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View Diary: The Supreme Court Bought 3-4 Years Today (64 comments)

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  •  Find That Term Anywhere In the Constitution (0+ / 0-)

    or any of the amendments.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Wed Jun 26, 2013 at 08:02:56 PM PDT

    [ Parent ]

    •  You'll Find It in the Articles of Confederation nt (0+ / 0-)

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Wed Jun 26, 2013 at 08:03:26 PM PDT

      [ Parent ]

    •  The tenth amendment (1+ / 0-)
      Recommended by:
      linkage

      talks about the rights of the people, not the states.  Oops.

      Touch all that arises with a spirit of compassion. An activist seeks to change opinion.

      by Mindful Nature on Wed Jun 26, 2013 at 09:33:07 PM PDT

      [ Parent ]

      •  The construction of it is slightly different, but (1+ / 0-)
        Recommended by:
        Mindful Nature

        I agree with your underlying argument.

        The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
        A common reading is that means that the state government got the first "bite" at the 10th Amendment delegated powers - otherwise, we would be drowning in referenda about whether or not to fill in the potholes on Morrison Street, etc. etc. etc.  It's the age-old fuzzy line between representative democracy and direct democracy, and the US Constitution fell pretty solidly on the "representative democracy" side of that debate.

        I always like to read it as the people and the state governments as an entity should be held roughly equal, but while that is elegant in principal, it's difficult to implement in the real world.

        "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

        by auron renouille on Wed Jun 26, 2013 at 10:54:55 PM PDT

        [ Parent ]

    •  As Mindful Nature notes, the Tenth Amendment (0+ / 0-)

      has been interpreted to be a powerful weapon.

      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
      The Federalists were not all that concerned about the internal governance of states - they wanted simply to unite the states under a common leadership.  Many of the rights that prevent the states from violating Constitutional rights actually have to take a round trip through the 14th and/or 5th Amendments; for at least a century, the states could violate the Bill of Rights because those rights were only a restriction on the federal government.  Once SCOTUS began to view the Reconstruction amendments (13th, 14th, 15th) expansively, in the late 19th and early 20th century, the states' governments became bound by the bill of rights as well.

      So, there was, at one time, a Constitutional basis for the argument.  But it was steadily eroded after the Civil War (ironically, see Lochner et al ;p - and Lochner is universally mocked these days as second only to Plessy in its wretchedness) and the post-court packing scandal Roosevelt justices put the nail in the "states' rights" coffin.

      "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

      by auron renouille on Wed Jun 26, 2013 at 10:49:54 PM PDT

      [ Parent ]

      •  The 14th is there to control the states (1+ / 0-)
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        auron renouille

        Some of the Bill of Rights was intended to apply as restrictions against any government, and even against private citizens; this includes the 4th, 5th, and 8th amendments.

        (Which is why it's horrifying that we're fighting the 4th/5th/8th amendment battles all over again -- we're actually fighting the question of whether we have the rule of law or the rule of despots.)

        But most notably, nothing in the Bill of Rights makes it enforceable in federal court against the states -- standing issues!  It was intended to be enforceable in state court against the states, but that's another matter.  That didn't help black people in Alabama.  The Bill of Rights had pretty clear prohibitions against despotic, arbitrary behavior, but did nothing to prevent a state from instituting a system of abusive laws, as long as the state courts colluded in it.

        The First Amendment specifically only binds Congress -- a very strict construction would make members of Congress criminals if they passed laws which infringed on the freedom of the press, but would leave those unconstitutional laws in place until they were repealed.  (They actually have some very weird legal mechanisms like that in the UK; look up the mechanism for dealing with legislation found to be in violation of European Human Rights law..  But such a strict construction of the First Amendment is eliminated in the US by the legal principle under which "ultra vires" actions are void ab initio.)

        Now, jump forward to the 1860s.  The purpose of the Fourteenth Amendment was explicitly to get the state governments under control, by guaranteeing everyone in the US the same "privileges and immunities" as everyone else, as well as the right to "due process", and -- most crucially, in legal terms -- by giving federal courts the power to rule on these issues, which they previously lacked.  If you read the discussions among the people who wrote it, that's what the 14th amendment was for.

        "privileges and immunities" was a technical legal term of the period, and mostly referred to the rights people had as specified in the Bill of Rights.

        The Reconstruction-era court, being incredibly evil and corrupt, proceeded to gut the "privileges and immunities" clause (starting in the so-called "Slaughterhouse cases").  Recent courts revived it through the back door as "substantive due process", but, in an excess of deference to stare decisis, they left the Slaughterhouse precedents intact.

        Which just shows how corrupt our Supreme Court has been for most of its history.  The Slaughterhouse precedents need to be thrown out, as cases of clear error motivated by malice on the part of racist judges.  And we still haven't done that.

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