Yeah, we’ve been over this one. Tell me who the Chief Justice was in that case. Now let’s talk about all the controversy at that time about the impropriety of that Chief Justice’s steerage of law at that part of our nation’s history.[/quote]
But the decision was unanimous. And it was a pro-states’ rights decision…so if you are suggesting that the outcome was more political because Marshall had an agenda to grow the size and scope of the federal government, doesn’t an unabashed victory for states in this case undermine any claim that it fit that political agenda?
It wasn’t? Then show me credible commentary supporting a claim that the Bill of Rights always applied to the states. If the issue wasn’t “cut and dried”, you should be able to find ample evidence of influential thinkers or institutions arguing the other way. Where is it?
So why does the Tenth Amendment end with “o the people”? If only the state and federal governments have rights, why include that? [/quote]
The Tenth Amendment reserves the powers of the states or the people. As in, along with the states, “the people” retain their power to enact, legislate, etc.
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I don’t necessarily disagree with you. If the federal government had the power to A, B, and C, and state governments had the power to do everything not prohibited to them, then what was left to the people? The people had the “power” to vote?
[quote]pushharder wrote:
One of the problems I’ve had all along in acknowledging TB’s position is that to accept it means:
Contrary to the text of the 3rd Amendment, i.e., “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,” a soldier could indeed be quartered in any house without the consent of the Owner as long as state law allowed it and/or it was state, not federal soldiers. So “No” actually doesn’t mean “No,” it means “Some.” Was it intended to mean “Some” or No?"
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” only applied in regards to federal authorities." I do wonder if that was the original intent. Could one or all of the states do exactly what the British had been doing for a number of years in this regard if the state so chose? Really?
Could “private property be taken for public use without just compensation” as long as it was taken by the state and not the federal government?
Despite “In ALL criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” a state could, if it so chose, decide that in a criminal prosecution the accused could enjoy the right to a slow and private trial by a partial jury and it would not even have to be in the State and district wherein the crime shall have been committed.
Excessive bail could be required, excessive fines imposed, and cruel and unusual punishments inflicted if any state so chose.[/quote]
This is exactly what I was getting at. It defies logic to believe that the framers intended for the Bill of Rights to not have any thrust with the states.
Apparently TB has the chops to argue these esoteric intersecting historical and legal points (and my post suggesting otherwise wasn’t meant as an insult, just a guess that he wasn’t), but I feel like these rather obvious notions you’ve illustrated here get completely overlooked in the course of the rhetorical gymnastics involved with making the points he and SM do.
But I guess you and I don’t know much at all, and the Bill of Rights isn’t really a bill of rights after all, eh?
[quote]pushharder wrote:
One of the problems I’ve had all along in acknowledging TB’s position is that to accept it means:
Contrary to the text of the 3rd Amendment, i.e., “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,” a soldier could indeed be quartered in any house without the consent of the Owner as long as state law allowed it and/or it was state, not federal soldiers. So “No” actually doesn’t mean “No,” it means “Some.” Was it intended to mean “Some” or No?"
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” only applied in regards to federal authorities." I do wonder if that was the original intent. Could one or all of the states do exactly what the British had been doing for a number of years in this regard if the state so chose? Really?
Could “private property be taken for public use without just compensation” as long as it was taken by the state and not the federal government?
Despite “In ALL criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” a state could, if it so chose, decide that in a criminal prosecution the accused could enjoy the right to a slow and private trial by a partial jury and it would not even have to be in the State and district wherein the crime shall have been committed.
Excessive bail could be required, excessive fines imposed, and cruel and unusual punishments inflicted if any state so chose.[/quote]
Yes, all these things could happen. The Bill of Rights was not ratified to be a cure-all to all perceived wrongs, regardless of at what level they occurred. Most states had similar protections and were modeled on the US Constitution, so as a practical matter, you’d have these protections at state and local levels.
But states were free to change them, enlarge them, reduce them, whatever - as they saw fit. That is the essence of federalism, and the Bill of Rights did not interfere with it, and was not intended to
This is exactly what I was getting at. It defies logic to believe that the framers intended for the Bill of Rights to not have any thrust with the states.
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No, in fact as remarked by Marshall it was “not a difficult” decision because it is “self evident from the structure and literal language of the Constitution.”
As I said, this has always been a straightforward matter. It’s not controversial or even disputed and I’m not aware of it ever being disputed by anyone. The Constitution and the BoR were written to establish a national government and to designate its powers and restrictions upon it. It applied only to the federal government. This is common sense. The anti-federalists who ratified the constitution never would’ve done so if it had been a restriction on state governments. It “defies logic” to say otherwise.
I wasn’t making any point. I was reading the thread and I saw NickViar claiming the BoR always applied to the States. I know otherwise and so I said so.
By the way, Ron Paul insists that the BoR still don’t apply to the States and he rejects incorporation in its entirety. How could Ron Paul be wrong about the Constitution?
This is exactly what I was getting at. It defies logic to believe that the framers intended for the Bill of Rights to not have any thrust with the states.
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No, in fact as remarked by Marshall it was “not a difficult” decision because it is “self evident from the structure and literal language of the Constitution.”
As I said, this has always been a straightforward matter. It’s not controversial or even disputed and I’m not aware of it ever being disputed by anyone. The Constitution and the BoR were written to establish a national government and to designate its powers and restrictions upon it. It applied only to the federal government. This is common sense. The anti-federalists who ratified the constitution never would’ve done so if it had been a restriction on state governments. It “defies logic” to say otherwise.
I wasn’t making any point. I was reading the thread and I saw NickViar claiming the BoR always applied to the States. I know otherwise and so I said so.[/quote]
I’ve been doing some follow-up reading on the subject of incorporation and I stand corrected. I’m also pleased that certain states now stand corrected by McDonald v Chicago.
It still seems strange to me, but that’s why I speak authoritatively on deadlifts and fart jokes, not Constitutional Law.
The anti-federalists who ratified the constitution never would’ve done so if it had been a restriction on state governments. It “defies logic” to say otherwise.[/quote]
This is a great point, and often overlooked
And following up, I have never seen any credible source of any kind disputing the idea that the Bill of Rights doesn’t apply to the states. Never.
And in fact, that is one reason why there are no big “cases” deciding individual rights up until (largely) the Civil War era. There were all kinds of state laws being passed during this time (for good, ill, and a mix of both), but they weren’t challenged under any provision under the Bill of Rights.
There is a reason.
Incorporation sux. It was a sausage making operation from the get-go.[/quote]
It may suck but that’s how the courts have ruled so I don’t know on what grounds he rejects it. It’s not up to him to say the courts got something wrong therefore we should ignore their ruling.
Hey, your case is credible. I’ve admitted that. Deep down inside I really want to swallow it whole because I’m a states rights/federalism-believin’/original intent aficionado.
However, you do have some problems. One of them is the use of the word “all” in the 6th Amendment and “no” in the 3rd. [/quote]
Not really. The Sixth Amendment expressly references criminal prosecutions in “districts”, meaning federal districts. And the Third Amendment’s most operative term is “soldier”, and since states are forbidden from keeping troops (Article 1, Section 10, Clause 3), engaging in war (same), and may not raise an army (Congress has that power, Article 1, Section 8, Clause 12), it’s pretty clear the intent was to restrict the federal government - who had control of “soldiers”, commonly understood in the framework of allocation of military responsibilities - from quartering. (And, “soldiers” are distinct from “militia” in the Constitution, so the two groups cannot be conflated.)
But that brings us back to the point - what was the original intent? You keep looking for “loopholes” in terms of ambiguity in the language - ok, if there is, in fact, some ambiguity, why not he a straight to original intent? And is there any credible evidence that the original intent was to have the Bill of Rights apply to the states?