Religions > Atheism > A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
02 Nov 2005 03:43:32 PM |
| Object: |
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE |
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
This from a conservative newsgroup
Theocracy in action
http://www.michnews.com/artman/publish/article_10139.shtml
[excerpt]
Guest Commentary
A HISTORIC EXAMPLE OF JUDICIAL ACTIVISM: THE CANTWELL CASE
By David W. New, Esq.
MichNews.com
Nov 2, 2005
The problem of judicial activism is on the national radar scope more
today than ever before. Americans know that something is wrong when
activist judges rule that "under God" in the Pledge of Allegiance is
unconstitutional. Many people who were not sure if judicial activism
was a problem changed their minds when the Massachusetts Supreme
Courtbuckeyeelo
ruled that homosexuals have a right to marry. How can a constitution
written in 1780 by John Adams suddenly protect gay marriage? The
American Bar Association just released a poll which suggested that
more than half of all Americans believe that judicial activism is a
serious problem today. Note 1.
Most people think that judicial activism is something new. However, a
check with the history books would suggest that it has been with us
since the 1940's if not earlier. In my opinion, the most important
example of judicial activism in American history occurred on May 20,
1940. On this date, the U.S. Supreme Court issued its infamous
Cantwell v. Connecticut decision. Note 2. Surprisingly, very few
Americans know anything at all about this case. However, the Cantwell
decision has affected your life in a very big way. If religious
freedom is important to you then you should learn as much as possible
about this case. Cantwell is probably the most important religion case
in American history. In fact, it could be argued that it is more
important than the First Amendment!
In this article, I propose to explain why the Cantwell decision is in
a sense more important than the First Amendment. I will also explain
the basic facts of the Cantwell case and how it affected religion law
in the United States. In a nutshell, the U.S. Supreme Court illegally
seized control of religious freedom in the United States through the
Cantwell decision. As a result of this case, the Supreme Court began a
new career as the final arbiter of the separation of church and state
in America. Thus, the Cantwell decision was a turning point in
American history.
THE BASIC FACTS OF THE CANTWELL CASE
[snip]
RELIGIOUS FREEDOM BEFORE CANTWELL
[snip]
RELIGIOUS FREEDOM AFTER CANTWELL
[snip]
WHY IS THE CANTWELL DECISION MORE IMPORTANT
THAN THE FIRST AMENDMENT?
[snip]
HOW CANTWELL AFFECTED THE PUBLIC SCHOOLS
[snip]
HOW CANTWELL AFFECTED THE TEN COMMANDMENTS
[snip]
JUDICIAL ACTIVISM IN CANTWELL
[snip]
For an insightful history of religious freedom in America, read my
book "Religious Freedom in America for Beginners." Visit
http://www.religiousfreedom.us for ordering information.
*****************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
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| User: "Gray Shockley" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 10:32:24 PM |
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On Fri, 4 Nov 2005 17:43, anonymous poster drooled:
Only if you conveniently forget that there is in this country a
presumption of innocence, and that whether Scalia is an activist
depends, if I may borrow a lick from Pres. Bill, what the meaning of
"will be" is.
Recalling the words of John Houseman, why do you assume Justice Scalia
will become the voice of the Supreme Court? Get that revelation from
Shirley MacClaine or from her whack job brother, Bulworth?
Semi-seriously, if you were afraid of judicial activism, wouldn't you
want people on the court whose judicial philosophy includes an abhorance
of legislating from the bench.
Oh, and one more thing... don't look under your bed.
I doubt seriously that wimps such as Freddie Scalia and Thomas
Krueger will bother me. Nineteen months in VietNam and twenty years
in the military makes one immune to just about everything.
And, of course, there's the added value of my 51 semester hours in
philosophy - one gets used to different perceptions (read AHuxley -
or try to - anyway).
Scalia, Thomas,
Freddie Krueger and a bunch of other Bogiemen are down there just
waiting....
Not the present regime; they seem to want to get into my wife's
medical appointments and into our finances and into our living
rooms and into our bedrooms and chandeliers. {Are you as much a
PATRIOT as Geo W C Bush43, the gutless punk from Texas?}
But, then, being a civil rights activist from 1962-1967 in the
Delta of Mississippi taught me some things, too. I had the
advantage of being a fatalist /before/ I got to VietNam.
More likely under the bed would be Mrs Bush and Mrs Scalia and Mrs
Thomas, checking to see if everyone elses' husbands are also
"minuteman".
Or as one of the femmes said, sitting around the grill at Ole Miss
in the middle sixtites: "Politically, I thought I could be a
conservative, once upon a time, but the conservative boys just are
no good in bed and they act so proud of lasting a minute, man. And
then they strut around as if I had had an orgasm, too."
But, then, I'm still miffed that the United States is not going to
try BooterScooter Libby for Treason.
And we really need to impeach Yellow Bush and Purple Cheney for
shielding a traitor.
Additionally, charges of lewd & public stupidity should be part of
the charges in Yellow Bush's "high crimes & misdemeanors".
Is Karl Rove still around? Would firing (or arresting) him be Geo W
C Bush43's lobotomy?
I don't think the present regime is going to be around 'til the end
of term. I think Bush will resign. There are already quite a few
commentators ("liberal", of course [snicker]) that have been
comparing the LittleBushAdministration to U S Grant's.
And Grant, himself, was not corrupt. I don't think the history
books will say that about the present Fearful "Leader".
Or about you and knight.
Gray Shockley
Vicksburg, MS
------------------
Impeach Cheney and Bush for America
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| User: "Gray Shockley" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 06:01:09 PM |
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On Fri, 4 Nov 2005 16:50:44 -0600, Cary Kittrell wrote:
In article <0001HW.BF913B92002B9C2BF0284550@news.giganews.com>
grayshockley@gmail.com writes:
On Fri, 4 Nov 2005 10:57:22 -0600, Mickey wrote:
You know, this smear is tossed around an awful lot at judges on both
sides. How about a few citations. In particular, I would be curious how
a justice whose reputation rests in large part on his dissents can be
called activist. Doesn't being in the dissent kind of limit one's
ability to be active.
Just because he fails at being an "activist"
doesn't make him less of an activist.
And there are chances and choices that,
soon, he will be in on the majority opinions
most of the time.
If Associate Justice Antonin Scalia becomes the voice of the
Supreme Court, I predict that it will take the United States a long
time to get back to a republican form of government.
That's an intentional set-up, right?
-- cary
No; a prediction.
++ gray
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| User: "fred" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 12:34:12 AM |
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alt.education removed
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
I'm not a legal expert but I disagree that we are a Common Law system:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
Pre-Constitution Americans were familiar with the Common Law system in
the sense that you better do what a judge told you to do. The main
reason that we're still acting like a Common Law system in many ways is
probably because people can't change "bad habits" overnight regardless
of a unique new Constitution; people undoubtedly simply continued to do
what judges told them to do. Indeed, given Amenicans at large have
never really understood how Constitutional checks and balances are
supposed to work, judges with a Common Law mentality perhaps found it
convenient to simply keep on calling the shots, sheep-herding the
"commoners" as they saw fit. Again, people probably didn't know any
better.
I guess that it shouldn't surprise me that, given activist judges are
telling separationists and atheists what they want to hear with respect
to unconstitutional absolute church-state separation, separationists
would misrepresent our Constitutional system as a Common Law system
simply to put judges on a pedestal.
.
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 08:44:48 AM |
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On 3 Nov 2005 22:34:12 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131086052.216785.257880@g14g2000cwa.googlegroups.com>:
alt.education removed
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Read that again. The Federal government _never_ had the right and the
Constitution, as originally written, said nothing about what the states
could do. The Founding Fathers did not _delegate_ power to the states.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
I'm not a legal expert but I disagree that we are a Common Law system:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
Jefferson's writings as a whole are not opposed to the Common Law.
England had statutes as well. I have no idea what the context of the
Livingston letter was, but it seems to have been quite selectively
edited. I'm curious, how much of the Constitution did Jefferson write?
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
When you quote a dissenting judge, as you quote Justice Swayne here (83
U.S. 36, 129), it is necessary to make it clear to your audience that
this was a dissent, lest you be accused of intentionally trying to
mislead the audience. Given that your source misled you here, you might
want to consider a new source.
Pre-Constitution Americans were familiar with the Common Law system in
the sense that you better do what a judge told you to do. The main
reason that we're still acting like a Common Law system in many ways is
probably because people can't change "bad habits" overnight regardless
of a unique new Constitution; people undoubtedly simply continued to do
what judges told them to do. Indeed, given Amenicans at large have
never really understood how Constitutional checks and balances are
supposed to work, judges with a Common Law mentality perhaps found it
convenient to simply keep on calling the shots, sheep-herding the
"commoners" as they saw fit. Again, people probably didn't know any
better.
So you are willing to overturn Marbury. You are willing to allow the
Federal government to ignore the Bill of Rights. You are willing to
allow the Congress and President to do whatever they want, with no
Judicial oversight.
I guess that it shouldn't surprise me that, given activist judges are
telling separationists and atheists what they want to hear with respect
to unconstitutional absolute church-state separation, separationists
would misrepresent our Constitutional system as a Common Law system
simply to put judges on a pedestal.
Of course, it is Scalia and Thomas who are the activists today.
.
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| User: "fred" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 02:09:06 PM |
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David Jensen wrote:
On 3 Nov 2005 22:34:12 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131086052.216785.257880@g14g2000cwa.googlegroups.com>:
alt.education removed
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Read that again. The Federal government _never_ had the right and the
Constitution, as originally written, said nothing about what the states
could do. The Founding Fathers did not _delegate_ power to the states.
Where are you coming from! :^(
The 10th Amendment _reserved_ unique powers for the States as a
Supreme Court "gaffe" in Jones v. City of Opelika opinion shows; an
opinion that actually had the honesty and guts to mention the 10th
Amendment:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1943
Given the 1st Amendment prohibited the power to address religion to the
federal government by explicitly prohibiting Congress from making
religious laws, the 10th Amendment reasonably reserved this power for
the States. Note that not only are the 10th Amendment sovereign powers
of the States mentioned in the same sentence with our religious
freedoms above but, Jefferson, Mr. "wall of separation" himself, also
hinted about the State's power to legislate religion:
"Our citizens have wisely formed themselves into one nation as to
others and several States as among themselves. To the united nation
belong our external and mutual relations; to each State, severally, the
care of our persons, our property, our reputation and religious
freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
I'm not a legal expert but I disagree that we are a Common Law system:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
Jefferson's writings as a whole are not opposed to the Common Law.
England had statutes as well. I have no idea what the context of the
Livingston letter was, but it seems to have been quite selectively
edited. I'm curious, how much of the Constitution did Jefferson write?
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
When you quote a dissenting judge, as you quote Justice Swayne here (83
U.S. 36, 129), it is necessary to make it clear to your audience that
this was a dissent, lest you be accused of intentionally trying to
mislead the audience. Given that your source misled you here, you might
want to consider a new source.
You ignored that Jefferson is also a "dissenter" with respect to judges
making the law:
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
Pre-Constitution Americans were familiar with the Common Law system in
the sense that you better do what a judge told you to do. The main
reason that we're still acting like a Common Law system in many ways is
probably because people can't change "bad habits" overnight regardless
of a unique new Constitution; people undoubtedly simply continued to do
what judges told them to do. Indeed, given Amenicans at large have
never really understood how Constitutional checks and balances are
supposed to work, judges with a Common Law mentality perhaps found it
convenient to simply keep on calling the shots, sheep-herding the
"commoners" as they saw fit. Again, people probably didn't know any
better.
So you are willing to overturn Marbury. You are willing to allow the
Federal government to ignore the Bill of Rights. You are willing to
allow the Congress and President to do whatever they want, with no
Judicial oversight.
<ROTFL> Considering what I've been posting concerning honest
interpretations of the Constitution, or the lack thereof, your
statement is not even in the ballpark:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
I guess that it shouldn't surprise me that, given activist judges are
telling separationists and atheists what they want to hear with respect
to unconstitutional absolute church-state separation, separationists
would misrepresent our Constitutional system as a Common Law system
simply to put judges on a pedestal.
Of course, it is Scalia and Thomas who are the activists today.
Scalia and Thomas aren't trying to sweep the Constitution under the
carpet like their activist colleagues are.
.
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
04 Nov 2005 02:36:37 PM |
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On 4 Nov 2005 12:09:06 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131134946.076827.301820@g47g2000cwa.googlegroups.com>:
David Jensen wrote:
On 3 Nov 2005 22:34:12 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131086052.216785.257880@g14g2000cwa.googlegroups.com>:
alt.education removed
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Read that again. The Federal government _never_ had the right and the
Constitution, as originally written, said nothing about what the states
could do. The Founding Fathers did not _delegate_ power to the states.
Where are you coming from! :^(
The States gave powers to the Federal government, not the other way
around. Only after the Slaveholder Revolt was put down did the Federal
Government expand its power over the states.
The 10th Amendment _reserved_ unique powers for the States as a
Supreme Court "gaffe" in Jones v. City of Opelika opinion shows; an
opinion that actually had the honesty and guts to mention the 10th
Amendment:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1943
Given the 1st Amendment prohibited the power to address religion to the
federal government by explicitly prohibiting Congress from making
religious laws, the 10th Amendment reasonably reserved this power for
the States. Note that not only are the 10th Amendment sovereign powers
of the States mentioned in the same sentence with our religious
freedoms above but, Jefferson, Mr. "wall of separation" himself, also
hinted about the State's power to legislate religion:
"Our citizens have wisely formed themselves into one nation as to
others and several States as among themselves. To the united nation
belong our external and mutual relations; to each State, severally, the
care of our persons, our property, our reputation and religious
freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262
And the courts have decided that in this conflict, the decision to apply
the Bill of Rights of individuals protects them from state action as
well as federal action. Yes, there was a conflict; yes, it was resolved
by protecting the individual against the state, not by gutting the
meaning of the 14th amendment.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
I'm not a legal expert but I disagree that we are a Common Law system:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
Jefferson's writings as a whole are not opposed to the Common Law.
England had statutes as well. I have no idea what the context of the
Livingston letter was, but it seems to have been quite selectively
edited. I'm curious, how much of the Constitution did Jefferson write?
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
When you quote a dissenting judge, as you quote Justice Swayne here (83
U.S. 36, 129), it is necessary to make it clear to your audience that
this was a dissent, lest you be accused of intentionally trying to
mislead the audience. Given that your source misled you here, you might
want to consider a new source.
You ignored that Jefferson is also a "dissenter" with respect to judges
making the law:
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
There is no context for this letter. Where have you actually quoted it
from? Your reference is not meaningful.
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
That's what judges do. They are accused of doing something else when the
results do not fit the political preconceptions of those who oppose the
outcome of the case.
Pre-Constitution Americans were familiar with the Common Law system in
the sense that you better do what a judge told you to do. The main
reason that we're still acting like a Common Law system in many ways is
probably because people can't change "bad habits" overnight regardless
of a unique new Constitution; people undoubtedly simply continued to do
what judges told them to do. Indeed, given Amenicans at large have
never really understood how Constitutional checks and balances are
supposed to work, judges with a Common Law mentality perhaps found it
convenient to simply keep on calling the shots, sheep-herding the
"commoners" as they saw fit. Again, people probably didn't know any
better.
So you are willing to overturn Marbury. You are willing to allow the
Federal government to ignore the Bill of Rights. You are willing to
allow the Congress and President to do whatever they want, with no
Judicial oversight.
<ROTFL> Considering what I've been posting concerning honest
interpretations of the Constitution, or the lack thereof, your
statement is not even in the ballpark:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
Reposting vague comments does not an argument make.
I guess that it shouldn't surprise me that, given activist judges are
telling separationists and atheists what they want to hear with respect
to unconstitutional absolute church-state separation, separationists
would misrepresent our Constitutional system as a Common Law system
simply to put judges on a pedestal.
Of course, it is Scalia and Thomas who are the activists today.
Scalia and Thomas aren't trying to sweep the Constitution under the
carpet like their activist colleagues are.
That kind of a defense shows exactly why 'activist' is a meaningless
term.
.
|
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| User: "fred" |
|
| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
05 Nov 2005 02:06:13 PM |
|
|
David Jensen wrote:
On 4 Nov 2005 12:09:06 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131134946.076827.301820@g47g2000cwa.googlegroups.com>:
David Jensen wrote:
On 3 Nov 2005 22:34:12 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131086052.216785.257880@g14g2000cwa.googlegroups.com>:
alt.education removed
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Read that again. The Federal government _never_ had the right and the
Constitution, as originally written, said nothing about what the states
could do. The Founding Fathers did not _delegate_ power to the states.
Where are you coming from! :^(
The States gave powers to the Federal government, not the other way
around. Only after the Slaveholder Revolt was put down did the Federal
Government expand its power over the states.
The 10th Amendment _reserved_ unique powers for the States as a
Supreme Court "gaffe" in Jones v. City of Opelika opinion shows; an
opinion that actually had the honesty and guts to mention the 10th
Amendment:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1943
Given the 1st Amendment prohibited the power to address religion to the
federal government by explicitly prohibiting Congress from making
religious laws, the 10th Amendment reasonably reserved this power for
the States. Note that not only are the 10th Amendment sovereign powers
of the States mentioned in the same sentence with our religious
freedoms above but, Jefferson, Mr. "wall of separation" himself, also
hinted about the State's power to legislate religion:
"Our citizens have wisely formed themselves into one nation as to
others and several States as among themselves. To the united nation
belong our external and mutual relations; to each State, severally, the
care of our persons, our property, our reputation and religious
freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262
And the courts have decided that in this conflict, the decision to apply
the Bill of Rights of individuals protects them from state action as
well as federal action. Yes, there was a conflict; yes, it was resolved
by protecting the individual against the state, not by gutting the
meaning of the 14th amendment.
Judicial activism concerning unconstitutional absolute church-state
separation is surviving by lying to the People that the Founding
Fathers had ultimately decided on absolute church-state separation when
the federal BOR was ratified. This is evidenced by the fact that
activist judges depend on Jefferson's Danbury letter to justify their
broad, outcome-driven interpretation of the establishment clause in the
Everson opinion. But there is a major problem with the crapola that
activist judges are telling everybody about what Jefferson and the
Founding Fathers had intended about the government's power to legislate
religion.
The problem is a glaring gaffe in the Cantwell opinion. If the
Founding Father's had decided on absolute church-state separation when
the BOR was ratified, the why does the Cantwell opinion show that the
States uniquely possessed such powers until the 14th Amendment was
ratified?
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
What's even more troubling is that the Cantwell opinion essentially
repealed the 10th Amendment in order for the 14th Amendment to prohibit
certain powers of the States like the 1st Amendment prohibits certain
powers of the federal government. The problem is that the Cantwell
opinion doesn't mention the 10th Amendment. But there is no excuse for
why the Cantwell opinion doesn't mention the 10th Amendment other than
activist Justices regarded the 10th Amendment as a loose canon with
respect to trying to justify their 14th Amendment mischief and swept
the 10th Amendment under the carpet. And there's a reason why the
activist Judges swept the 10th Amendment under the carpet...
Only Congress has the power to amend the Constitution and do things
like repeal amendments. This bottom line is that the Cantwell opinion
is an excellent example of judges unlawfully legislating from the
bench. The Supreme Court robbed the States of their 10th Amendment
guaranteed sovereign power to legislate religion!
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
I'm not a legal expert but I disagree that we are a Common Law system:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
Jefferson's writings as a whole are not opposed to the Common Law.
England had statutes as well. I have no idea what the context of the
Livingston letter was, but it seems to have been quite selectively
edited. I'm curious, how much of the Constitution did Jefferson write?
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
When you quote a dissenting judge, as you quote Justice Swayne here (83
U.S. 36, 129), it is necessary to make it clear to your audience that
this was a dissent, lest you be accused of intentionally trying to
mislead the audience. Given that your source misled you here, you might
want to consider a new source.
You ignored that Jefferson is also a "dissenter" with respect to judges
making the law:
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
There is no context for this letter. Where have you actually quoted it
from? Your reference is not meaningful.
That was a tough one! And I won't deny that the wires have possibly
gotten crossed somewhere either. I didn't find the letter but a
"neutral" web site source of the quote:
http://tinyurl.com/dwq9p
Here's a broader context:
"One single object, if your provision [in the Louisiana Code] attains
it, will entitle you to the endless gratitude of society; that of
restraining judges from unurping legislation. And with no body of men
is this restraint more wanting than with the judges of what is commonly
called our General Government, but what I call our Foreign Department."
--
TITLE: To Edward Livingston.
EDITION: Washington ed. vii, 403.
PLACE: Monticello
DATE: 1825
On the other hand, you're certainly not going to see separationists and
atheists referencing such a letter on the Internet anyway.
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
That's what judges do. They are accused of doing something else when the
results do not fit the political preconceptions of those who oppose the
outcome of the case.
You've got a naive, tunnel vision perspective of judges. Jefferson
essentially said that judges can be power brokers just like anybody
else:
"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."
-Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
Pre-Constitution Americans were familiar with the Common Law system in
the sense that you better do what a judge told you to do. The main
reason that we're still acting like a Common Law system in many ways is
probably because people can't change "bad habits" overnight regardless
of a unique new Constitution; people undoubtedly simply continued to do
what judges told them to do. Indeed, given Amenicans at large have
never really understood how Constitutional checks and balances are
supposed to work, judges with a Common Law mentality perhaps found it
convenient to simply keep on calling the shots, sheep-herding the
"commoners" as they saw fit. Again, people probably didn't know any
better.
So you are willing to overturn Marbury. You are willing to allow the
Federal government to ignore the Bill of Rights. You are willing to
allow the Congress and President to do whatever they want, with no
Judicial oversight.
<ROTFL> Considering what I've been posting concerning honest
interpretations of the Constitution, or the lack thereof, your
statement is not even in the ballpark:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
Reposting vague comments does not an argument make.
The separationist agenda cannot afford for Jefferson ideas to be
properly understood.
I guess that it shouldn't surprise me that, given activist judges are
telling separationists and atheists what they want to hear with respect
to unconstitutional absolute church-state separation, separationists
would misrepresent our Constitutional system as a Common Law system
simply to put judges on a pedestal.
Of course, it is Scalia and Thomas who are the activists today.
Scalia and Thomas aren't trying to sweep the Constitution under the
carpet like their activist colleagues are.
That kind of a defense shows exactly why 'activist' is a meaningless
term.
Don't you have anything better to do than going around claiming that
things that you disagree with are vague and meaningless?
.
|
|
|
| User: "David Jensen" |
|
| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
05 Nov 2005 05:14:24 PM |
|
|
On 5 Nov 2005 12:06:13 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131221173.832787.109610@f14g2000cwb.googlegroups.com>:
David Jensen wrote:
On 4 Nov 2005 12:09:06 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131134946.076827.301820@g47g2000cwa.googlegroups.com>:
David Jensen wrote:
On 3 Nov 2005 22:34:12 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131086052.216785.257880@g14g2000cwa.googlegroups.com>:
alt.education removed
David Jensen wrote:
On 3 Nov 2005 17:31:03 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131067863.888032.242380@g14g2000cwa.googlegroups.com>:
Knickkkers@Hang-up.com wrote:
On 3 Nov 2005 10:20:35 -0800, "fred" <clarma1@gmail.com> wrote:
I never said that the intentions of the Founding Fathers was legally
binding.
Your claim is that Judges deviate from founders writings.
You're twisting my words. :^(
Again, I am claiming that activist Judges and the liberal media are
irresponsibly using Jefferson's Danbury letter to justify their bogus
interpretation of the establishment clause. By referencing Jefferson's
letter, they are misleading people into thinking that the Founding
Father's had decided on absolute church-state separation when the Bill
of Rights was ratified. But the following extract from the Cantwell
opinion shows that the Court had officially indicated that the Founding
Father's had actually delegated the power to legislate religion to the
States when the BOR was ratified:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
Read that again. The Federal government _never_ had the right and the
Constitution, as originally written, said nothing about what the states
could do. The Founding Fathers did not _delegate_ power to the states.
Where are you coming from! :^(
The States gave powers to the Federal government, not the other way
around. Only after the Slaveholder Revolt was put down did the Federal
Government expand its power over the states.
The 10th Amendment _reserved_ unique powers for the States as a
Supreme Court "gaffe" in Jones v. City of Opelika opinion shows; an
opinion that actually had the honesty and guts to mention the 10th
Amendment:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1943
Given the 1st Amendment prohibited the power to address religion to the
federal government by explicitly prohibiting Congress from making
religious laws, the 10th Amendment reasonably reserved this power for
the States. Note that not only are the 10th Amendment sovereign powers
of the States mentioned in the same sentence with our religious
freedoms above but, Jefferson, Mr. "wall of separation" himself, also
hinted about the State's power to legislate religion:
"Our citizens have wisely formed themselves into one nation as to
others and several States as among themselves. To the united nation
belong our external and mutual relations; to each State, severally, the
care of our persons, our property, our reputation and religious
freedom." --Thomas Jefferson: To Rhode Island Assembly, 1801. ME 10:262
And the courts have decided that in this conflict, the decision to apply
the Bill of Rights of individuals protects them from state action as
well as federal action. Yes, there was a conflict; yes, it was resolved
by protecting the individual against the state, not by gutting the
meaning of the 14th amendment.
Judicial activism concerning unconstitutional absolute church-state
separation is surviving by lying to the People that the Founding
Fathers had ultimately decided on absolute church-state separation when
the federal BOR was ratified. This is evidenced by the fact that
activist judges depend on Jefferson's Danbury letter to justify their
broad, outcome-driven interpretation of the establishment clause in the
Everson opinion. But there is a major problem with the crapola that
activist judges are telling everybody about what Jefferson and the
Founding Fathers had intended about the government's power to legislate
religion.
In which cases does the Supreme Court rely on any letters by Jefferson
to come to the conclusions that it does about religious freedom?
The problem is a glaring gaffe in the Cantwell opinion. If the
Founding Father's had decided on absolute church-state separation when
the BOR was ratified, the why does the Cantwell opinion show that the
States uniquely possessed such powers until the 14th Amendment was
ratified?
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
How is this a gaffe? This is the standard understanding of the law.
States were allowed to have established churches if they had still
wanted, up to the adoption of the 14th Amendment. After that, they were
limited in the same way the Federal Government was.
What's even more troubling is that the Cantwell opinion essentially
repealed the 10th Amendment in order for the 14th Amendment to prohibit
certain powers of the States like the 1st Amendment prohibits certain
powers of the federal government. The problem is that the Cantwell
opinion doesn't mention the 10th Amendment. But there is no excuse for
why the Cantwell opinion doesn't mention the 10th Amendment other than
activist Justices regarded the 10th Amendment as a loose canon with
respect to trying to justify their 14th Amendment mischief and swept
the 10th Amendment under the carpet. And there's a reason why the
activist Judges swept the 10th Amendment under the carpet...
How can the 14th Amendment apply without affecting the 10th to a small
degree? But remember, the tenth is about the relationship between the
states and the federal government. The 14th tells us that specific
rights that were held either by the state or the people must be held by
the people.
Only Congress has the power to amend the Constitution and do things
like repeal amendments. This bottom line is that the Cantwell opinion
is an excellent example of judges unlawfully legislating from the
bench. The Supreme Court robbed the States of their 10th Amendment
guaranteed sovereign power to legislate religion!
The tenth does not give them that right, nor does the 14th allow them to
continue it.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
corrupt Justices legislating from the bench.
Could you please explain how any judge in a Common Law system can avoid
being a so-called activist judge?
I'm not a legal expert but I disagree that we are a Common Law system:
"Our peculiar security is in the possession of a written Constitution.
Let us not make it a blank paper by construction." --Thomas Jefferson
to Wilson Nicholas, 1803. ME 10:419
"The true key for the construction of everything doubtful in a law is
the intention of the law-makers. This is most safely gathered from the
words, but may be sought also in extraneous circumstances provided they
do not contradict the express words of the law." --Thomas Jefferson to
Albert Gallatin, 1808. ME 12:59
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
Jefferson's writings as a whole are not opposed to the Common Law.
England had statutes as well. I have no idea what the context of the
Livingston letter was, but it seems to have been quite selectively
edited. I'm curious, how much of the Constitution did Jefferson write?
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
When you quote a dissenting judge, as you quote Justice Swayne here (83
U.S. 36, 129), it is necessary to make it clear to your audience that
this was a dissent, lest you be accused of intentionally trying to
mislead the audience. Given that your source misled you here, you might
want to consider a new source.
You ignored that Jefferson is also a "dissenter" with respect to judges
making the law:
"One single object... [will merit] the endless gratitude of society:
that of restraining the judges from usurping legislation." --Thomas
Jefferson to Edward Livingston, 1825. ME 16:113
There is no context for this letter. Where have you actually quoted it
from? Your reference is not meaningful.
That was a tough one! And I won't deny that the wires have possibly
gotten crossed somewhere either. I didn't find the letter but a
"neutral" web site source of the quote:
http://tinyurl.com/dwq9p
Here's a broader context:
"One single object, if your provision [in the Louisiana Code] attains
it, will entitle you to the endless gratitude of society; that of
restraining judges from unurping legislation. And with no body of men
is this restraint more wanting than with the judges of what is commonly
called our General Government, but what I call our Foreign Department."
Judges don't usurp legislation in the US. I'm glad of that.
.
|
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|
| User: "fred" |
|
| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
05 Nov 2005 11:50:13 PM |
|
|
David Jensen wrote:
<snipped for brevity>
Judicial activism concerning unconstitutional absolute church-state
separation is surviving by lying to the People that the Founding
Fathers had ultimately decided on absolute church-state separation when
the federal BOR was ratified. This is evidenced by the fact that
activist judges depend on Jefferson's Danbury letter to justify their
broad, outcome-driven interpretation of the establishment clause in the
Everson opinion. But there is a major problem with the crapola that
activist judges are telling everybody about what Jefferson and the
Founding Fathers had intended about the government's power to legislate
religion.
In which cases does the Supreme Court rely on any letters by Jefferson
to come to the conclusions that it does about religious freedom?
The Supreme Court used Jefferson's writings to help justify its
conclusions about religious freedom related issues in the Reynolds and
Everson opinions, and possibly other opinions too. But also note that
Everson was a pivotal opinion.
The problem is a glaring gaffe in the Cantwell opinion. If the
Founding Father's had decided on absolute church-state separation when
the BOR was ratified, the why does the Cantwell opinion show that the
States uniquely possessed such powers until the 14th Amendment was
ratified?
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
How is this a gaffe? This is the standard understanding of the law.
States were allowed to have established churches if they had still
wanted, up to the adoption of the 14th Amendment. After that, they were
limited in the same way the Federal Government was.
This is not how the 14th Amendment works. First of all, outcome driven
Justices decided that the 14th Amendment made the 1st Amendment's
prohibitions on government applicable to the States. This is evidenced
by this extract from the Cantwell opinion:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
But where is the 10th Amendment?
Well the Justices essentially repealed the 10th Amendment by
implication with the above extract. (Note that that Justices didn't
have the guts to mention the 10th Amendment in the Cantwell opinion.)
The problem is that any amendment can only be repealed by Congress and
not a mere Court opinion. You can argue that the 10th Amendment didn't
have anything to do with our 1st Amendment protected freedoms but...
Along comes some honest, Constitution defending Justice and, not
willing to play the absolute church-state separation game, noted that
the 10th Amendment was still alive and kicking as evidenced by this
extract from the Opelika opinion:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1942
Note that the above extract references our 1st Amendment rights in
context with the 10th Amendment sovereign powers of the States and the
14th Amendment's protections of personal federal rights. So the
extract actually indicates what I've been saying all along about the
10th and 14th Amendments. It's the job of Justices to balance the
10th Amendment sovereign powers of the States with the 14th Amendment
protections of personal federal rights. But it's not the job of
Justices to amend the Constitution with an implied repeal of the 10th
Amendment as they did in the Cantwell opinion.
And to really undermine the credibility of our Court system, other
activist Justices came along and, foolishly forgetting to corroborate
their story with the Cantwell opinion, actually started using
Jefferson's "wall of separation" writing to justify absolute
church-state separation as if this was actually what the Founding
Fathers had in mind. And things actually go downhill from here.
Believe it or not, the nervous and corrupt Justices who gave us new
"insight" to the establishment clause in the Everson opinion screwed up
big time. The Justices were evidently so scared that people might
catch their bluff about their "new and improved" but *unconstitutional*
interpretation of the establishment clause that they unthinkingly
credited BOTH the idea that absolute church-state separation was what
the Founding Fathers had in mind AND the idea that the States did have
such powers until the Cantwell opinion unlawfully repealed the 10th
Amendment by implication; only Congress has the power to repeal
constitutional amendments.
What's even more troubling is that the Cantwell opinion essentially
repealed the 10th Amendment in order for the 14th Amendment to prohibit
certain powers of the States like the 1st Amendment prohibits certain
powers of the federal government. The problem is that the Cantwell
opinion doesn't mention the 10th Amendment. But there is no excuse for
why the Cantwell opinion doesn't mention the 10th Amendment other than
activist Justices regarded the 10th Amendment as a loose canon with
respect to trying to justify their 14th Amendment mischief and swept
the 10th Amendment under the carpet. And there's a reason why the
activist Judges swept the 10th Amendment under the carpet...
How can the 14th Amendment apply without affecting the 10th to a small
degree? But remember, the tenth is about the relationship between the
states and the federal government. The 14th tells us that specific
rights that were held either by the state or the people must be held by
the people.
The fact that some states were faithfully protecting the federal rights
of their citizens before the 14th Amendment was made regardless that
other states were abridging those rights shows that a state can use its
10th Amendment protected powers to legislate religion beneficially and
still respect the federal rights of its citizens. Its only
separationists and atheists, perhaps yourself included, who are arguing
with basis that being able to do both is impossible.
Only Congress has the power to amend the Constitution and do things
like repeal amendments. This bottom line is that the Cantwell opinion
is an excellent example of judges unlawfully legislating from the
bench. The Supreme Court robbed the States of their 10th Amendment
guaranteed sovereign power to legislate religion!
The tenth does not give them that right, nor does the 14th allow them to
continue it.
Says who? You?
Again, noting that the Opelika opinion mentions the 10th Amendment in
context with 1st Amendment freedom of religion, the Opelika opinion
indicated that Justices are to balance the 10th Amendment protected
sovereign powers of the States with the 14th Amendment protected
federal rights of US citizens.
Not only did the activist Justices not have the guts to reference the
10th Amendment in the Cantwell opinion, but the above extract shows
that the Court effectively repealed the 10th Amendment. The problem is
that only Congress has the power to repeal amendments by lawfully
amending the Constitution. So the above extract is an example of
<snipped for brevity>
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| User: "David Jensen" |
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| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
06 Nov 2005 09:15:33 AM |
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On 5 Nov 2005 21:50:13 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131256213.213112.188190@o13g2000cwo.googlegroups.com>:
David Jensen wrote:
<snipped for brevity>
Judicial activism concerning unconstitutional absolute church-state
separation is surviving by lying to the People that the Founding
Fathers had ultimately decided on absolute church-state separation when
the federal BOR was ratified. This is evidenced by the fact that
activist judges depend on Jefferson's Danbury letter to justify their
broad, outcome-driven interpretation of the establishment clause in the
Everson opinion. But there is a major problem with the crapola that
activist judges are telling everybody about what Jefferson and the
Founding Fathers had intended about the government's power to legislate
religion.
In which cases does the Supreme Court rely on any letters by Jefferson
to come to the conclusions that it does about religious freedom?
The Supreme Court used Jefferson's writings to help justify its
conclusions about religious freedom related issues in the Reynolds and
Everson opinions, and possibly other opinions too. But also note that
Everson was a pivotal opinion.
Was this writing necessary? Were they relying on it? No.
The problem is a glaring gaffe in the Cantwell opinion. If the
Founding Father's had decided on absolute church-state separation when
the BOR was ratified, the why does the Cantwell opinion show that the
States uniquely possessed such powers until the 14th Amendment was
ratified?
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
How is this a gaffe? This is the standard understanding of the law.
States were allowed to have established churches if they had still
wanted, up to the adoption of the 14th Amendment. After that, they were
limited in the same way the Federal Government was.
This is not how the 14th Amendment works.
Read the case law, it is clearly how the 14th Amendment works. You may
not like how it is working, but this is how it works.
First of all, outcome driven
Justices decided that the 14th Amendment made the 1st Amendment's
prohibitions on government applicable to the States. This is evidenced
by this extract from the Cantwell opinion:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
So you have just given an example of how it works.
But where is the 10th Amendment?
Once again, you ignore the fact that the 10th Amendment does not give
unlimited power to the states, but to the states and the people. The
rights of the states are now limited by the Bill of Rights through the
14th Amendment, so those rights are held by the people alone.
Well the Justices essentially repealed the 10th Amendment by
implication with the above extract. (Note that that Justices didn't
have the guts to mention the 10th Amendment in the Cantwell opinion.)
The problem is that any amendment can only be repealed by Congress and
not a mere Court opinion. You can argue that the 10th Amendment didn't
have anything to do with our 1st Amendment protected freedoms but...
Along comes some honest, Constitution defending Justice and, not
willing to play the absolute church-state separation game, noted that
the 10th Amendment was still alive and kicking as evidenced by this
extract from the Opelika opinion:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1942
Yes, there was a conflict of rights. Only you claim that the Tenth
Amendment was repealed. Since I cannot find such language in the
decision, please point it out. The Court had a particularly hard time
balancing religious freedom and state regulatory power, so much trouble
that they had a rehearing on it and decided that the First Amendment did
trump the Tenth, that religions cannot be regulated like other
businesses.
Note that the above extract references our 1st Amendment rights in
context with the 10th Amendment sovereign powers of the States and the
14th Amendment's protections of personal federal rights. So the
extract actually indicates what I've been saying all along about the
10th and 14th Amendments. It's the job of Justices to balance the
10th Amendment sovereign powers of the States with the 14th Amendment
protections of personal federal rights. But it's not the job of
Justices to amend the Constitution with an implied repeal of the 10th
Amendment as they did in the Cantwell opinion.
They did not. You make that assertion, but have not supported it.
And to really undermine the credibility of our Court system, other
activist Justices came along and, foolishly forgetting to corroborate
their story with the Cantwell opinion, actually started using
Jefferson's "wall of separation" writing to justify absolute
church-state separation as if this was actually what the Founding
Fathers had in mind. And things actually go downhill from here.
Your attack on the Supreme Court shows a lack of knowledge of the
history of these lines of cases.
Believe it or not, the nervous and corrupt Justices who gave us new
"insight" to the establishment clause in the Everson opinion screwed up
big time. The Justices were evidently so scared that people might
catch their bluff about their "new and improved" but *unconstitutional*
interpretation of the establishment clause that they unthinkingly
credited BOTH the idea that absolute church-state separation was what
the Founding Fathers had in mind AND the idea that the States did have
such powers until the Cantwell opinion unlawfully repealed the 10th
Amendment by implication; only Congress has the power to repeal
constitutional amendments.
I see attacks on judicial decisions, but no actual discussion of the
interpretation of the 14th amendment.
What's even more troubling is that the Cantwell opinion essentially
repealed the 10th Amendment in order for the 14th Amendment to prohibit
certain powers of the States like the 1st Amendment prohibits certain
powers of the federal government. The problem is that the Cantwell
opinion doesn't mention the 10th Amendment. But there is no excuse for
why the Cantwell opinion doesn't mention the 10th Amendment other than
activist Justices regarded the 10th Amendment as a loose canon with
respect to trying to justify their 14th Amendment mischief and swept
the 10th Amendment under the carpet. And there's a reason why the
activist Judges swept the 10th Amendment under the carpet...
How can the 14th Amendment apply without affecting the 10th to a small
degree? But remember, the tenth is about the relationship between the
states and the federal government. The 14th tells us that specific
rights that were held either by the state or the people must be held by
the people.
The fact that some states were faithfully protecting the federal rights
of their citizens before the 14th Amendment was made regardless that
other states were abridging those rights shows that a state can use its
10th Amendment protected powers to legislate religion beneficially and
still respect the federal rights of its citizens. Its only
separationists and atheists, perhaps yourself included, who are arguing
with basis that being able to do both is impossible.
How do states protect the First Amendment rights of citizens by
discriminating against Jehovah's Witnesses? You appear to be arguing
that it is constitutional to discriminate against the Jehovah's
Witnesses. The Tenth Amendment is still valid insofar as the States do
not violate the rights of their citizens.
Only Congress has the power to amend the Constitution and do things
like repeal amendments. This bottom line is that the Cantwell opinion
is an excellent example of judges unlawfully legislating from the
bench. The Supreme Court robbed the States of their 10th Amendment
guaranteed sovereign power to legislate religion!
The tenth does not give them that right, nor does the 14th allow them to
continue it.
Says who? You?
Again, noting that the Opelika opinion mentions the 10th Amendment in
context with 1st Amendment freedom of religion, the Opelika opinion
indicated that Justices are to balance the 10th Amendment protected
sovereign powers of the States with the 14th Amendment protected
federal rights of US citizens.
You are quite selective in reading the 10th Amendment:
"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."
Please note, that powers can be prohibited to the states, and have been,
not only were states prohibited from a few actions in the Constitution
itself, but the 14th Amendment added prohibitions:
"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."
....
.
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| User: "fred" |
|
| Title: Re: JUDICIAL ACTIVISM: THE CANTWELL CASE; Cantwell fails the 10th Amendment test! |
07 Nov 2005 09:43:52 PM |
|
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David Jensen wrote:
On 5 Nov 2005 21:50:13 -0800, in alt.atheism
"fred" <clarma1@gmail.com> wrote in
<1131256213.213112.188190@o13g2000cwo.googlegroups.com>:
David Jensen wrote:
<snipped for brevity>
Judicial activism concerning unconstitutional absolute church-state
separation is surviving by lying to the People that the Founding
Fathers had ultimately decided on absolute church-state separation when
the federal BOR was ratified. This is evidenced by the fact that
activist judges depend on Jefferson's Danbury letter to justify their
broad, outcome-driven interpretation of the establishment clause in the
Everson opinion. But there is a major problem with the crapola that
activist judges are telling everybody about what Jefferson and the
Founding Fathers had intended about the government's power to legislate
religion.
In which cases does the Supreme Court rely on any letters by Jefferson
to come to the conclusions that it does about religious freedom?
The Supreme Court used Jefferson's writings to help justify its
conclusions about religious freedom related issues in the Reynolds and
Everson opinions, and possibly other opinions too. But also note that
Everson was a pivotal opinion.
Was this writing necessary? Were they relying on it? No.
But look at how the activist Justices twisted what Jefferson said about
the establishment clause:
"In the words of Jefferson, the clause against establishment of
religion by law was intended to erect 'a wall of separation between
Church and State.' Reynolds v. United States, supra, 98 U.S. at page
164." -- Everson v. Board of Education of Ewing TP. 1947.
Compare the sleight-of-hand paraphrase of Jefferson's words above to
Jefferson's actual words:
"Believing with you that religion is a matter which lies solely between
man and his God; that he owes account to none other for his faith or
his worship; that the legislative powers of the government reach
actions only, and not opinions,-I contemplate with sovereign reverence
that act of the whole American people which declared that their
legislature should 'make no law respecting an establishment of religion
or prohibiting the free exercise thereof,' thus building a wall of
separation between church and State." -- Jefferson to Danbury Baptist
Assaciation 1801.
Note that outcome-driven Everson Justices didn't include Jefferson's
"the whole American people which declared that their legislature" words
in their quote, evidently to sidestep the fact that Jefferson was
referring to Congress, not to the States. So not only did the corrupt
Everson Justices read things into the establishment clause that weren't
there but they justified their crapola about the establishment clause
by also reading things into Jefferson's writing that weren't there
either. Interpolating limitations like this is not the Court's job:
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
The problem is a glaring gaffe in the Cantwell opinion. If the
Founding Father's had decided on absolute church-state separation when
the BOR was ratified, the why does the Cantwell opinion show that the
States uniquely possessed such powers until the 14th Amendment was
ratified?
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
How is this a gaffe? This is the standard understanding of the law.
States were allowed to have established churches if they had still
wanted, up to the adoption of the 14th Amendment. After that, they were
limited in the same way the Federal Government was.
This is not how the 14th Amendment works.
Read the case law, it is clearly how the 14th Amendment works. You may
not like how it is working, but this is how it works.
The only reason that the American People are "prisoners" of conscious
concerning the baloney that outcome-driven activist Justices are
telling them about the establishment clause and 14th Amendment is
because the People themselves are essentially constitutionally
illiterate.
First of all, outcome driven
Justices decided that the 14th Amendment made the 1st Amendment's
prohibitions on government applicable to the States. This is evidenced
by this extract from the Cantwell opinion:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
So you have just given an example of how it works.
My example pertains only to the unconstitutional opinions of
scandalous, outcome-driven activist Justices who look for excuses to
stifle 1st Amendment freedom of religious expression.
But where is the 10th Amendment?
Once again, you ignore the fact that the 10th Amendment does not give
unlimited power to the states, but to the states and the people. The
rights of the states are now limited by the Bill of Rights through the
14th Amendment, so those rights are held by the people alone.
Some States evidently did believe that the 10th Amendment gave them
unlimited powers before the 14th Amendment was made. But section 1 of
the 14th Amendment then made it mandatory for all the States to respect
the private federal rights of US citizens, something that all of the
States should have been doing anyway. In fact, the Opelika opinion
shows that Justices are now expected to balance the 10th Amendment
protected sovereign powers of the States with the 14th Amendment
protected personal federal rights of US citizens.
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1942
Justices are not supposed to use the 14th Amendment as an excuse to
wipe out the 10th Amendment protected sovereign rights of the States as
activist Justices are doing.
Well the Justices essentially repealed the 10th Amendment by
implication with the above extract. (Note that that Justices didn't
have the guts to mention the 10th Amendment in the Cantwell opinion.)
The problem is that any amendment can only be repealed by Congress and
not a mere Court opinion. You can argue that the 10th Amendment didn't
have anything to do with our 1st Amendment protected freedoms but...
Along comes some honest, Constitution defending Justice and, not
willing to play the absolute church-state separation game, noted that
the 10th Amendment was still alive and kicking as evidenced by this
extract from the Opelika opinion:
"Conflicts in the exercise of rights arise and the conflicting forces
seek adjustments in the courts, as do these parties, claiming on the
one side the freedom of religion, speech and the press, guaranteed by
the Fourteenth Amendment,11 and on the other the right to employ the
sovereign power explicitly reserved to the State by the Tenth Amendment
to ensure orderly living without which constitutional guarantees of
civil liberties would be a mockery." -- Jones v. City of Opelika 1942
Yes, there was a conflict of rights. Only you claim that the Tenth
Amendment was repealed. Since I cannot find such language in the
decision, please point it out. The Court had a particularly hard time
balancing religious freedom and state regulatory power, so much trouble
that they had a rehearing on it and decided that the First Amendment did
trump the Tenth, that religions cannot be regulated like other
businesses.
Your assertion that I claimed that the 10th Amendment was repealed
shows that you have a major reading comprehension problem; you are
objectively impaired. It was activist Justices who unlawfully
implicitly repealed the 10th Amendment as the following extract from
the Cantwell opinion shows:
"The First Amendment declares that Congress shall make no law
respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the
legislatures of the states as incompetent as Congress to enact such
laws." -- Cantwell v. State of Connecticut 1940.
The fact that the Cantwell Justices swept the 10th Amendment under the
carpet with an implied, unlawful repeal is also evidenced by the fact
that the Justices didn't have the guts to mention the 10th Amendment
anywhere in the Cantwell opinion. This is undoubtedly because only
Congress can lawfully repeal constitutional amendments.
Note that the above extract references our 1st Amendment rights in
context with the 10th Amendment sovereign powers of the States and the
14th Amendment's protections of personal federal rights. So the
extract actually indicates what I've been saying all along about the
10th and 14th Amendments. It's the job of Justices to balance the
10th Amendment sovereign powers of the States with the 14th Amendment
protections of personal federal rights. But it's not the job of
Justices to amend the Constitution with an implied repeal of the 10th
Amendment as they did in the Cantwell opinion.
They did not. You make that assertion, but have not supported it.
You ignore that I have repeatedly supported my statement by noting the
folly of the Everson opinion. Again, the activist Everson Judges
foolishly referenced two contradictory extracts from previous opinions
to justify their "new and improved" but *unconstitutional*
interpretation of the establishment clause. The Cantwell opinion with
its implied repeal of the 10th Amendment by the 14th Amendment is one
of those references.
And to really undermine the credibility of our Court system, other
activist Justices came along and, foolishly forgetting to corroborate
their story with the Cantwell opinion, actually started using
Jefferson's "wall of separation" writing to justify absolute
church-state separation as if this was actually what the Founding
Fathers had in mind. And things actually go downhill from here.
Your attack on the Supreme Court shows a lack of knowledge of the
history of these lines of cases.
You always fail to substantiate your assertions about the points I
make. You essentially justify your assertions with a "because I said
so".
Believe it or not, the nervous and corrupt Justices who gave us new
"insight" to the establishment clause in the Everson opinion screwed up
big time. The Justices were evidently so scared that people might
catch their bluff about their "new and improved" but *unconstitutional*
interpretation of the establishment clause that they unthinkingly
credited BOTH the idea that absolute church-state separation was what
the Founding Fathers had in mind AND the idea that the States did have
such powers until the Cantwell opinion unlawfully repealed the 10th
Amendment by implication; only Congress has the power to repeal
constitutional amendments.
I see attacks on judicial decisions, but no actual discussion of the
interpretation of the 14th amendment.
It is prudent of activist judges not to talk about the 14th Amendment
and especially the 10th Amendment. Both these Amendment's would be
loose canons with respect to getting the public's attention. Indeed,
consider that all we seem to hear about with respect to church-state
separation issues from separationists and the liberal media is the
intentions of the Founding Fathers concerning the establishment clause
and Jefferson's "wall of separation".
What's even more troubling is that the Cantwell opinion essentially
repealed the 10th Amendment in order for the 14th Amendment to prohibit
certain powers of the States like the 1st Amendment prohibits certain
powers of the federal government. The problem is that the Cantwell
opinion doesn't mention the 10th Amendment. But there is no excuse for
why the Cantwell opinion doesn't mention the 10th Amendment other than
activist Justices regarded the 10th Amendment as a loose canon with
respect to trying to justify their 14th Amendment mischief and swept
the 10th Amendment under the carpet. And there's a reason why the
activist Judges swept the 10th Amendment under the carpet...
How can the 14th Amendment apply without affecting the 10th to a small
degree? But remember, the tenth is about the relationship between the
states and the federal government. The 14th tells us that specific
rights that were held either by the state or the people must be held by
the people.
The fact that some states were faithfully protecting the federal rights
of their citizens before the 14th Amendment was made regardless that
other states were abridging those rights shows that a state can use its
10th Amendment protected powers to legislate religion beneficially and
still respect the federal rights of its citizens. Its only
separationists and atheists, perhaps yourself included, who are arguing
with basis that being able to do both is impossible.
How do states protect the First Amendment rights of citizens by
discriminating against Jehovah's Witnesses? You appear to be arguing
that it is constitutional to discriminate against the Jehovah's
Witnesses. The Tenth Amendment is still valid insofar as the States do
not violate the rights of their citizens.
What a copout reply. :^(
We never hear of the 10th Amendment because activist judges cannot
afford for people to start talking about how the 10th Amendment
protected sovereign powers of the states mysteriously disappeared.
Only Congress has the power to amend the Constitution and do things
like repeal amendments. This bottom line is that the Cantwell opinion
is an excellent example of judges unlawfully legislating from the
bench. The Supreme Court robbed the States of their 10th Amendment
guaranteed sovereign power to legislate religion!
The tenth does not give them that right, nor does the 14th allow them to
continue it.
Says who? You?
Again, noting that the Opelika opinion mentions the 10th Amendment in
context with 1st Amendment freedom of religion, the Opelika opinion
indicated that Justices are to balance the 10th Amendment protected
sovereign powers of the States with the 14th Amendment protected
federal rights of US citizens.
You are quite selective in reading the 10th Amendment:
"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."
Please note, that powers can be prohibited to the states, and have been,
not only were states prohibited from a few actions in the Constitution
itself, but the 14th Amendment added prohibitions:
"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 14th Amendment doesn't address how the 1st and 10th Amendments
divide government powers between the federal and State governments.
Neither does the 14th Amendment repeal the 10th Amendment. Both of
these points concerning the 14th and 10th Amendments are evidenced by
the glaring fact that the 14th Amendment doesn't reference the 10th
Amendment at all. So the slight-of-hand with respect to the Cantwell
opinion implying that the 14th Amendment somehow repealed the 10th
Amendment is nothing less than an abuse of Judicial power. This is
because it's not the job of justices to interpolate limitations in
laws, such as claiming that the 14th Amendment somehow applied the 1st
Amendment's prohibitions on certain federal government powers to the
States. Again:
"This court has no authority to interpolate a limitation that is
neither expressed nor implied. Our duty is to execute the law, not to
make it." -- Slaughterhouse Cases 1872
You are also ignoring that many States had successfully balanced their
10th Amendment protected sovereign rights with the 1st Amendment's
protection of basic rights without the 14th Amendment. So the crapola
in the Cantwell opinion that the States were incompetant to have such
powers is another activist lie.
...
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