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View Diary: MONTANA!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (288 comments)

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  •  asdf (0+ / 0-)
    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.

    The other four articles don't seem relevant, so I wonder where you're finding explicit protections for someone other than "persons," "citizens," "person," or "person."

    In addition, the 14th amendment explicitly made the constitutional limitations on federal power enumerated in the Bill of Rights applicable to the states as well (particularly equal protection and due process under the law).  

    If that's true, why do we have "selective incorporation" instead of "comprehensive incorporation?"

    If you don't watch out, your job will become one Americans won't do.

    by happymisanthropy on Sat Dec 31, 2011 at 07:31:21 PM PST

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    •  I'm not sure of the point you're trying to make (0+ / 0-)

      1.  I'm not finding protections for someone other than "persons" or "citizens."  Only people should have constitutional rights.

      2.  Selective incorporation has to do with the standards, or "tests," that are applied in determining the applicability of the 14th amendment to specific state or local actions.  Comprehensive incorporation would have made the 10th amendment and state constitutions largely irrelevant, so different tests were created (rational basis, heightened scrutiny, and strict scrutiny) to determine whether the 14th amendment could be employed to trump state action.  In the vast majority of cases federal intervention was/is unnecessary, and these tests allow for some subtlety in making that determination.

      Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

      by The Knute on Sat Dec 31, 2011 at 08:17:28 PM PST

      [ Parent ]

      •  No, the supreme court (0+ / 0-)

        has never held that the entire bill of rights applies to the states.  For example, the second amendment was not until McDonald a couple years ago.

        I want to limit the power of government. Specifically, I want to limit the power of government to create artificial superpeople and give them the same rights as human beings.

        by happymisanthropy on Sat Dec 31, 2011 at 09:46:22 PM PST

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        •  But That's What I'm Saying -- I Think (0+ / 0-)

          The Court has only made that move (incorporating federal constitutional requirements on the states through the 14th amendment) in limited situations, with a very high burden of proof on the federal government (actually, it's a low standard of proof required by the states to avoid incorporation).

          Unless it's a matter that involves racial discrimination, because of the unique history there, and the specific purpose for which the 14th amendment was adopted. Then, the state must pass "strict scrutiny" to avoid incorporation.  This is the "compelling state interest without narrower available remedies" test.

          If the state is addressing an issue for which the federal government has defined a right as fundamental, or has constructed specific statutory protections (as in gender, age, or handicapped discrimination), then the Court applies the "heightened scrutiny" test.  This is the "legitimate state interest without narrower available remedies" test.

          Absent that, states must only demonstrate a "rational basis" for limitations in citizens' non-incorporated federal rights in order to pass constitutional muster.

          This is an easy standard to meet in some circumstances, but more difficult in others.  For example, the 8th amendment prohibitions against cruel and unusual punishment have basically been applied to the states through the 8th and 14th amendments, because there's not much of a rational basis for punishing convicts in cruel or unusual ways.

          Every once in a while, the Court decides that an issue has risen to the level where incorporation is required to curtail unjustified state abridgment of citizens' fundamental or statutorily defined rights.

          The Griswold/Roe privacy line of cases ultimately used the 14th amendment (among other things) to bootstrap a penumbral fundamental federal "right to privacy" that curtailed states' ability to outlaw both contraception AND abortion.

          Title IX resulted in statutory protections for women in sports programs that requires the application of the "heightened scrutiny" standard to justify states treating men and women differently in the funding of school athletics programs.  This basically represented the incorporation of the equal protection clause of the 14th amendment on states regarding decisions on funding of school sports programs. The states inability to meet that standard (justifying differential funding) resulted in a number of successful lawsuits that transformed HS and college sports opportunities for women.

          Several years ago the Court ruled in a Texas case that there was no "rational basis" justifying criminal penalties for "sodomy," so state sodomy laws were stricken down nationwide.

          Same thing with the recent establishment of the 2nd amendment as a fundamental right, which triggered the heightened scrutiny test and resulted in limiting the ability of states and localities to implement strict gun control laws.

          I really think we're saying pretty much the same thing here.  The 14th amendment creates numerous conflicts with 10th and 9th amendment rights, and as a consequence the Court, rather than effectively wipe out the 10th amendment, has  been pretty selective in those rights for which it's identified a need to incorporate and thus limit state action through the 14th amendment.

          Still, it depends on the circumstances and the ability of the states, when challenged, to justify their rationale for imposing limits on the rights of their citizens.

          Never doubt that a small group of committed people can change the world. Indeed, it is the only thing that ever has. --Margaret Mead

          by The Knute on Sat Dec 31, 2011 at 10:34:13 PM PST

          [ Parent ]

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