" or not.
Otherwise, I'm not sure where we differ very much?

"General Welfare" can be distorted to mean anything one wants...particularly when one's intent is distortion.

It absolutely can. And this is the fun part: Madison himself lamented about how the general welfare clause was being abused and was being applied far beyond its purpose.

3 years after the constitution was ratified.

Which is exactly my point. Almost *immediately* the founders departed from 'the constitution means what Madison thinks it means'. From the very first session of congress onward.

 

[Skylar]

What right was being stripped ?

What right was being violated ?

For that particular ruling? You'd have to look it up. Gay marriage bans have lost 50 of 52 times in the federal courts, failing in so many ways that its hard to remember which bases were cited in which cases. I can give you several examples of rights that were stripped and violated, but they may or may not match up with the actual legal reasoning used in that particular case.

My question is more about how the courts arrived at the point where they felt they had the authority to do this.

Do what? Overrule state marriage laws? Why would State marriage laws be above judicial review? I thought that issue was resolved when Interracial marriage bans went down with Loving V. Virginia in 1967.

As for why they think they have the authority to overrule unconstitutional laws its because the 14th amendment forbids the States violation of the privileges and immunities of Federal Citizens.

 

[Seawytch]

And as to when marriage became a fundamental right, that was in Loving v Virginia first...then in a few more rulings after that. (Zablocki v Redhail & Turner v Safley)

 

[Contumacious]

I'm pretty sure a banking system was going to come into existence..."constitution" or not.
Otherwise, I'm not sure where we differ very much?

"General Welfare" can be distorted to mean anything one wants...particularly when one's intent is distortion.

"If Congress can employ money indefinitely to the general welfare,
and are the sole and supreme judges of the general welfare,
they may take the care of religion into their own hands;
they may appoint teachers in every State, county and parish
and pay them out of their public treasury;
they may take into their own hands the education of children,
establishing in like manner schools throughout the Union;
they may assume the provision of the poor;
they may undertake the regulation of all roads other than post-roads;
in short, every thing, from the highest object of state legislation
down to the most minute object of police,
would be thrown under the power of Congress.... Were the power
of Congress to be established in the latitude contended for,
it would subvert the very foundations, and transmute the very nature
of the limited Government established by the people of America."

e:	On the Cod Fishery Bill, granting Bounties. February 7, 1792, referring to a bill to subsidize cod fisherman http://www.constitution.org/je/je4_cong_deb_12.htm

[TBODY] [/TBODY]

 

[Listening]

And as to when marriage became a fundamental right, that was in Loving v Virginia first...then in a few more rulings after that. (Zablocki v Redhail & Turner v Safley)

So a man can marry two women ?

Didn't think so.

What fundamental right ?

What a laugh.

 

[Listening]

What right was being stripped ?

What right was being violated ?

For that particular ruling? You'd have to look it up. Gay marriage bans have lost 50 of 52 times in the federal courts, failing in so many ways that its hard to remember which bases were cited in which cases. I can give you several examples of rights that were stripped and violated, but they may or may not match up with the actual legal reasoning used in that particular case.

My question is more about how the courts arrived at the point where they felt they had the authority to do this.

Do what? Overrule state marriage laws? Why would State marriage laws be above judicial review? I thought that issue was resolved when Interracial marriage bans went down with Loving V. Virginia in 1967.

As for why they think they have the authority to overrule unconstitutional laws its because the 14th amendment forbids the States violation of the privileges and immunities of Federal Citizens.

O.K. Fair enough.

Wouldn't you think that each case would not appeal to a different set of rights....if they are so blatantly obvious and fundamental.

As to overruling laws. Hasn't it become a game of work it up the chain in the hopes that somewhere along the four or five stops you might make....one will rule in your favor ? If a state supreme court rules....it only goes to the fed it something conflicts with the limited scope of the federal constitution.

As to the 14th....I still can't buy into your basic assertions. If it were as universal as you claim, they really should just get rid of state courts...in fact they might as well dissolve the boundaries between states and just call it one big mess.

 

[Skylar]

Wouldn't you think that each case would not appeal to a different set of rights....if they are so blatantly obvious and fundamental.

Most of the rulings have come down around several points. The due process clause, the equal protection clause, and the failure to meet either the 'Compelling State Interest' standard or the Rational Basis Review. These are precedent based standards of weighing rights against the States authority to legislate. Other factors that play significant roles in these rulings are the long history of discrimination of gays and lesbians. And as a lessor but still noteworthy standard.....the fact that such laws demeaen the dignity of gays and lesbians (mirroring language in Romer V. Evans).

The case most central to Prop 8's demise was Perry V. Schwarzenegger. The history of discrimination against homosexuals has been cited in this case. Due process violations also appear to play prominently in that decision. Equal protection violates played a lesser role. And the failure of gay marriage bans to meet the Compelling State Interest rule or a Rational Basis review were very prominent.

They weren't 'completely different sets of rights cited in each case'. But about 5 to 7 substantial arguments that were used in different combinations, and with different emphases. Perry V. Schwarzenegger didn't really hit the 'equal protection' drum as much as it focused on Due Process. Other rulings focused more on equal protection and much less on due process.

As to overruling laws. Hasn't it become a game of work it up the chain in the hopes that somewhere along the four or five stops you might make....one will rule in your favor ? If a state supreme court rules....it only goes to the fed it something conflicts with the limited scope of the federal constitution.

There are three stops. The State Supreme Court. The Federal Circuit Appellant Court. And the USSC. The first deals with the law under the State constitution. The constitution and caselaw of California can be substantially different than that of say, Idaho. The second and third are federal courts, and typically deal with 14th amendment violations. The States violating the rights of Federal Citizens.

The Federal Circuit Appealant courts are the highest court in their district.....and I believe there are 10 such districts. Their rulings are binding on any lower federal court in their district. But have no effect on the federal courts outside their district. Rulings can be appealed to the USSC by petitioning for a writ of Certorari....requesting that the USSC take up the case. If the SCOTUS denies this petition, then the lower court ruling stands and is binding in that district.

If the SCOTUS takes up the case, then their ruling is final. And it applies across the entire United States.

As to the 14th....I still can't buy into your basic assertions. If it were as universal as you claim, they really should just get rid of state courts...in fact they might as well dissolve the boundaries between states and just call it one big mess.

The federal courts take up a very small percentage of the cases in State court. At least 99% of the State rulings remain untouched by federal judicial oversight. The Feds typically get involved if there's a substantial question of the rights of federal citizens being violated by the states.

This wasn't a power that the Federal Judiciary possessed under the unamended Constitution. Originally the role of the judiciary was a referee and tie breaker between States, and as a check on legislative and executive power in the Federal Government. The Bill of Rights was a document that applies only to the Federal Government. It didn't apply to the States at all. In a case called Barron V. Baltimore, the SCOTUS straight up said this.

This allowed the states to commit some pretty egregious violations of the rights of US citizens within its borders. And the Feds could do exactly dick about it. So...they wrote the 14th amendment, with its two primary backers being Congressman John Binngham and Senator Jacob Howard. Their goal (among many) was to apply the Bill of Right to the States.

And around the turn of the century, the Bill of Rights started being applied to the States. If the States created a law that violated the rights of Federal Citizens, the US government could something about it now. They took on a role they had never had before: as an balance against the authority of the State v. the rights of the people.

That's the basis of Federal judicial review of State laws in regard to their citizens.

 

[Listening]

And around the turn of the century, the Bill of Rights started being applied to the States. If the States created a law that violated the rights of Federal Citizens, the US government could something about it now. They took on a role they had never had before: as an balance against the authority of the State v. the rights of the people.

That's the basis of Federal judicial review of State laws in regard to their citizens.

Do you realize the magnitude of that statement.

Selective Incorporation is a heinous doctrine and one that was never voted on (and you can even look at the how the 14th was passed and see that it is a weak case to say it was the will of the people).

 

[Seawytch]

And as to when marriage became a fundamental right, that was in Loving v Virginia first...then in a few more rulings after that. (Zablocki v Redhail & Turner v Safley)

So a man can marry two women ?

Didn't think so.

What fundamental right ?

What a laugh.

Yes within the confines of current law. Your laughter doesn't change those rulings does it?

 

[Skylar]

Do you realize the magnitude of that statement.

Selective Incorporation is a heinous doctrine and one that was never voted on (and you can even look at the how the 14th was passed and see that it is a weak case to say it was the will of the people).

Incorporation on the States was the explicit intent of the writers and congressional advocates of the 14th amendment. Both Howard and Bingham straight up said so on the Senate and House floors respectively. Howard went as far as to read the first 8 amendments of the constitution to define what he wanted applied to the States as he introduced the 14th amendment to the Senate.

How then is applying the Bill of Rights to the States 'heinous'? Its exactly what the 14th amendment was supposed to do. Even conceptually, I can't wrap my head around why you would object to the State governments NOT being able to violate rights.

As for passage of any amendment and the 'will of the people', you may need to look at the Constitution again. As the people don't play any direct roll in passing amendments. The key player is the State Legislatures. With the second most important role being that of Congress. If an individual State legislature chooses to allow its people to vote on the matter, they certainly can. But its no part of the constitutional process and completely at the digression of the individual legislature.

The founders didn't have much use for direct democracy in the Constitution. In the entire constitution, it played only one role: the election of House representatives.

 

[Listening]

Do you realize the magnitude of that statement.

Selective Incorporation is a heinous doctrine and one that was never voted on (and you can even look at the how the 14th was passed and see that it is a weak case to say it was the will of the people).

Incorporation on the States was the explicit intent of the writers and congressional advocates of the 14th amendment. Both Howard and Bingham straight up said so on the Senate and House floors respectively. Howard went as far as to read the first 8 amendments of the constitution to define what he wanted applied to the States as he introduced the 14th amendment to the Senate.

How then is applying the Bill of Rights to the States 'heinous'? Its exactly what the 14th amendment was supposed to do. Even conceptually, I can't wrap my head around why you would object to the State governments NOT being able to violate rights.

As for passage of any amendment and the 'will of the people', you may need to look at the Constitution again. As the people don't play any direct roll in passing amendments. The key player is the State Legislatures. With the second most important role being that of Congress. If an individual State legislature chooses to allow its people to vote on the matter, they certainly can. But its no part of the constitutional process and completely at the digression of the individual legislature.

The founders didn't have much use for direct democracy in the Constitution. In the entire constitution, it played only one role: the election of House representatives.

Do you know how the 14th was passed ?

Are you aware of the blackmail that was pushed onto the southern states ?

And as to when marriage became a fundamental right, that was in Loving v Virginia first...then in a few more rulings after that. (Zablocki v Redhail & Turner v Safley)

So a man can marry two women ?

Didn't think so.

What fundamental right ?

What a laugh.

Yes within the confines of current law. Your laughter doesn't change those rulings does it?

No, a man can't marry two women under the current law. So marriage is not a fundamental right.

Sorry.

You can only laugh when things have gotten stupid.

 

[Listening]

Do you realize the magnitude of that statement.

Selective Incorporation is a heinous doctrine and one that was never voted on (and you can even look at the how the 14th was passed and see that it is a weak case to say it was the will of the people).

Incorporation on the States was the explicit intent of the writers and congressional advocates of the 14th amendment. Both Howard and Bingham straight up said so on the Senate and House floors respectively. Howard went as far as to read the first 8 amendments of the constitution to define what he wanted applied to the States as he introduced the 14th amendment to the Senate.

How then is applying the Bill of Rights to the States 'heinous'? Its exactly what the 14th amendment was supposed to do. Even conceptually, I can't wrap my head around why you would object to the State governments NOT being able to violate rights.

As for passage of any amendment and the 'will of the people', you may need to look at the Constitution again. As the people don't play any direct roll in passing amendments. The key player is the State Legislatures. With the second most important role being that of Congress. If an individual State legislature chooses to allow its people to vote on the matter, they certainly can. But its no part of the constitutional process and completely at the digression of the individual legislature.

The founders didn't have much use for direct democracy in the Constitution. In the entire constitution, it played only one role: the election of House representatives.

I'll need to get to some of the articles I recall reading on this, but I don't agree with your claim.

And (isn't it ironic) the SCOTUS didn't see it that way either. The whole P&I claim got shot in the ass by the Slaughterhouse Cases.

Until later...which only says that things drift

 

[Seawytch]

Do you realize the magnitude of that statement.

Selective Incorporation is a heinous doctrine and one that was never voted on (and you can even look at the how the 14th was passed and see that it is a weak case to say it was the will of the people).

Incorporation on the States was the explicit intent of the writers and congressional advocates of the 14th amendment. Both Howard and Bingham straight up said so on the Senate and House floors respectively. Howard went as far as to read the first 8 amendments of the constitution to define what he wanted applied to the States as he introduced the 14th amendment to the Senate.

How then is applying the Bill of Rights to the States 'heinous'? Its exactly what the 14th amendment was supposed to do. Even conceptually, I can't wrap my head around why you would object to the State governments NOT being able to violate rights.

As for passage of any amendment and the 'will of the people', you may need to look at the Constitution again. As the people don't play any direct roll in passing amendments. The key player is the State Legislatures. With the second most important role being that of Congress. If an individual State legislature chooses to allow its people to vote on the matter, they certainly can. But its no part of the constitutional process and completely at the digression of the individual legislature.

The founders didn't have much use for direct democracy in the Constitution. In the entire constitution, it played only one role: the election of House representatives.

Do you know how the 14th was passed ?

Are you aware of the blackmail that was pushed onto the southern states ?

And as to when marriage became a fundamental right, that was in Loving v Virginia first...then in a few more rulings after that. (Zablocki v Redhail & Turner v Safley)

So a man can marry two women ?

Didn't think so.

What fundamental right ?

What a laugh.

Yes within the confines of current law. Your laughter doesn't change those rulings does it?

No, a man can't marry two women under the current law. So marriage is not a fundamental right.

Sorry.

You can only laugh when things have gotten stupid.

So Loving v Virginia was stupid?

 

[Skylar]

Do you know how the 14th was passed ?

Are you aware of the blackmail that was pushed onto the southern states ?

Do you know that the 14th amendment did pass. And that its settled law and has been for the overwhelming majority of the existence of our nation? Making any conspiracy about how it 'never really passed' moot and mere rhetorical masturbation?

And you never did answer my questions:

How then is applying the Bill of Rights to the States 'heinous'? Its exactly what the 14th amendment was supposed to do. Even conceptually, I can't wrap my head around why you would object to the State governments NOT being able to violate rights?

 

[Skylar]

I'll need to get to some of the articles I recall reading on this, but I don't agree with your claim.

How can you disagree with my claim if you haven't researched it? Wouldn't an opinion one way or the other be the product of research. And not something you have BEFORE you look into a topic?

If you'd like a jump start, I have quotes, links and even page numbers in the Congressional Record where Bingham and Howard both make it ridiculously clear that the purpose of the 14th amendment was to apply the Bill of Rights to the States.

But if you already disagree, would the quotes matter to you?

And (isn't it ironic) the SCOTUS didn't see it that way either. The whole P&I claim got shot in the ass by the Slaughterhouse Cases.

Sure they did. Just not until about an generation after the passage of the amendment. And they certainly do now. If the rulings of the USSC are your standard, then the issue is long settled. If however, the USSC rulings are only valid if they agree with you, then your argument has already collapsed under the weight of confirmation bias.

So....are the USSC rulings valid or not?

 

[Listening]

I'll need to get to some of the articles I recall reading on this, but I don't agree with your claim.

How can you disagree with my claim if you haven't researched it? Wouldn't an opinion one way or the other be the product of research. And not something you have BEFORE you look into a topic?

If you'd like a jump start, I have quotes, links and even page numbers in the Congressional Record where Bingham and Howard both make it ridiculously clear that the purpose of the 14th amendment was to apply the Bill of Rights to the States.

But if you already disagree, would the quotes matter to you?

And (isn't it ironic) the SCOTUS didn't see it that way either. The whole P&I claim got shot in the ass by the Slaughterhouse Cases.

Sure they did. Just not until about an generation after the passage of the amendment. And they certainly do now. If the rulings of the USSC are your standard, then the issue is long settled. If however, the USSC rulings are only valid if they agree with you, then your argument has already collapsed under the weight of confirmation bias.

So....are the USSC rulings valid or not?

1. I had done reading on it a long time ago and the general sense I got was that it was NOT a settled issue. Additionally, not all of the bill of rights has been incorporated....so what gives.

Case in point:

The Fourteenth Amendment and the Incorporation Debate

Constitutional Topic The Bill of Rights - The U.S. Constitution Online - USConstitution.net

2. You asked the question. about SCOTUS setting the standard. How come the Slaughterhouse cases were not the standard ? They were the first ruling on the 14th.

And you never did answer my question on the 14th.

This article is an interesting historical tidbit most don't like to admit to:

Gene Healy The Squalid 14th Amendment

Passage of the 14th amendment at the point of a bayonet.

 

[Skylar]

1. I had done reading on it a long time ago and the general sense I got was that it was NOT a settled issue. Additionally, not all of the bill of rights has been incorporated....so what gives.

The courts adopted the doctrine of selective incorporatoin. The writers and advocates of the 14th clearly indented all of the first 8 amendments to apply.

Watcha gonna do?

ou asked the question. about SCOTUS setting the standard. How come the Slaughterhouse cases were not the standard ? They were the first ruling on the 14th.

Because they were overruled by the SCOTUS. See my comments about the rulings of the living outweighing the rulings of the dead.

Passage of the 14th amendment at the point of a bayonet.

Its irrelevant to any legal debate. And that's what I'm interested in. It would be like arguing the efficacy of women voting because you don't think the 19th amendment passed. By the standards of our law, it passed. Its been recognized as passing in the law for generations. And any debate of its passage is merely rhetorical masturbation, as it has no relevance on the law today.

 

[C_Clayton_Jones]

“How come the Slaughterhouse cases were not the standard ? They were the first ruling on the 14th.”

Because the Slaughterhouse Cases concerned the Privileges or Immunities Clause of the 14th Amendment, not the Due Process and Equal Protection Clauses, which apply most of the Bill of Rights to the states in accordance with incorporation doctrine, compelling the states to afford Americans citizens both procedural and substantive due process, as well as equal protection of (equal access to) state laws.

In McDonald v. Chicago (2010), incorporating the Second Amendment to the states and local jurisdictions, the Supreme Court reaffirmed the doctrine of selective incorporation.

As Justice Scalia explained in his concurrence:

'Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U. S. 266, 275 (1994) (Scalia, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.'

 

[Skylar]

“How come the Slaughterhouse cases were not the standard ? They were the first ruling on the 14th.”

Because the Slaughterhouse Cases concerned the Privileges or Immunities Clause of the 14th Amendment, not the Due Process and Equal Protection Clauses, which apply most of the Bill of Rights to the states in accordance with incorporation doctrine, compelling the states to afford Americans citizens both procedural and substantive due process, as well as equal protection of (equal access to) state laws.

In McDonald v. Chicago (2010), incorporating the Second Amendment to the states and local jurisdictions, the Supreme Court reaffirmed the doctrine of selective incorporation.

As Justice Scalia explained in his concurrence:

'Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court's incorporation of certain guarantees in the Bill of Rights "because it is both long established and narrowly limited." Albright v. Oliver, 510 U. S. 266, 275 (1994) (Scalia, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.'

That's a way better answer than mine.