Bill of Rights - Federal only, or states too?

[eproxy100]

Did the founding fathers intend for the bill of rights to supersede state laws or not, except those which are not stated of course as given by the 10th amendment ?

I know that officially it doesn't apply to the states because of a supreme court ruling. We are all aware of how reliable, or unreliable, the supreme court is. As Thomas Jefferson said:

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

So please base it on something else aside from just the supreme court ruling.

[Danke]

Some States had state religions and religious requirements to hold office.

[Mini-Me]

It really depends on three questions:

1. Does the wording of specific Amendments require the states to respect them as well as the feds? Except for the First Amendment, the wording seems like it very well might. (Also, if the First Amendment does apply to the states, then state libel/slander laws are unconstitutional. "No law" means "no law.")
2. Do you believe the Fourteenth Amendment was properly ratified? If so, continue to the next question; otherwise, the entire matter rests in the hands of the previous question.
3. Is the "incorporation doctrine" a proper interpretation of the Fourteenth Amendment? If so, why? If not, what IS the proper interpretation?

I kind of go back and forth on this issue. Most states have a bill of rights of their own (often stronger than the US Bill of Rights), so it's probably more of an academic question than a practical one for most purposes. Still, I'm starting to believe more and more that the wording of the Second through Eighth Amendments is absolute and probably applies to government at all levels, even without the incorporation doctrine. In comparison, the First can only apply to the states if the incorporation doctrine is valid.

If the First DOES apply to the states, then that opens up a dangerous can of worms that can ironically undermine free speech everywhere: If a state government is bound by the First Amendment ("no law") but still gets away with making exceptions for libel and slander, then that precedent becomes a foot in the door for arbitrary exceptions at ANY level of government, including the federal level. This would give the feds the excuse they need to unconstitutionally undermine the First Amendment everywhere. (Of course, for all I know, there are probably federal libel and slander laws on the books anyway...which makes it a moot point, since the dangerous precedent has already been set. Also, the infamous "fire in theater" argument that ignores the point of property rights already set a dangerous precedent here anyway as well.)

[Acala]

Since the question is what the FOUNDERS intended, the 14th amendment does not come into play. And in that case, the Bill of Rights was intended to be a limitation on Federal power only. I don't think any Constitutional scholars really argue that the Bill of Rights, prior to the Civil War amendments, was intended to be a limitation on State power. The hard question is what was the effect of the Civil War amendments on the pre-existing amendments.

[Tend yer biscuits.]

Some States had state religions and religious requirements to hold office.

and that stood until like the 1940's, I think. Some SCOTUS case decided states couldn't handle the issue.

[Baptist]

Since the question is what the FOUNDERS intended, the 14th amendment does not come into play. And in that case, the Bill of Rights was intended to be a limitation on Federal power only. I don't think any Constitutional scholars really argue that the Bill of Rights, prior to the Civil War amendments, was intended to be a limitation on State power. The hard question is what was the effect of the Civil War amendments on the pre-existing amendments.

The 14th Amendment wasn't meant to apply the BoR to the states either. If it was, then it would have applied the BoR to the states immediately. Instead, activists judges in the 1920s ruled that the 14th makes the BoR apply to the states. From 1865-1920s nobody thought the BoR applied to the states.

[osan]

It really depends on three questions:

1. Does the wording of specific Amendments require the states to respect them as well as the feds? Except for the First Amendment, the wording seems like it very well might. (Also, if the First Amendment does apply to the states, then state libel/slander laws are unconstitutional. "No law" means "no law.")

I think you hit the nail on the head here. If an Amendment were to say "Federal government shall (or shall not) do X", it would seem pretty clear that that amendment would not apply to the states. First Amendment: "Congress shall make no law..." Seems to apply to the feds only. That interpretation does, however, raise one or more uncomfy questions, in this case about whether one's right to free speech is basic and inherent, which I believe it to be.

[osan]

Since the question is what the FOUNDERS intended, the 14th amendment does not come into play. And in that case, the Bill of Rights was intended to be a limitation on Federal power only.

I cannot agree, particularly in the case of BoR. Can you show where it would make sense that a provision makes sense for the feds but not the states? Does it make sense to protect individual rights against infringement by the federal government but not the states? We the feds cannot impose cruel and unusual punishments, but the states are free to engage in any acts of torture they deem fit?

I don't think any Constitutional scholars really argue that the Bill of Rights, prior to the Civil War amendments, was intended to be a limitation on State power.

That is a pretty big assumption to make.

[Acala]

Can you show where it would make sense that a provision makes sense for the feds but not the states?

Yes. It made perfect sense in the context in which it was drafted. Remember, the BoR was drafted as an inducement to the STATES to get them to join the Constitutional compact. The States already had their own Constitutions which in some cases included their own BoRs. They were not objecting to the new Federal Constitution because it had insufficient limitations on STATE power. They were concerned about runaway Federal power and the BoR was promised to them as a limit on Federal power in exchange for their ratification of the Federal Constitution. So it makes perfect sense that the BoR was intended only to limit Federal power. What would not make sense is for the States to demand a BoR to limit their OWN power.

You don't think it makes sense from the perspective of protecting individual liberty overall, and you are correct. But that was not the purpose of the document.

individual rights[/I] against infringement by the federal government but not the states?

Yup, because the BoR was written to induce the States to give up some of their power to the new Federal government. The anti-federalists were afraid the new federal government would run away with power. They were NOT concerned about State governments because those governments already existed.

We the feds cannot impose cruel and unusual punishments, but the states are free to engage in any acts of torture they deem fit?

The States were happy with the constitutions each of them already had in place. They were not joining the Federal compact to alter their own constitutions.

That is a pretty big assumption to make.

I am open to contrary evidence if you can find any. But it really is not subject to serious debate among scholars because the evidence is clear and overwhelming.

I understand and am sympathetic to the idea that it doesn't matter to the individual WHICH government is violating his rights. But the BoR was not drafted as a blanket protection of individuals. It was drafted as a limit on the power of the new Federal government. It is almost always best to think of rights as limitations on power rather than some entitlement owned by individuals.

[osan]

The 14th Amendment wasn't meant to apply the BoR to the states either. If it was, then it would have applied the BoR to the states immediately. Instead, activists judges in the 1920s ruled that the 14th makes the BoR apply to the states. From 1865-1920s nobody thought the BoR applied to the states.

What you assert may be true, but the question I never hear asked is whether it is correct.

If the state of Mississippi decided to reinstate the institution of chattel slavery this afternoon, and if we assume that law has supreme effect (no violent rebellions), then what is to protect those who would constitute the new slave class from becoming that chattel if the BoR does not apply to the states that constitute the membership of this confederation?

It seems to me that we get bogged down in all these irrelevant arguments on the formalisms and forget about the underlying principles and what makes sense in the context of establishing and keeping a free nation.

The concept of Natural Rights and all it implies leads one to this simple conclusion where any action in violation of the principles therein is concerned: joking about violating the rights of free and sovereign people, much less taking material steps to such ends, is morally illegitimate, prima facie.

All this thrashing regarding states' contractual rights (AKA "states' rights") pursuant to the agreement into which they have entered with the other states in the formation of and participation in the federal system is almost so much specious noise. The BoR, IMO, defines a set of contractual obligations to the member states in the first 8 Amendments. States' rights are everything else that is not specified in the Constitution and that does not violate Amendment IX, which IMO must of necessity greatly supersede Amendment X in significance, salience, and force in all cases. In fact, given the realities of what states are, the Thenth Amendment is actually wholly redundant and therefore extraneous.

We must remember why this arrangement was contrived in the first place: to establish a nation composed of a federation (a club if you will) of sovereign peoples from varying terrirories (states) whose central purpose was to guarantee and protect the fundamental rights of living, breathing people against infringements of any sort or degree by anyone. All other considerations pale into insignificance beside this cardinal mandate to the "state" by the people. This is the same as saying that the people have mandated to themselves and to each other that their common basic rights come first and foremost among considerations. Without this mandate, no state is morally legitimate in any way or degree.

If there were 100 slots of "significance of purpose" into which the various potential roles of government could be placed as a means of prioritizing them, the protection and guaranty of our basic rights would occupy all of them. It is the ONLY legitimate role of government and all action taken must comport to that purpose.

By entering into such a contract, each state agrees that whatever their priorities may have been previously, their central commitment, obligation, and raison d'etre is now to guarantee and protect the basic human rights of all people as they may find themselves within the material borders of state territories and/or that of the United States. There is NO legitimate choice of the "state" to violate human rights, nor to allow them to be violated.

The "state" is US - every single individual, living, breathing person. There is no "state" without us. "State" is merely a set of conceptual conventions that are supposed to comport with the natural law of basic human rights and are never legitimate when they do otherwise. The "state" is us, and as such we are protecting ourselves individually by protecting equally for all. All other arguments are noise and/or extraneous.

If we don't want to lose a good thing to the usurpers and would-be masters, we had better start getting our heads unscrewed from our anuses.

It is really as simple as that.

[osan]

You don't think it makes sense from the perspective of protecting individual liberty overall, and you are correct. But that was not the purpose of the document.

In this case our Constitution is morally illegitimate in toto on that basis alone and the whole concept of the United States has been a sham from day 1.

I understand and am sympathetic to the idea that it doesn't matter to the individual WHICH government is violating his rights. But the BoR was not drafted as a blanket protection of individuals. It was drafted as a limit on the power of the new Federal government.

See above.

It is almost always best to think of rights as limitations on power rather than some entitlement owned by individuals.

<SCREEEEEEEEEEEEEEEEEEEEEEEEEEEECH>...

Good heavens NO!!!!!

Where on earth did you dredge up such an utterly reprehensible and logically indefensible notion?

Read essay in sig, below. PLEASE.

[eproxy100]

Some States had state religions and religious requirements to hold office.

I don't think that's a good support to the argument that the bill of rights applies only to the federal government. Take for example the alien and sedition acts of 1798. There's hardly any disagreement that the act is unconstitutional, yet it was never challenged in court and never abolished. It proves that unconstitutional laws can exist and be unchallenged, which the religious requirements may fall into. Therefore, unchallenged laws cannot prove that the founders intended for the bill of rights to apply only to the federal government.

My argument for the bill of rights to apply to even state laws is two folds:

1. The bill of rights is part of the constitution and the constitution is "the law of the land". I refer to the supremacy clause in the constitution which 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."

2. The founding fathers intent with the bill of rights was to protect people's rights. If the bill of rights only applied to the federal government, what is to stop the states from committing crimes against those rights?

Why does this issue matter? As far as I know the 2nd amendment hasn't been incorporated into all state laws. I'm sure you all know how important it is.

[Acala]

In this case our Constitution is morally illegitimate in toto on that basis alone and the whole concept of the United States has been a sham from day 1.



See above.



<SCREEEEEEEEEEEEEEEEEEEEEEEEEEEECH>...

Good heavens NO!!!!!

Where on earth did you dredge up such an utterly reprehensible and logically indefensible notion?

Read essay in sig, below. PLEASE.

Thinking about rights as an individual entitlement leads to the completely erroneous notion that someone can have a "right" to health care or food or housing. Understanding rights as limitations on power avoids this error.

True rights all boil down to simply being left alone. The right to be left alone doesn't make sense except in the context of some power that can interfere with you and then it functions as a limitation on that power. Absent an entity with the power to interfere, the concept of rights is meaningless. If you were the only living person on this planet, would you have rights? It would be a meaningless idea.

[Pericles]

I don't think that's a good support to the argument that the bill of rights applies only to the federal government. Take for example the alien and sedition acts of 1798. There's hardly any disagreement that the act is unconstitutional, yet it was never challenged in court and never abolished. It proves that unconstitutional laws can exist and be unchallenged, which the religious requirements may fall into. Therefore, unchallenged laws cannot prove that the founders intended for the bill of rights to apply only to the federal government.

My argument for the bill of rights to apply to even state laws is two folds:

1. The bill of rights is part of the constitution and the constitution is "the law of the land". I refer to the supremacy clause in the constitution which 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."

2. The founding fathers intent with the bill of rights was to protect people's rights. If the bill of rights only applied to the federal government, what is to stop the states from committing crimes against those rights?

Why does this issue matter? As far as I know the 2nd amendment hasn't been incorporated into all state laws. I'm sure you all know how important it is.

Correct answer.

Only the 1A is a restriction on the federal government only "Congress shall make no law"

Why would that language be in one amendment and not the others?

[torchbearer]

bill of rights was written to restrain the federal government.
"congress shall pass no law...."
etc.


/thread

[Morgan Brykein]

The Bill of Rights applies to the federal government. Each state is expected to have it's own constitution, and the people are expected to be vigilant enough to preserve liberty in their state. So when the Second Amendment says the right to bear arms cannot be infringed, that means the federal government may not restrict the right to bear arms. The states can do what they want.

[crushingstep7]

Supremacy clause?

[eproxy100]

Since the question is what the FOUNDERS intended, the 14th amendment does not come into play. And in that case, the Bill of Rights was intended to be a limitation on Federal power only. I don't think any Constitutional scholars really argue that the Bill of Rights, prior to the Civil War amendments, was intended to be a limitation on State power. The hard question is what was the effect of the Civil War amendments on the pre-existing amendments.

Scholars are just people - fallible as any. Look at how there are economic scholars who support keynesian economics. Would you agree with those economic scholars that keynesian economics is correct?

[Acala]

Scholars are just people - fallible as any. Look at how there are economic scholars who support keynesian economics. Would you agree with those economic scholars that keynesian economics is correct?

There is plenty of debate among economists. Even among Austrians.

I am not aware of any scholarly debate on the issue of the original BoR applying to the states. It is inconsistent with a fully documented history.

I am open to any argument to the contrary. But I have yet to hear one that is consistent with history or the clear stated intent of the document.

[osan]

Thinking about rights as an individual entitlement leads to the completely erroneous notion that someone can have a "right" to health care or food or housing. Understanding rights as limitations on power avoids this error.

Huh? It does no such thing, save in the minds of ignoramii and crooks. Entitlement to such things does not logically follow from such assumptions.

By your statement, above, one could easily infer that one is not entitled to their own life. Is that what you are positing?

Right are, by definition, entitlements. An inborn, inherent right is an inborn, inherent entitlement. A contractual right is a contractual entitlement. This is by definition and is beyond argument. The main error in peoples' reasoning lies in the fallacious practice of extrapolating a fundamental entitlement to all manner of others.

For example, my right to keep and bear arms axiomatically leads to my right to access to a firearm. All that means is that if I am able to acquire one by legitimate means (you know, working, making a buck and spending it on a gun), I am entitled to choose to do so. It does not mean that some government agency is thereby authorized to forcibly take money that YOU earned at the job and provide me with a gun.

Our right to life does NOT imply the right to be fed and housed by government. It only entitles us to life and the pursuit of survival. If an earthquake swallows me or my house burns with me in it, that is tough cookies for me. If I cannot or will not get a job, that is also too bad. I am not entitled to a job, or food, or clothing, or housing, or safety except by my legitimate ability to provide them for myself, "legitimate" meaning morally so. But the idiots and the parasites don't see it that way. Their ignorantly or willfully misapplied "logic" (if the term could even be reasonably said to apply) is used to justify robbery of those who work for their daily bread so they may skate through their days in strict avoidance of having to.

True rights all boil down to simply being left alone. The right to be left alone doesn't make sense except in the context of some power that can interfere with you and then it functions as a limitation on that power. Absent an entity with the power to interfere, the concept of rights is meaningless. If you were the only living person on this planet, would you have rights? It would be a meaningless idea.

I think I understand what you are attempting to say - that in being left alone you are thereby free to act pursuant to your will and capability. Even so, you are not quite all the way there because the right to be left alone ends at my doorstep, so to speak. You are not free to interfere with others. We all make equal claim to be left alone and that is what bounds YOUR rights. Beyond that, the sky's the limit.

[eproxy100]

There is plenty of debate among economists. Even among Austrians.

I am not aware of any scholarly debate on the issue of the original BoR applying to the states. It is inconsistent with a fully documented history.

I am open to any argument to the contrary. But I have yet to hear one that is consistent with history or the clear stated intent of the document.

You seem to have ignored the "consistent with history" supremacy clause.

[Baptist]

What you assert may be true, but the question I never hear asked is whether it is correct.

If the state of Mississippi decided to reinstate the institution of chattel slavery this afternoon, and if we assume that law has supreme effect (no violent rebellions), then what is to protect those who would constitute the new slave class from becoming that chattel if the BoR does not apply to the states that constitute the membership of this confederation?
.

The 13th Amendment. It prohibits slavery and involuntary servitude.

[Acala]

You seem to have ignored the "consistent with history" supremacy clause.

The Supremacy Clause says only that in the very narrow areas in which the Federal government was authorized to act as agent for the States, the Federal law supercedes state law.

The Supremecy clause was necessary for even the very limited compact to function. For example, the states wanted an impartial third party to prevent protectionism among the states. In order for that to work, the third party needs to be able to make the rules that everyone agrees to obey. Same with the arbitrator of disputes among the states - the arbitrator's ruling has to be binding. Same with the rest of the enumerated powers. For them to function, they had to trump the states on those specific issues.

The Supremecy Clause says NOTHING about the SCOPE of Federal power.

[Acala]

By your statement, above, one could easily infer that one is not entitled to their own life. Is that what you are positing?

What I am saying is the the right to your life is actually a limitation on government power to take your life. Imagine you are the only human on the planet. Have you got the right to life? Tell that to the griz as he is ripping out your liver. The concept of a "right" is a shorthand term to express the legal relationship between one person or group and another in which the power of one or both is limited towards the other.

Right are, by definition, entitlements. An inborn, inherent right is an inborn, inherent entitlement. A contractual right is a contractual entitlement. This is by definition and is beyond argument.

And yet here I am arguing with you!

For example, my right to keep and bear arms axiomatically leads to my right to access to a firearm..

Perfect example. Suppose you are the only human on the planet. Still have a right? It is a meaningless concept except in the context of a relationship with another human power.

It does not mean that some government agency is thereby authorized to forcibly take money that YOU earned at the job and provide me with a gun...

Exactly! It is a limitation on government power.

Our right to life does NOT imply the right to be fed and housed by government. It only entitles us to life and the pursuit of survival. If an earthquake swallows me or my house burns with me in it, that is tough cookies for me. If I cannot or will not get a job, that is also too bad. I am not entitled to a job, or food, or clothing, or housing, or safety except by my legitimate ability to provide them for myself, "legitimate" meaning morally so. But the idiots and the parasites don't see it that way. Their ignorantly or willfully misapplied "logic" (if the term could even be reasonably said to apply) is used to justify robbery of those who work for their daily bread so they may skate through their days in strict avoidance of having to.

I agree with all of this. But try and explain it to someone who has not studied freedom. They don't intuitively understand the difference between the right to self-defense and the right to helath care. But you can easily and succinctly explain it by saying simply this: true rights are limits on government power. If it cannot be protected by limiting (rather than increasing) government power, it is not really a right. It draws a clear line.

To some extent this is a semantic argument. But looking at rights as limits on government power rather than some abstract individual "possession" helps when explaining the difference between true rights and socialist crap. It also helps explain how the Bill of Rights could have originally applied only to the Federal government and not the States.