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

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  •  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laws which infringed on the freedom of the press, but would leave those unconstitutional laws in place until they were repealed.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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