SCOTUS erred incorporating 2nd?

[Eddie]

Well...depends on how you define "right" and "err".

Since the constitution says the SCOTUS will be the supreme law of the land, that means whatever they say is how it is, right wrong or indifferent.

The SCOTUS is only held to the standards set by the SCOTUS so they're only wrong if they decide that they're wrong.

Just like at home, the wife is only wrong if she says so. Otherwise, I'm just an unreasonble jerk, or some variation thereof.

Your wife sounds familiar.

 

[Kirk Freeman]

and the idea of incorporation just doesn't seem right.

So, we ignore the Civil War and the Fourteenth Amendment because of feelings?

The Bill of Rights was to be applied to the Federal Government because the founders did not have it enter their minds that the people would tolerate such abuse from a state or local government

No, you have it inverted, the Framers of the Fourteenth Amendment wanted redress for the abuse of state and local governments. Why do you think that local or state government cannot turn feral?

If there's a bright side, it's that those folks seem to like to congregate together in IL, CA, and DC.

So it would be O.K. for the majority to infringe the rights of the minority in California? That's what was happening in the South after the Civil War and the Framers wanted to extend the BoR to the States to ensure that the state-sponsored terrorism stopped.

 

[CarmelHP]

Come now, did it not have to do with the original intent of the Framers of the Fourteenth Amendment wanting to protect Blacks from the privations of the KKK.

As you remember from school, state courts (in the South no less) were incorporating the Second Amendment decades before the Fourteenth Amendment was ratified.



Cannot the same be said of Marbury v. Madison?

Courts cannot declare statutes unconstitutional? The Legislative and Executive Branches are supreme and the Judicial Branch is for . . . locking up the innocent (or at least the overcharged)?



So striking down the unconstitutional laws of the Southern states to extend jury trial rights, confrontation, inter alia, did nothing to prevent tyranny? A local government cannot tyrannize us? There are not other ways to resist tyranny other than the rifle? An appeal to arms before an appeal to law and reason?



I agree as well, but it the part of the horrific legacy of racism, the Court did not want to follow the intent of the Framers and extend the entire Bill of Rights to the states.

Sometimes I think the only sane people left are me and Kirk, and I'm sometimes not too sure about Kirk. But he's right in this case. Reading the arguments in the Senate about the 14th Amendment, it's clear that everyone at the time believed they were making the BoR fully applicable to the states, especially its opponents. Along comes the last gasp of the Taney Court's holdovers in a 5-4 decision in Slaughterhouse Cases (1873) and the 14th Amendment is gutted. Because of the then Supreme Court doctrine that they never overrule themselves, they lived with Slaughterhouse until Gitlow (1925) when they invented the selective incorporation doctrine to use the due process clause instead of the P&I clause. The authors of the 14th Amendment had the same understanding of it as does Justice Thomas.

 

[kludge]

+1 to the previous two posts.


Slaughterhouse needs to go. It's far overdue. Like 85 years overdue, like CarmelHP said. Bad precident makes for more bad precident.

 

[Fargo]

Come now, did it not have to do with the original intent of the Framers of the Fourteenth Amendment wanting to protect Blacks from the privations of the KKK.

The 14th Amendment? Yes. Incorporation? No.

As you remember from school, state courts (in the South no less) were incorporating the Second Amendment decades before the Fourteenth Amendment was ratified.

Yes, as a fundamental right, not because they thought there was federal jurisdiction over it. Plus, at what point have the feds ever given a flying monkey poo about what a state court thought of federal law?

Cannot the same be said of Marbury v. Madison?

Courts cannot declare statutes unconstitutional? The Legislative and Executive Branches are supreme and the Judicial Branch is for . . . locking up the innocent (or at least the overcharged)?

You are misconstruing my position. I am not challenging judicial review, I am challenging an extension of federal jurisdiction which was made out of whole cloth in the 1920's.

So striking down the unconstitutional laws of the Southern states to extend jury trial rights, confrontation, inter alia, did nothing to prevent tyranny? A local government cannot tyrannize us? There are not other ways to resist tyranny other than the rifle? An appeal to arms before an appeal to law and reason?

Those were easy straight due-process decisions, clearly encompassed within "due process" going back to the Magna Carta. There is no need for incorporation to sustain them and I do not take exception to them. Plus, as I recall, the federal 12 person jury right as well as the grand jury right still have NOT been incorporated which kinda kills your point.

I am all for "due process of law", but "due process of law" is not the same thing as "certain parts of the 1st eight amendments to the constitution that we like". "Due process of law" both encompasses some of those rights as well as goes beyond them to prohibit any fundamentally unjust legal proceedings by which the state wants to deprive you of life, liberty or property.

I agree as well, but it the part of the horrific legacy of racism, the Court did not want to follow the intent of the Framers and extend the entire Bill of Rights to the states.

Where do you get this "intent of the framers" thing? If they wanted to apply the the BoR to the states, why didn't they say so? Plus, if "due process of law" just means the BoR, then why does the 5th Amendment have a "due process" clause. I mean, why waste your time with the rest of the BoR is that is what "due process" really means?

The original meaning of the 14th Amendment was not to "incorporate" anything. It was to guarantee just legal proceedure, among other things, in state prosecutions. That some of those legal proceedures are defined in the BoR is a happy event, but does not somehow make them "incorporated" any more than it incorporated those same proceedures as defined in Blackstone.

Best,

Joe

 

[Fargo]

Sometimes I think the only sane people left are me and Kirk, and I'm sometimes not too sure about Kirk. But he's right in this case. Reading the arguments in the Senate about the 14th Amendment, it's clear that everyone at the time believed they were making the BoR fully applicable to the states, especially its opponents. Along comes the last gasp of the Taney Court's holdovers in a 5-4 decision in Slaughterhouse Cases (1873) and the 14th Amendment is gutted. Because of the then Supreme Court doctrine that they never overrule themselves, they lived with Slaughterhouse until Gitlow (1925) when they invented the selective incorporation doctrine to use the due process clause instead of the P&I clause. The authors of the 14th Amendment had the same understanding of it as does Justice Thomas.

I need to study Justice Thomas' opinion closely which I haven't had a chance to do so yet. However, I don't believe that the SCOTUS decision in Macdonald can really be said to be based on the P&I clause. It is a 4-1-4 plurality decision with only 1 judge going the P&I route. 4 justices decided it upon "due process" grounds which I just cannot agree with as a legal matter.

Best,


Joe

 

[CarmelHP]

I need to study Justice Thomas' opinion closely which I haven't had a chance to do so yet. However, I don't believe that the SCOTUS decision in Macdonald can really be said to be based on the P&I clause. It is a 4-1-4 plurality decision with only 1 judge going the P&I route. 4 justices decided it upon "due process" grounds which I just cannot agree with as a legal matter.

Best,


Joe

Nobody said it was. That was Thomas' complaint. The other four in the majority said that they're not now going to try to correct 150 years of error about P&I in this decision. Due Process? Close enough for government work.

 

[Fargo]

Due Process? Close enough for government work.

On that I think I have to disagree. When you take things wholly unrelated to "due process," such as the 1st and 2nd amendment and try to blend them in with real due process rights like the 5th and 6th amendment, you end up destroying any real meaning to the words "due process of law."

As one of the principle catalysts for this country leaving Britain's rule was deprivation of due process rights via the courts of admiralty*, I just am not willing to go down that road.

Best,


Joe

*John Adams, Instructions of the Town of Braintree to Theri Representatives. 1765

But the most grievous innovation of all, is the alarming extension of the power of courts of admiralty. In these courts, one judge presides alone! No juries have any concern there! The law and the fact are both to be decided by the same single judge, whose commission is only during pleasure, and with whom, as we are told, the most mischievous of all customs has become established, that of taking commissions on all condemnations; so that he is under a pecuniary temptation always against the subject. Now, if the wisdom of the mother country has thought the independency of the judges so essential to an impartial administration of justice, as to render them independent of every power on earth,—independent of the King, the Lords, the Commons, the people, nay, independent in hope and expectation of the heir-apparent, by continuing their commissions after a demise of the crown, what justice and impartiality are we, at three thousand miles distance from the fountain, to expect from such a judge of admiralty?

 

[88GT]

No, I absolutely meant what I wrote. Gitlow v. New York is generally accepted to be the 1st incorporation case. It was decided in 1925; approximately 60 years after the ratification of the 14th amendment and around 130 years after the ratification of the BoR

My apologies. I read the comment on ratification to mean ratification of the BoR.

No, it had nothing to do with "need" and everything to do with the federal judiciary deciding to make it up out of whole cloth. Why? Because the federal courts wanted to grant to itself the authority to impose its will on the states. Remember, all incorporation does is substitute the authority of 9 unelected lawyers in black robes for the authority of your elected representatives. It is a "protection" in name only.

It may be a protection in name only, that your bolded statement is not a logical conclusion from it. And I happen to disagree.

Incorporation has done little to nothing to do with preventing "tyranny" at the state level. It is nothing more than a transfer of state authority to the federal judiciary.

Really? Protecting inalienable rights from state-level infringement is not thwarting tyranny?

I don't disagree that incorporation implicitly grants a power to the feds that holds a high risk. What the courts grant, the courts can "un-grant" so to speak. That is not the issue though. The issue is whether inalienable means inalienable. Either it does and the only logical conclusion can be that states were implicitly prohibited from restricting them as well. Or they are not, in which case we have scant need of a BoR at all. Freedoms be damned, full speed ahead with the enslavement.

The bolded part is absolutely incorrect. To take the side of the author is to say that the words of the constitution mean what they meant when they were ratified. The BoR is not the be-all end-all of checks on tyranny. Don't try to make it do more than it actually does. To do so ignores the rest of the constitution, the state constitutions, and the ability of the people to rule through their elected representatives.

He said himself that if the members of a state wanted to elect legislators that would trample their rights, it was acceptable to do so. So essentially 51% of the population has the power to trample the rights of their neighbors because some people believe that state governments can't be held to the same limitations as the federal government. If you agree that the states are immune to the limitations of the BoR and the 14th does not extend those limitations to the states, then you agree that majority tyranny in a legally seated legislature is perfectly acceptable.


If the words of the Constitution mean what they say, then I have some issues with your line of thinking.

1. You say the BoR was intended only to limit the federal government. (Until last night, I would have agreed to some extent.) Yet only the first amendment specifically mentions Congress. If they were so specific on exactly whom the limitation was placed in authoring the first amendment, why is there no such specificity and exclusivity in the others?

Example: The 4th doesn't say "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated by Congress." It simply says it shall not be violated.

Example: The 6th doesn't say "In all federal criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." It says "In all criminal prosecutions...." It makes no distinction between federal or state. If it means what is says, how can one infer that it means only federal?

In fact, one could argue with merit that amendments 5-8 were directed explicitly at states since the vast majority of court proceedings were held on the state (or lower) level. To date, there had been no federal crimes. And aside from those in the military or treason/sedition/espionage crimes, there were precious few crimes that fell under federal jurisdiction. (Arguably, there were zero crimes that fell under federal jurisdiction outside what I've already excepted given the time frame between the seating of the first Congress and the enactment of the BoR.) Couple that with the prevailing notion that the powers of the federal government had always been intended to be minimal and as narrow as possible, and therefore there would be limited instances in which violations of federal law would occur, it doesn't seem likely that the amendments addressing rights in legal proceedings were concerned solely with federal cases.

2. The language of the 14th amendment seems fairly clear to me.

"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 laws. "

There are two independent clauses in this sentence. Both can and do stand alone. Neither is dependent on the other for the full meaning to be known. They could just as easily be separated by a period. The same word games are used by others to try and limit the 2nd amendment to a militia. But in the 2nd, the independent clause stands alone in its meaning as well. The dependent clause is explanatory, not limiting. There is no limiting clause or phrase in the 14th either.

If the privileges and immunities of a citizen of the U.S. does not include the rights protected in the BoR, then what, exactly, does it include? Again, I'm not being snarky. It is a stretch to argue, IMO, that the protections of the BoR are NOT part of the privileges and immunities we hold as citizens of the U.S. And as such, it is very clear that no state shall enact a law which abridges those privileges/immunities, necessarily including the immunities against the infringements of inalienable rights.

I'm sorry if I'm coming across belligerent, but the view that the 14th does not extend to the states necessarily contradicts several other accepted standards as well as nullifies some of the most basic premises upon which our entire paradigm of self-governance and individual sovereignty is built. It also makes the men who created the foundation for this country raving hypocrites or self-important frauds.

3. The acceptance of rights as inalienable or not. I touched on this above, so I won't belabor the point again. But if a right is so sacred that it is labeled inalienable and considered an inherent aspect of the nature of man, what convolution of logic must be used to justify the prohibition of infringement of said rights by one body of government while at the same time turning a blind eye when said infringement is perpetrated by another body of government?

 

[88GT]

You are misconstruing my position. I am not challenging judicial review, I am challenging an extension of federal jurisdiction which was made out of whole cloth in the 1920's.

Ah, now I understand a little bit better where you're coming from. However, the assumptions implicit in this statement bother me. Perhaps you could clarify or address them. Jurisdiction implies possession of powers and authorities and the "right" to act. The issue at the heart of the BoR is exactly the opposite: prevention of action by complete removal of the power and authority. It's not like the feds are gonna claim exclusivity to the right not to do something. There's no ownership of a lack of power and authority. It's simply a nonentity.

I see the BoR written for the purposes of protecting rights, not clarifying the jurisdictions of who can't have the power and authority to do something. In that vein, I see nothing exclusive about the language of the BoR, excepting the 1st, that limits said restriction to the federal government.

Where do you get this "intent of the framers" thing? If they wanted to apply the the BoR to the states, why didn't they say so? Plus, if "due process of law" just means the BoR, then why does the 5th Amendment have a "due process" clause. I mean, why waste your time with the rest of the BoR is that is what "due process" really means?

By that same token, if they intended it to be limited solely to the federal government, why was that point not made abundantly clear? It would seem to me that it is far more important to be clear about an intended limitation than an intended universality. And since you brought up the redundancy aspect, if it was meant to apply exclusively to the federal government, why does the first amendment say it explicitly while the others do not? Isn't that a little unnecessary?

The original meaning of the 14th Amendment was not to "incorporate" anything. It was to guarantee just legal proceedure, among other things, in state prosecutions. That some of those legal proceedures are defined in the BoR is a happy event, but does not somehow make them "incorporated" any more than it incorporated those same proceedures as defined in Blackstone.

Then how do you explain the very first clause that explicitly prohibits states from enacting legislation that infringes on the rights a person has from being a citizen of the U.S.? It's a stand-alone concept and not dependent on the following clause for any of its meaning. Furthermore, the form of the sentence structure indicates that the two are separate and distinct.