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In Reply to: RE: One of the many Sam Adams beers... NOT. posted by John Marks on February 02, 2017 at 07:48:45
I don't give too much weight to these old statements about the Constitution, because we've really had two constitutions: pre-14th Amendment, and post-14th Amendment.
The original Constitution and Bill of Rights created a federal government with explicitly stated and limited powers, and under the 10th Amendment any powers not expressly delegated to the federal government were retained by the states. There was no requirement that anyone have the right to vote (that was left entirely to the states, even for federal elections), no requirement for equal treatment under state or federal law, and with respect to state law, no requirement for due process of law or freedom of speech. All of those things came with the 14th Amendment in 1868, that was essentially imposed on the former Confederate states and that directly contradicts the 10th Amendment.
You know all that, John, but it's surprising how few do in general.
Follow Ups:
Significant watersheds in my estimation include, but are by no means limited to:
1. The Sixteenth Amendment, which authorized the levy of an individual income tax and thereby forever changed the basic relationship between citizens and the federal government.
2. The string of civil rights cases beginning with Brown v. Board and including the under-appreciated Katzenbach v. McClung, the cumulative result of which was the swallowing of federalism by the Commerce Clause.
3. The various individual rights cases, such as Griswold v. Connecticut, Roe v. Wade and District of Columbia v. Heller, which add a dimension to constitutional law that would have stunned the Founders.
Greetings from the University of Virginia Law School Class of 1985.
Happy listening,
Jim
"The passage of my life is measured out in shirts."
- Brian Eno
1. The 14th Amendment created the precedent that the federal government had the power to impose obligations on, and limit powers of, states and individuals beyond those contexts explicitly authorized in the constitution, ending the original concept of federalism. The 16th Amendment followed suit.
2. The civil rights cases for the most part were a direct result of the 14th Amendment. True, the Commerce Clause was there to begin with, and increased in importance early on, well before the civil war. But I'd argue that the Commerce Clause didn't swallow federalism, rather the rapidly increasing and ultimately overwhelming prevalence of interstate commerce itself did.
3. Here I think you are entirely correct, because individual rights didn't exist at all in the federal system created by the "Founders", which is why slavery could be perfectly constitutional, for example.
Greetings from the University of Virginia Law School class of 1988.
Cool conversation...
Point three is IMHO a bit of a quagmire...
I start from the standpoint that the Federal system/Constitution does not "create" rights, but rather restricts the Federal government from encroaching upon rights that have their origin elsewhere: either Natural Law (quagmire alert), colonial law, state law, or ancient custom.
So, from that perspective, the Second Amendment's
the right of the people to keep and bear Arms
to me at least seems to guarantee that the Federal government (and, by extension under the post-Civil-War amendments, the states) cannot infringe the core right to keep and bear arms; and further that that right inheres in individuals (and not just citizens).
HOWEVER, I also gather that the Supreme Court has made the resting place of the right crystal-clear only in the 21st century.
I filed one cert petition with the US Supremes, a mulligatawny of one-man/one-vote and takings clause, etc., and got blanked. But in the event, had they heard my case, they could have inflicted Kelo vs. City of New London on the nation several years earlier.
Trivia point: Rhode Island law preserves the rights of Rhode Islanders under the Charter of Charles II (to the extent not over-ruled by the state's Consitution, which came about only post Civil War). It gets better: the Charter preserves colonists' rights under the Magna Carta. So, within my lifetime, the RI Supremes decided a case based on the Great Charter.
Apparently one of the unenumerated ancient rights is jury trial for paternity cases. Rhode Island had established a Special Master program to rubber-stamp DNA tests and issue orders. Nyet, said the RI Supremes.
Which any lawyer with three years of real-world experience would say is a Poisoned Chalice: OK, Buddy. Invoke a jury trial and they will REALLY take it out of you.
Anyway, enough alter-kacker-ism from JM
Vanderbilt Law School 1979.
ATB,
jm
No individual rights are created or recognized in the original constitution or (misleadingly named) bill of rights, only that the federal government can't take certain rights away from those who already happen to have them, and has to provide certain rights under the federal laws it enacts and enforces. The states could do as they pleased.
That all changed with the 14th amendment, with only one remaining exception. AFAIK, the constitutional right to a jury trial, both civil and criminal, of the 7th amendment still applies only to federal courts. States still set their own rules for jury trials and do not have to allow them in their criminal or civil courts at all, though nearly all do. Apparently Rhode Island has some unusual traditions in that regard, and they survive the 14th amendment.
The 14th amendment also made democracy the law of the land, explicitly and uniformly. Before that, states had varying democratic (or other)traditions dating back to colonial days or earlier, such as those you cite with respect to Rhode Island.
Some time we'll have to play "did you know".
Happy listening,
Jim
"The passage of my life is measured out in shirts."
- Brian Eno
Thanks for the compliment.
Obviously, what stuck in JQA's craw was that the South had more power in the Federal system than the number of its free voters deserved; slaves were both unfree but also the foundation of the South's disproportionate plitical power.
I was in the Deep South once and someone took me past the cemetery where the six generals who died leading from the front in the Battle of Franklin were buried. By then the Cause was Lost; but they would rather die than face the future After the Lost War. Chilling.
Talk about Faulkner's dictum that the past is not even past, let alone dead.
ATB,
JM
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