Re: Moore rights

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Topic:	Religions > Atheism
User:	""
Date:	25 Sep 2003 02:57:49 PM
Object:	Re: Moore rights

(StNeel) wrote:

:|>From: namegoeshere

:|>Not to mention the FACT
:|>that the 1st ammendment applies to the states.
:|
:|Please quote the law that says so. Otherwise it remains your opinion.

Well, it seems that his opinion has caught on with the USSC as well as most
other courts in this nation, in short it is law and has been for a good
many years now.
.

User: "Arturo Magidin"
Title: Re: Moore rights	25 Sep 2003 03:03:00 PM

In article <f5i6nv87ekummqfdm5n5594ec0dp4j0q8n@4ax.com>,
<buckeye-ELO@nospam.net> wrote:

stneel@aol.com (StNeel) wrote:

:|>From: namegoeshere

:|>Not to mention the FACT
:|>that the 1st ammendment applies to the states.
:|
:|Please quote the law that says so. Otherwise it remains your opinion.

Well, it seems that his opinion has caught on with the USSC as well as most
other courts in this nation, in short it is law and has been for a good
many years now.

But in case he wants actual case law, here are some of the relevant
quotes:
"The 'establishment of religion' clause of the First Amendment means
at least this: Neither a state nor the Federal Government can set
up a church. Neither can pass laws which aid one religion, aid all
religions, or prefer one religion over another. Neither can force
nor influence a person to go to or to remain away from church
against his will or force him to profess a belief or disbelief in
any religion. No person can be punished for entertaining or
professing religious beliefs or disbeliefs, for church attendance
or non-attendance. No tax in any amount, large or small, can be
levied to support any religious activities or institutions,
whatever they may be called, or whatever form they may adopt to
teach or practice religion. Neither a state nor the Federal
Government can, openly or secretly, participate in the affairs
of any religious organizations or groups and vice versa. 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 (98 U.S. 145)."
--Justice Hugo Black, Opinion for the Court in Everson v. Board
of Education of Ewing TP., 330 U.S. 1 (1947)
"They argue that, historically, the First Amendment was intended
to forbid only government preference of one religion over
another, not an impartial governmental assitance to all
religions. In addition, they ask that we distinguish or overrule
our holding in the Everson case that the Fourteenth Amendment
made the 'establishment of religion' clause of the First
Amendment applicable as a prohibition against the States.
After giving full consideration to the arguments presented,
we are unable to accept either of these contentions."
-- Justice Hugo Black, opinion for the Court in Illinois ex
rel. McCollum v. Board of Education of School District,
333 U.S. 203 (1948) at 211.
"We repeat and again reaffirm that neither a State nor the
Federal Government can constitutionally force a person 'to
profess a belief or disbelief in any religion.' Neither can
constitutionally pass laws or impose requirements which aid
all religions as against nonbelievers, and neither can aid
those religions based on a belief in the existence of God
as against those religions founded on different beliefs."
-- Justice Hugo Black, opinion for the Court in Torcaso
v. Watkins, 367 U.S. 488 (1961) at 495.
======================================================================
"It's not denial. I'm just very selective about
what I accept as reality."
--- Calvin ("Calvin and Hobbes")
======================================================================
Arturo Magidin
magidin@math.berkeley.edu
.

User: "Arturo Magidin"
Title: Re: Moore rights	26 Sep 2003 01:39:27 PM

(StNeel) wrote in message news:<20030925202046.02944.00000191@mb-m26.aol.com>...
[.snip.]

Another dispute/debate (which is used sometimes) is that Justice Black's
'views' in these quotes here are orbiter dictum ( a judge's remarks added to
show his thinking but not part of the actual ruling). Judges tend to ramble and
this results in 'fuzzy' law which is not good for the nation all too often. I
assume that Black here used the 1st Amd as his 'cited' law in this case. But as
I read it - the 1st states *Congress* cannot do all this - it said nothing
about the states. If he cited more law then I would be interested in it (but
each must do our own research so I feel that I must do mine also).

Your statement betrays that you did not bother to actually read the
quotes I provided, let alone go check out the opinions before you
decided to mouth off.
The second quote I provided, part of the Opinion for the Court in
Illinois ex rel. McCollum v. Board of Education of School District,333
U.S. 203 (1948) refered ->explicitly<- to the issue of applying the
1st Amendment to the States. It is a consequence of the 14th
Amendment.
Here is again, try reading it this time:
"In addition, they ask that we distinguish or overrule
our holding in the Everson case that the Fourteenth Amendment
made the 'establishment of religion' clause of the First
Amendment applicable as a prohibition against the States.
After giving full consideration to the arguments presented,
we are unable to accept either of these contentions."
The 14th Amendment expanded the applicability of the Bill of Rights,
both through the Priviledges and Immunities clause, and through the
Due Process clause.
Black DID provide a legal rational for applying the Establishment
Clause to the states; he also refers to a lot of opinions regarding
incorporation. If you also read the dissent in Everson, by Justice
Jackson, you will see that none of the dissenters disagreed with the
basic principle of applying the Establishment Clause as binding on the
states through the 14th Amendment.
Now, to facilitate your "study", assuming you actually do wish to
learn ->something<-, you can go to FindLaw and read the opinions. The
three opinions I quoted are:
Everson v. Board of Education of Ewing TP., 330 U.S. 1 (1947)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=330&page=1
McCollum v. Board of Education of School District,333 U.S. 203 (1948)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=333&page=203
Torcaso v. Watkins, 367 U.S. 488 (1961)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=367&page=488
At the top you can get a link to "Cases citing this case: Supreme
Court" in case you want to go see if the main finding of applicability
has been denied or not.
As for Chief Justice Rehnquist, you do NOT have to go far into the
past to find him agreeing with the principle that the 1st Amendment
applies to the states, even while modifying just HOW the Establishment
Clause applies to government action. Just last year, in Virginia v.
Black (the cross burning case), he joined O'Connor in ruling a state
law unconstitutional on First Amendment grounds. In Zelman v.
Simmons-Harris (the school voucher case from the 2001-2002 term), his
Opinion for the Court he writes:
" The Establishment Clause of the First Amendment, applied to the
States through the Fourteenth Amendment, prevents a State from
enacting laws that have the "purpose" or "effect" of advancing or
inhibiting religion. Agostini v. Felton, 521 U.S. 203, 222�223
(1997)"
-- Chief Justice Rehnquist, Opinion for the Court in Zelman v.
Simmons-Harris 000 U.S. 00-1751 (2002)
You can find that opinion also at FindLaw, in
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=00-1751
If you know the citation number, or the parties, of a Supreme Court
Opinion, you can get the text at FindLaw by going to
http://www.findlaw.com/casecode/supreme.html
and filling in their search page.
So if you are trying to insinuate that Chief Justice Rehnquist favors
disincorporating the Establishment Clause, then you are quite simply
wrong. It is well known that both CJ Rehnquist and Justice Scalia
disagree with the broad interpretation of the clause given by Justice
Black and by a multitude of others, but neither of them has ever
hinted that they favor disincorporation. They have always simply
limited applicability and "distinguished" situations.
Again, I am NOT addressing whether the acts of Judge Moore constitute
a violation of the Establishment Clause, but only your stubbornly
ignorant claim that the Establishment Clause does not, through the
14th Amendment, apply to the states.
Arturo Magidin, sans .sig
.

User: "Arturo Magidin"
Title: Re: Moore rights	27 Sep 2003 07:18:39 PM

(StNeel) wrote in message news:<20030926193038.00838.00000219@mb-m17.aol.com>...

From:

(Arturo Magidin)

Your statement betrays that you did not bother to actually read the
quotes I provided, let alone go check out the opinions before you
decided to mouth off.

AH Artuo - getting nasty it seems.

Hmm. St Neel, demonstrating he would rather ignore facts and try
sophistry.

No - I do not feel constrained to rush off
and instantly check your verasity (perhaps I should - perhaps you lie - I was
giving you the benefit of the doubt).

Learn to spell, will you? It's annoying, particularly when you cannot
even bother to type my name correctly.
Why bother checking the facts? You ignored them anyway. You don't care
whether they are true or not, because nothing you said takes them into
account. Instead, you just repeated the same ignorant statements
despite the clear evidence that you were just plain wrong.
So stop posturing.

Here is again, try reading it this time:

Opinion for the Court in
Illinois ex rel. McCollum v. Board of Education of School District,333
U.S. 203 (1948) refered ->explicitly<- to the issue of applying the
1st Amendment to the States. It is a consequence of the 14th
Amendment.

So? I adressed this in an earlier quote immediately before you double posted.

No, you did not address it. You claimed, explicitly, that the ONLY
thing Justice Black was basing his argument on was the 1st Amendment.
This quote makes it clear that he also based his argument on the 14th
Amendment. Thus, your did not "address it", except to misrepresent the
situation in order to be able to ignore the facts.
So, you are quite simply lying here.
That's not a personal attack, that's a simple fact: you are lying.

As you say (did you lie?) that Ch Justice John Marshall held in 1833 the exact
opposite. Hmmm -

No, Chief Justice John Marshall could not hold the "exact opposite",
since in 1833 the 14th Amendment (part of the ruling) did not exist.
Try ->thinking<- next time, will you?

Now, to facilitate your "study", assuming you actually do wish to
learn ->something<-, you can go to FindLaw and read the opinions.

Hey Berkeley.edu - you are not my teacher.

Thank heavens. It looks like you are not interested in learning
anything anyway.

I know about Findlaw.

Not enough to know where the library is. You also need to check out
the books and read them if you want to learn something.

Sigh- another edu stuffed shirt.

Sigh, another ignoramus with an inferiority complex who thinks the
best way to deal with it is to insult those of use who actually make
it our life's work to pursue knowledge.
It's "Dr. Magidin" to you, son.

As for Chief Justice Rehnquist, you do NOT have to go far into the
past to find him agreeing with the principle that the 1st Amendment
applies to the states,

Again your red herring -

No, YOUR red herring. I was talking about incoroporation. You invoked
Rehnquist and insinuated that "it" could cease to be the law of the
land "tomarrow". If you were not talking about incorporation, then
were engaging in red herrings and non sequiturs.
Were you?

Just cool it on the testy insult stuff (yawn).

Stop ignoring the facts, then. It tends to make me annoyed when I
spend my time providing them only to have idiots like you drive
roughshod over them, and then get annoyed when I point out that you
are purposely ignoring them (and lying about it to boot).
Arturo Magidin, sans .sig
.

User: "Carol Lee Smith"
Title: Re: Moore rights	28 Sep 2003 01:11:18 PM

On 28 Sep 2003, StNeel wrote:

From:

(Arturo Magidin)

& StNeel
This time I will reply in a more reasoned flame style - so those who wish to
learn about the Constitution will probably not read it.

It appears you have posted in a venue where it is unlikely to be read by
the individual to whom you address your response.
Why is that?

Arturo -Your statement betrays that you did not bother to actually read the
quotes I provided, let alone go check out the opinions before you
decided to mouth off.

StNeel AH Artuo - getting nasty it seems.

Again note the mispelled name. Arturo is not a common name I keep trying
Arthur. BUt it was not deliberate. But - as Arturo flames me more - I just
might stop feeling that way. A tit-for tat kinda thing.

Hmm. St Neel, demonstrating he would rather ignore facts and try
sophistry.

No - the facts are clear. Your trouble is that my opinion has not changed under
your attack. I suggest you realize what is fact and what is opinion. We each
can hold whatever opinion we wish as free men - a concept which seems to
distress you.

Learn to spell, will you? It's annoying, particularly when you cannot
even bother to type my name correctly.

True - I had a secretary for many years to handle that. Do you have a secretary
to handle the mechanics of this small stuff? I can't type and I can't spell to
perfection.I was paid to think. Unfortunately you can't reason and you can't
think. You seem to accept any 'authority' which jibes with your preconcieved
notions. But of course, you pretend you are an authority in some circles. I
pity your students. Do they shine your shoes?

Instead, you just repeated the same ignorant statements
despite the clear evidence that you were just plain wrong.

StNeel - Q. When was the 1st and 10th Amd legally revoked or amended by proper
procedure as given by the US Contitution? I can only disagree with you that
wordsmithing 'incorportated' by a small bunch of unelected men cannot subtitute
for the legal procedure. Even the legality of passing of the 14th Amd is in
doubt accoring to several opinion of rather smart folks. (Hint - refer toa good
history book on the Reconstruction Era after the Civil War and its passions.
But I feel this is over your head.)
<snip some as unfruitful as Arturo is in full flame and it gets logically messy
which Arturo can not follow properly>

You claimed, explicitly, that the ONLY
thing Justice Black was basing his argument on was the 1st Amendment.

We were discussing the 1st - remember? He did base his case (a specific
dispute) on his interpretation of the 1st among others. In fact this entire
thread is about the 1st - but Arturo appearently gets it from alt.atheist or
somewhere. He wanders about in the woods a lot it seems to me.

So, you are quite simply lying here.

Poor lost soul - opps perhaps that is offesive to him. Hey Arturo - do you
believe in souls? Just an honest question.

StNeel- >As you say (did you lie?) that Ch Justice John Marshall held in

1833 the exact opposite. Hmmm -

Arturo - No, Chief Justice John Marshall could not hold the "exact opposite",
since in 1833 the 14th Amendment (part of the ruling) did not exist.
Try ->thinking<- next time, will you?

Hmmm - the question was 'did the BoRs apply to the states also?'. Marshall said
no, Black said yes. I leave it to the readers to form their own options.
But to be fair (why should I? sigh) Arturo's idea is that in Marshall's day the
14th was not there (True - passed in late 1860s in the Reconstruction Era -
interesting fact in itself).
Black made his court opinion ( interesting that they call it an opinion) in
1947 or so (per Arturo's posting in case he got it wrong - I am perhaps foolish
or even lazy in accepting his fact but IIRC it is about right). Arturo seems to
feel that the 14th added something. I reject that as clearly the 14th did not
revoke or amend the 1st or 10th legally or as written - but just in Black's (
and Arturo's) mind.
I would like to point out that the court changed it's mind first in 1897
(Arturo data again - now all check it as he wishs, everyone is not to take his
{dubious?} word for it). SO - I get the impact of the 14th was not as big a
factor as Arturo states.
But even then it seems that the court change 'incorporates' the 14th which I
see as an illegal wordsmithing by unelected elitists.
If the nation wished to change the BoR the nation had a proper method of doing
so. It seems the a clique of judges changed it for us without bothering to ask
us - for our own good not doubt. A typical elitist method which can and often
does lead to tyranny. Simple as that.
Then back to flames

Arturo -Not enough to know where the library is. You also need to check out
the books and read them if you want to learn something.

StNeel Sigh- another edu stuffed shirt.

It's "Dr. Magidin" to you, son.

Well son - I used to have PhD's working for me - tis true. But me? - I am just
a turnip hoeing, commonsense common man. You really do not have to adress me as
Sir StNeel. I suggest you let your logic speack for itself. Needs proping up it
seems.

No, YOUR red herring. I was talking about incoroporation.

Sigh - I know - to ad nauseum. Could you define it by a legal procedure - or
just a court 'opinion'.

You invoked Rehnquist,,,

Nope - not on incorporation. Just a remark he rejects Jefferson's 'wall between
church and state' as law. Focus there Auturo.

Just cool it on the testy insult stuff (yawn).

Stop ignoring the facts, then.

All the facts? or the one's you pick and choose only?> It tends to make me
annoyed when I

spend my time providing them only to have idiots like you drive
roughshod over them,

Then do not do it. go back to alt.atheist. I am happy to annoy you anytime
here.
Roughshod? Hey - on the NG forum you are exposed to the folks. Not secure in
your Berkely ivory tower. I pity your students - seen a lot of that as I hired
academics to perform some little task. Many (but not all of course) today are a
sorry, self-centered, narrow minded lot and many times are wrong. I thnk you
seems to fit the profile. But perhaps I am wrong and each is allowed their own
views in a free nation. Your choice.

User: "Carol Lee Smith"
Title: Re: Moore rights	28 Sep 2003 02:31:08 PM

On 28 Sep 2003, StNeel wrote:

From: Carol Lee Smith

It appears you (StNeel) have posted in a venue (this NG) where it is unlikely

to be read by

the individual (Arturo) to whom you address your response.
Why is that?

A good point - the only answer I have - he seems to be able to read it all on
alt.atheist (his claim) which I have never posted on (or read). He keeps
popping up it seems. AH - the mysteries of the web. But - you are right. I like
folks to stay in the specific area and talk about the OT things. But the web is
free and folks do what they want.

OT? Are we supposed to know whether you mean on or off by context? Can't
you be more specific and prevent confusion?
Yes the web is free in this regard. Funny you would want to act as some
kind of OT/OT cop by your selective posting.
.

User: "Arturo Magidin"
Title: Re: Moore rights	26 Sep 2003 11:59:04 AM

(StNeel) wrote in message news:<20030925202046.02944.00000191@mb-m26.aol.com>...

From:

I was reading this in alt.atheism. I do not subscribe to
alt.politics.usa.constitution.

& StNeel

:|Please quote the law that says so. Otherwise it remains your opinion.

But in case he wants actual case law, here are some of the relevant
quotes:

Right- then you quote Justice Black of SCOTUS in cases they heard

The question I saw, the ONLY question I saw, was whether the First
Amendment applied to the States.
That is a valid question, in so far as it was ruled early, under Chief
Justice John Marshall, that the original Bill of Rights was ->not<-
binding on the states (Barron v. Baltimore (1833) [32 U.S. 243]), and
was originally meant ONLY to bind the federal government. It was
thought by many that the priviledges and immunities clause of the 14th
Amendment would make the Bill of Rights applicable to the states (the
Congressional debate surrounding the amendment suggests so), but the
Supreme Court ruled in the Slaughterhouse cases (83 U.S. 36 (1873),
decided 5 to 4) that it did not.
So it was through a process of incorporation, through the Due Process
clause of the 14th amendment, that most of the Bill of Rights has been
explicitly incorporated and made applicable to the states. The origin
of this was in
Chicago, Burlington and Quincy Railroad Co. v. Chicago (166 U.S. 226
(1897)) where it was ruled that the 14th Amendment's Due Process
clause compelled the states to proffer just compensation for taking
private land for public use. It continued in Gitlow v. New York, 268
U.S. 652 (1925), where the free speech clause of the first amendment
was made applicable to the states, and it was first explicitly
enunciated by Justice Cardozo in Palko v. Connecticut 302 U.S. 319
(1937). Since Palko, the Court has made sundry parts of the Bill of
Rights binding on the states. The Establishment Clause was made
binding in, I believe, Everson; that ruling was 5-4, but the
dissenters also agreed that the Establishment Clause was binding on
the States, they just disagreed with the analysis of Justice Black
that the case at issue did not violate the Establishment Clause.
The last incorporation to date was, I believe, in 1969, when the
double jeopardy clause was made applicable to the states as well as to
the federal government. Still "out" (that is, not yet deemed binding
on the states) are grand jury indictment (part of the 5th Amendment),
trial by jury in civil cases (part of the 7th Amendment), prohibition
against excessive bails and fines, the right to bear arms (2nd
Amendment), and the 3rd Amendments safeguards against involuntary
quartering of troops in private homes.
In so far as it refers to "is the First Amendment applicable to the
States", the answer is a resounding "yes", and in particular the
Establishment Clause. The quotes I presented were selected from my
files as the ones that explicitly state that the Establishment Clause
DOES bind the states as well as the Federal Government.

"The 'establishment of religion' clause of the First Amendment means
at least this: Neither a state nor the Federal Government can set
up a church.

OK - that is then appears to be the law of the land. Unless in a newer case
SCOTUS changes its mind. They do you know - as in the seperate but equal
concept. It is their privelige. Tomarrow they may rule different.

Yes, indeed. But the question was whether the first amendment applies
to the States. While the ideas of what does or does not constitute an
"Establishment of Religion" may indeed change tomorrow (the current
Court has made it clear, both in opinions and elsewhere, that many of
its members consider, for instance, the Lemon test to be incorrect),
there seems to be very little reason (if any at all) to expect that
the process of incorporation will be reversed. It is highly unlikely
that the application of the incorporated principles of the Bill of
Rights to the States will be rescinded today, or tomorrow, or in the
near future.

OK - but vs the Judge Moore case - he neither set up a church or passed a
law. So neither applies to his case.

Again: I was NOT discussing whether or not the actions of Judge Moore
constitute a violation of the Establishment Clause (I happen to
believe they do, according to the still valid Lemon Test and to
existing precedent, but that's beside the point). The question I was
addressing was whether the Establishment Clause is binding on the
States at all. It ->is<-.

Moore? I don't know here. Maybe a case against him. Did he use tax money? But I
will say that Justice Black is stating a very (overly IMO) broad claim here -
to the point it could be used for many things.

Justice Black was a First Amendment absolutist. This is well known. He
believed that libel and slander laws were unconstitutional.
Nevertheless, his statement here not only gathered the support of the
four colleagues that voted with him, it was also accepted as true by
the four dissenters! And the principle has been reaffirmed time and
time again by the Court.
Again, I was not addressing the validity of the Moore's actions or
lack thereof. I gave the quotes as I gave them to give them in
reasonable context, and to address the question of whether the First
Amendment is applicable to the States and not just the Federal
Government. And it most certainly is.

But by this - Bush's faith base inititive is illegal of course.

As it happens, I happen to think so, yes. And I think his recent
statutory changes are also unconstitutional.

Neither a state nor the Federal
Government can, openly or secretly, participate in the affairs
of any religious organizations or groups and vice versa.

OK - a 'gov't' cannot do this (I agree mostly) But then all religious
activity is banned.

Religious activity BY THE GOVERNMENT, yes.

What about the Constitutional statement the Fed cannot
prohit the free exercise of religion

The Free Exercise clause prevents the government from dictating to
individuals about their private worship. State actors are prevented
from religious activity in the person of their offices, in public
functions where they are acting as representatives for the goverment.
That's why, for example, it is organized teacher-led prayer which is
unconstitutional. Students getting together and praying in the lunch
room (so long as this is not an activity sanctioned or fostered by
school officials) is, again in my humble opinion, perfectly legal, as
is getting together half an hour before classes start and praying or
saluting the flag in the courtyard.

and a the 10th, all powers remain with the *states*
or people.

The 10th is inapplicable here because the matter at issue is dealt
with through the 1st and 14th amendments. The 10th amendment is about
powers NOT delegated to the Federal government nor prohibited by the
States. This issue no longer falls within the aegis of the 10th
amendment, because of the Due Process Clause of the 14th.

So are the views of Justice Black in 1947. Ch Justice Rehnquist is

already on

record he disagrees with Black that Jefferson's statement is law (& I agree
with Rehnquist - Jefferson's 1830 views, while to be considered and respected,
are not law -as Black should have known). Maybe the SCOTUS is poised to change
its mind once again? Lets wait and see.

Two different issues: Rehnquist does not disagree with the
incorporation of the Bill of Rights. He disagrees with how it is
adjudicated in specific instances. Whether or not the Establishment
Clause binds the states is simply not a point of disagreement.

Except that they aren't. They are part of the opinion for the
majority, and they are not incidental: they are germain to the
argument. I suggest that before making such a statement, you should
familiarize yourself with the opinions to see if such a claim has any
merit. You can find the cases through www.findlaw.org, for example.
You seem to be grasping at straws, and rather ignorantly at that.

I suggest that we each read Black & Renhquist, study the methods of our law
procedures, read the Constitution, look at Jefferson and the Federalist papers
and read the history of this legal topic. Then we should each form OUR
thoughts/views/opinions of it all.

I suggest so too. IN particular, you might want to quote ANYTHING AT
ALL that Rehnquist has said that indicates he opposes the
incorporation of the First Amendment and its applicability to the
States. To my knowledge (which, granted, is that of an interested lay
person, not a legal professional) he has never intimated any such
thing. His "beef" is with what does and what does not constitute an
Establishment of Religion, not whether or not the First Amendment is
applicable to the states (the question I addressed).
Arturo Magidin, sans .sig
.

User: "Arturo Magidin"
Title: Re: Moore rights	27 Sep 2003 07:09:41 PM

(StNeel) wrote in message news:<20030926182338.12478.00000195@mb-m04.aol.com>...

From:

(Arturo Magidin)

& StNeel>I was reading this in alt.atheism. I do not subscribe to

alt.politics.usa.constitution.

Hmmm - That is somewhat interesting. I do not subscibe to alt.atheism.

So why are you snipping the crosspost? So you can post without me
seeing your response if I don't go looking for it in google?

But it makes an important point. Lets all remember the entire world can and is
reading our posts and debates. They look at the USA posters for information on
the USA. Lets get it right - for honest debates, for understanding our own
country and for giving the other readers a sense of how the USA works.

The question I saw, the ONLY question I saw, was whether the First
Amendment applied to the States.

Basically true - and you posted

That is a valid question, in so far as it was ruled early, under Chief
Justice John Marshall, that the original Bill of Rights was ->not<-
binding on the states (Barron v. Baltimore (1833) [32 U.S. 243]), and

was originally meant ONLY to bind the federal government.

So Justice Black in 1947 disagrees with Chief Justice John Marshall in 1833.

Are you this dense, or just pretending? The 14th Amendment, proposed
and approved AFTER John Marshall's decision in Barron v. Baltimore,
made much of the Bill of Rights applicable to the states. The
CONSTITUTION at the time that Barron v. Baltimore was decided was
different from the constitution at the time that Everson was decided.

So this is another example on how SCOTUS can and does 'change its mind' through
particular interpretations over time.

No, it's an example of how the CONSTITUTION changes.

I would like at this time to point out that the 'law' being discussed (1st Amd
of US Constitution) is a *written* document and the written words *have not*
changes since 1789.

Are you truly unfamiliar with what the AMENDMENTS to the constitution
are?
Are you, perhaps, under the impression that the person who gets the
second most number of votes for president in the Electoral College is
the Vice-President of the United States?
[.snip.]

It was
thought by many that the priviledges and immunities clause of the 14th
Amendment would make the Bill of Rights applicable to the states (the
Congressional debate surrounding the amendment suggests so), but the
Supreme Court ruled in the Slaughterhouse cases (83 U.S. 36 (1873),
decided 5 to 4) that it did not.

So - the 14th Amd 'due proscess' appears. The 14th Amd passed in the
reconstruction era after the US Civil War is IMO one of the worst written
unclear and wordsmithed parts of the entire Constitution.

That's YOUR problem. It is, nevertheless, part of the Constitution,
and affects the Constitution.
You should really try to stop: you are already deep enough, everything
you say just makes you look more and more ignorant.
[.snip.]

So it was through a process of incorporation, through the Due Process
clause of the 14th amendment, that most of the Bill of Rights has been
explicitly incorporated and made applicable to the states. The origin
of this was in
Chicago, Burlington and Quincy Railroad Co. v. Chicago (166 U.S. 226
(1897)

So - the states were not bound by the BoR for over 100 years - then in 1897 -
they were. I agree this is the case you so ably quote. All due to the words in
the 14th Amd stating 'due process' overpowering the clear phase in the 1st Amd
'Congress shall not..'.

No, they do not "overpower" the First Amendment. They COMPLEMENT it.
They EXPAND ITS APPLICABILITY.
[.snip.]

The last incorporation to date was, I believe, in 1969, when the
double jeopardy clause was made applicable to the states as well as to
the federal government. Still "out" (that is, not yet deemed binding
on the states) are grand jury indictment (part of the 5th Amendment), trial by

jury in civil cases (part of the 7th Amendment), prohibition against excessive
bails and fines.....<snip more free rights being 'debated'>

You hit my concerns right on. Due to the outrageous (IMO) wordsmithing and
'interpreting' around the unclear 'due process' phrase - it appears to me that
the entire BoR is being gutting and discarded under the onslaught of 'judges
with an agenda'.

Actually, the wordsmithing occurred in the Slaughterhouse Cases, when
the clear intent of the Priviledges and Immunities clause of the 14th
Amendment was eviscerated... by people with YOUR agenda.

In so far as it refers to "is the First Amendment applicable to the
States", the answer is a resounding "yes"

I get a 'no' between 1789-1897, a 'yes' from 1897 -present and a '?'
tomarrow.

Silly me, I though we were talking about fricking today. Turns out all
you are doing is blowing smoke out of your *****?
Once again, rather than this stupid posturing trying to justify your
past stupidity, perhaps you can provide one smidgen of evidence that
there is ANYBODY on the bench that has even insinuated that the Bill
of Rights ought to be disincorporated.

There seems to be very little reason (if any at all) to expect that
the process of incorporation will be reversed...today, or tomorrow, or in the

near future.

I disagree -

Based on?

let take it to court.

The court HAS spoken. The current court has time and again invalidated
State Laws on the basis they violate the US Constitution's Bill of
Rights. It has been done by all justices currently on the bench, time
and time again. You, quite simply, have no leg to stand on with
regards to this issue. All you are doing is demonstrating beyond a
doubt that you have no idea what you are talking about.
[.snip.]

Justice Black was a First Amendment absolutist. This is well known.

I wonder if Black realized that there were three players in the game - the Fed,
the States and the people.

I wonder if you know what you are talking about. Do you know
->anything<- about the personal or legal history of Justice Hugo
Black? Or are you just mouthing off platitudes?

I guess Black did not think enough of the common man
to be able to write a state constitution by their elected legislature as they
saw fit in *their* state.

You still haven't managed to realize that it was the 14th Amendment
that made many of the federal rights and immunities applicable to the
state. Justice Black was not the first, nor the last, to use the 14th
Amendment for incorporation.

The 10th is inapplicable here because the matter at issue is dealt
with through the 1st and 14th amendments.. because of the Due Process Clause

of the 14th.
<snipped for shortness - hope no meaning was changed of you posting/views>

Egads - now the 10th is negated by the 'due process' phrase. Did we, the
nation, revoked the 10th? NO - an unelected court did it.

Talk about idiocy. The 10th Amendment talks explicitly about powers
not delegated. The 14th Amendment does not "negate" the 10th, it
changes the matters to which it is applicable. Are you really this
stupid, or are you just pretending?

Rehnquist does not disagree with the
incorporation of the Bill of Rights.

I will let Rehnquist defend himself.

In other words, you don't know, you don't want to know, and you do
would rather speak in platitudes and pretend that the issue is in the
air than admit that you are just, quite simply, dead wrong.
How... surprising.
I posted that Rehnquist stated that the

Jeffersonian statement of the 'a wall seperate the church and state' was not
law. I agree on this as Jefferson,

Non sequitur. That has nothing to do with incorporation of the Bill of
Rights.

I would like to point out that most state constitutions have essentailly (not
identically for wordsmither) the US BoRs in their constitutions. Seems the
common folks kinda like the BoR idea and made the states 'obey' also - as well
as the Fed.

No sequitur. That has nothing to do with the Incorporation of the Bill
of Rights.

I see you opinion - but disagree.

Good for you. Now, let's analyse: my opinion is informed. It is based
on reading the law, reading the opinions, and reading what Rehnquist
has done and said.
Your opinion is based on nothing.
Sorry, but not all opinions are equally valid.

You seem to be grasping at straws, and rather ignorantly at that.

Not at all - your position is an absolutist, elitist, cast in concrete since
1897 one.

Really? My position is that it is quite clear that the Bill of Rights
binds the States, and that nobody in the Court has even hinted that
this is not the case; that nobody on the Court has even suggested that
the 14th Amendment did not make most provisions on the Bill of Rights
applicable to the states.
That position is based on solid facts.
What part of that position is "absolutist", and why?
What part of that position is "elitist", and why?
What part of that position is "cast in concrete since 1897", and why?
Like I tell my students in midterms, Please show your work.

But name calling between us is unnecessary - logic and facts convice.

No, apparently logic and facts are something you do not care about. I
gave you the facts, but you ignored them. Instead, you attempted
faux-logic, non sequiturs, outright false statements, red herrings,
and sophistry.

I suggest that we each read Black & Renhquist, study the methods of our law
procedures, read the Constitution, look at Jefferson and the Federalist

papers

and read the history of this legal topic. Then we should each form OUR
thoughts/views/opinions of it all.

I suggest so too. IN particular, you might want to quote ANYTHING AT
ALL that Rehnquist has said that indicates he opposes the
incorporation of the First Amendment

Red herring and off the mark - I expained above what I stated.

Really? You are arguing that incorporation is wrong. If all your
statements about Rehnquist and the law changing were not about
incorporation, then you are the one who were throwing off more red
herrings than the danish fishing fleet.

Focus there Artuo.

Learn to spell and we'll talk.
Arturo Magidin, sans .sig
.

User: "Arturo Magidin"
Title: Re: Moore rights	28 Sep 2003 03:18:09 PM

In article <20030928113848.09591.00000333@mb-m25.aol.com>,
StNeel <stneel@aol.com> wrote:

From:

(Arturo Magidin)

& StNeel

Looks like Arturo has 3 posts in which he rants and is nasty. I will handle
them as they come.

Loos like StNeel is perfectly willing to be disrespectful of the time
and work of others, but feels put upon when people do not reply to
that disrespect with "due deference."
[.snip.]

Arturo - I do not crosspost ever. I do not go to alt.atheism ever.If you wish
to read Alt. atheism that is your problem. I post to this audience only. So
quite your whining.

Which is mighty... convenient for you. Lets you misrepresent,
misquote, and modify what I write, and with some luck I won't even
notice. Cool.
[.snip.]

Arturo posted

was originally meant ONLY to bind the federal government.

StNeel replied

So Justice Black in 1947 disagrees with Chief Justice John Marshall in

1833.

Arturo replied

Are you this dense, or just pretending? The 14th Amendment, proposed
and approved AFTER John Marshall's decision in Barron v. Baltimore,
made much of the Bill of Rights applicable to the states.

I reply
Are you the dense one. When was the 1st Amd and the 10th Amd REVOKED LEGALLY
AND ACCORDING TO THE CONTITUTION.

They were not. The 1st Amendment is still in place, as is the
10th. The 14th Amendment is now also part of the constitution, and it
as made legally and according to the Constituion.
What you continue to lie about is the 10th. The 10th Amendment is
clearly not an amendment whose subject matter is absolute: it is
relative to the body of the Constitution. The 10th Amendment reads:
" 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. "
So the 10th refers to "powers not delegated to the United States by
the Constitution." If the Constitution is amended so that certain
powers are delegated to the United States, then the subject matter to
which the 10th applies is automatically changed, legally and according
to the Constitution.
When the 10th was passed, the power to legislate on the matter of
slavery was a power reserved to the State, since it was not expressly
delegated to the Untied States. When the 13th Amendment was ratified,
reading:
Section 1. Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject
to their jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
then the matter of legislating with regards to slavery was no longer a
power "not delegated to the United States": the 13th Amendment made it
expressly a power delegated. Likewise, the 14th Amendment has many
clauses that make it clear that it is binding on the State, and it
gives new powers delegated to Congress, expressly, and thus removes
them from within the aegis of the 10th Amendment:
Fourteenth Amendment:
Section. 1. All persons born or naturalized in the United States and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection of the
laws.
Section. 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole
number of persons in each State, excluding Indians not taxed. But when
the right to vote at any election for the choice of electors for
President and Vice President of the United States, Representatives in
Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty-one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one
years of age in such State.
Section. 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any
State, who, having previously taken an oath, as a member of Congress,
or as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may by a vote of two-thirds of each
House, remove such disability.
Section. 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions
and bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.
Section. 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Section 1 expressly binds the states: " 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." You see that? "No State". And you see Section 5? "The
Congress shall have power to enforce[...] the provisions of this
article." Prior to ratification of the 14th Amendment, these issues
were up to the States by the 10th. But the 10th is relative: exactly
what it means depends on what the rest of the Constitution
says. That's what the plain language of the 10th itself states. Once
you change the Constitution, it may change what the 10th applies to:
that's the nature of the 10th Amendment, as stated, as proposed, and
as ratified.
In its original legislative intent, gutted by what you call
"wordsmithing", the "privileges and immunities" clause was meant to
cover the rights and protections granted by the Bill of Rights. Later
courts, unwilling to overrule the Slaughterhouse Cases narrow finding
which modified the plain reading of the Amendment, instead used the
Due Process clause to restore to the 14th Amendment its intended
application.
The 10th Amendment once forbade the Federal Government from
prohibiting alcoholic beverages in all the United States; when the
18th Amendment was ratified, it removed that issue from the aegis of the
10th Amendment; when the 21st Amendment was ratified, it restored it
to the aegis of the 10th. Once, the 10th forbade the federal
government from legislating on the issues of women's suffrage, poll
taxes for federal elections, and voting age qualifications for those
over 18 years of age. Upon ratification of the 19th Amendment, the
24th Amendment, and the 26th Amendment, these issues were removed from
the aegis of the 10th Amendment and given over to Congress and the
Federal government as part of the expressly delegated powers by the
Constitution.
The 10th was not "repealed or changed" by the legal ratification of
the 18th, the 19th, the 24th, or the 26th Amendments. The 10th speaks
only of powers "not delegated." As the Constitution changes, the
powers that are and are not delegated may also change, and therefore,
what the 10th says changes.
The 1st Amendment was also not "repealed or changed." The 1st is still
in complete force. The question is whether the protections afforded to
citizens by the 1st as against the Federal government are ALSO bars
against the states. Before ratification of the 14th Amendment, which is
binding on the states, it was not a bar against the states. But the
14th Amendment explicitly and specifically forbids the STATES from
legislating certain things, from enforcing certain laws, and from
performing certain actions: those laws that shall "shall abridge the
privileges or immunities of citizens of the United States", and those
actions that shall "deprive any person of life, liberty, or property,
without due process of law" or "deny to any person within its
jurisdiction the equal protection of the laws".
There is no change in the wording of the 1st: it has not been
repealed, and it has not been changed. But its protections are
expanded by the 14th. Likewise, the 10th has neither been repealed nor
changed: the 10th is a "catch all" amendment, designed, like the 9th,
to cover that which is not expressly stated. Once the Constitution is
amended, and some things that were previously not covered become
covered, the 10th Amendment must, perforce, be modified in its
applicability. That's what the 10th says, that's what it said when it
was proposed, that's what it said when it was ratified.

Your position is the the 'due process' phrase
did so.

No, my position is the the 14th Amendment, a change in the
constitution, expanded the applicability of the protections granted to
the citizens of the United States and its several states by the
1st. And that the 14th Amendment, by expressly delegating certain
powers to Congress and expressly barring the States from certain
actions, perforce must change the applicability of the 10th.
Your talk of "repeal or changed" is a red herring and a
strawman. Repeating it constitutes dishonesty.

That is sheer nosense and that phrase states nothing about the 1st &
10th.

That is sheer nonsense: The 10th speaks of powers "not delegated." The
14th delegates powers to congress. Therefore, the meaning of the 10th
must perforce change. The 10th already contains within itself the
reason for the change; there is no need to talk explicitly about the
10th Amendment in order to change its meaning: it is only necessary to
amend the constitution.

I realize that dense liberal elites like you have tortured and
wordsmithed the due process to negate the BoR in the last 50 years. I think
they and you are wrong.

I think you know nothing about me, and the use of phrases like
"liberal elites" are nothing but the use of stock phrases in attempts
at building strawman you can then try to savage. It also represents
continuing evidence of your appalling lack of original thought: you
just repeat phrases without understanding their meaning or applicability.

StNeel posted - I would like at this time to point out that the 'law' being

discussed (1st Amd of US Constitution) is a *written* document and the written
words *have

not* changes since 1789.

Arturo replied - Are you truly unfamiliar with what the AMENDMENTS to the

constitution are?

I reply - show me where the 1st & 10th Amd were REVOKED LEGALLY.

Starwman. Red herring. The 10th Amendment talks about powers not
delegated by the Constitution. if the Constitution changes, are you
trying to imply that it is impossible for a power that was not
previously delegated to become delegated?

Are you, perhaps, under the impression that the person who gets the
second most number of votes for president in the Electoral College is
the Vice-President of the United States?

I Reply - Apples and Oranges - stay on the subject .

No, not "apples and oranges." You claim that because the wording of
the 10th Amendment was not changed, that because the 14th does not
expressly talk about the 1st or 10th amendment, then it is "sheer
nonsense" to claim that the 14th could change the meanings of the 1st
or 10th, and that they must be applied just as they were applied prior
to the ratification of the 14th.
Well, paragraph 3 of Section 1 of Article 2 has not been
changed. Nowhere in the Constitution (and nowhere in the 12th
amendment) is there any express mention of Article 2, or Section 1, or
paragraph 3. Therefore, by your "logic", it follows that it is "sheer
nonsense" to claim that the procedure to elect president and
vice-president, described in paragraph 3 of Section 1 or Article 2,
has been changed or "revoked legally." It follows, therefore, that the
person who gets the second most number of votes for president in the
Electoral College is the Vice-President of the United States, since
that is clearly and expressly what paragraph 3 of Section 1 of Article
2 states: "In every Case, after the Choice of the President, the
Person having the greatest Number of Votes of the Electors shall be
the Vice President."
Why is this not the case?
Simple: because the Constitution has been ->amended<-. Because
paragraph 3 has been superseded by the 12th Amendment, which by its
very existence changes the Constitution, and thus the election.
Likewise, since the passage of the Bill of Rights, the 10th included,
the Constitution has been amended. The meaning of the 10th, an
amendment which expressly depends first and foremost on what the
Constitution as a whole says, changes when what the Constitution as a
whole says.

Focus Arturo. Your
technique of dragging off subject red herring out is the mark of a wandering
mind.

Your technique of erecting strawmen is the mark of a liar. I am not
introducing red herrings, you are.
[.snip.]

StNeel ->The 14th Amd passed in the

reconstruction era after the US Civil War is IMO one of the worst written
unclear and wordsmithed parts of the entire Constitution.

That's YOUR problem.

Arturo -

That's YOUR problem.

No - that is my opinion. It is also the opinion of Paul Buck, Pulitzer Prise

"Prize"
[.snip.]

Arturo- >You should really try to stop: you are already deep enough,

everything

you say just makes you look more and more ignorant.

Stuff it - you narrow minded elitist Berkeley type.

Oh, dear me. I guess that makes it okay for you to ignore facts, and
that's what makes your non-informed ignorant opinion just as valid as
one based on actual information and facts.

Get another source than the
booklets that the demonstrators pass out.

You might want to get another source which is not Ann Coulter. My
information comes from Supreme Court opinions and the Oxford Guide to
the United States Supreme Court, and the Oxford Guide to United States
Supreme Court Decisions.
Where does yours come from, other than your own inability to read?
[.snip.]

StNeel ->All due to the words in

the 14th Amd stating 'due process' overpowering the clear phase in the 1st

Amd 'Congress shall not..'.

Arturo->No, they do not "overpower" the First Amendment. They COMPLEMENT it.

They EXPAND ITS APPLICABILITY.

Unfortunately the 14th, AS WRITTEN, says nothing about revising or expanding
the 1st.

It does. It states explicitly that states may not pass or enforce
legislation that abridges the priviledges and immunities of the
citizens of the United States, and that they may not deprive anyone of
life, liberty, or property without due process of law. The rights
guaranteed by the 1st amendment: freedom of speech, press, worship,
association and petition, and the establishment clause, are aspects of
liberty.

But your ilk have highjacked the constituion by reading words in
peculiar ways - both in courts and in classrooms for many years. You are wrong
- according to the law which is the WRITTEN constituion.

My "ilk." What is my "ilk" again, and how exactly do you know what my
"ilk" is?
Oh, right. My e-mail address. Deep, really deep. And a devastating
logical argument, certainly.
Now, let's talk about ->your<- ilk: you claim that none of the
amendments passed after the 10th could possibly change or modify the
meaning of the 10th amendment. On what do you base that, if not
"reading words in peculiar ways"?
No, I am not "wrong", not according to the law which is the written
constitution: it's right there in the 14th Amendment. Clause 5, if
nothing else, automatically modifies the 10th.
There is only one person in this discussion who is ignoring the
->written<- constitution, and it is not me. It is the ignorant fellow
with the poor spelling and the inferiority complex who does not even
have the guts to post under his or her own name, and instead goes by a
silly monicker of "StNeel".
[.snip.]

Arturo -The court HAS spoken.

StNeel reply - yes many times both pro and con over the history of
the USA.

Please give a single legal citation after the 14th Amendment was
passed in which the Court has sided "con" the incorporation of the
Bill of Rights as a bar on the states.
Just one.

You
have no idea what the present court would say. I say let the court speak for
itself.

You say "I have nothing on my side except wishful thinking, so I
demand that you give that wishful thinking equal weight with all the
evidence amassed against me."
Sorry, but not all opinions are equal. (Which, by the way, is not
exactly a "liberal elitist Berkeley type" opinion; go figure).
[.snip.]

Arturo- You still haven't managed to realize that it was the 14th Amendment
that made many of the federal rights and immunities applicable to the
state.

StNeel - So - show me where the 1st and 10Amd were revoked or changed legally.
The 14th does not say so -AS WRITTEN.

The 14th delegates powers to congress expressly, and bars the states
expressly. The 10th Amendment is perforce changed, since the 10th
Amendment speaks of "powers not delegated" and "[powers] not
prohibited [by the Constitution] to the States."
Therefore, the Constituion AS WRITTEN, changed the applicability of
the 10th Amendment upon legal ratification of the 14th Amendment. Just
as it changed the applicability of the 10th Amendment upon legal
ratification of the 13th, the 15th, 16th, 17th, 18th, 19th, 21st,
24th, and 26th amendments, which either expressly delegate to
Congress, or expressly prohibit to the States, or both, certain
powers.

Artuor -Justice Black was not the first, nor the last, to use the 14th
Amendment for incorporation.

StNeel - AH yes 'incorporation'. To be a good liberal elitist one must read
that word as 'amended' or 'revoked'.

No, it is to be a good closeminded ignoramus like you that you need to
savage the word and pretend that it means "amended" or "revoked."
As for amending, yes, the 14th Amendment amended the
constitution. Hence the name, see?

I remain unconvince

Yes, I realize that. Must be really hard to close your eyes, stick
your fingers in your ears, and hum so loud so the sheer weight of
fact can be so thoroughly ignored.

- and you fear that
statement -as it might unravel your twisted wordsmithing to achieve YOUR
agenda,

Please, what is "my agenda"? Show your work.

Heck - someone might call for a people's vote on all this.

They did: it was called "ratification." And they do all the time: it
is called "proposing constitutional amendments." If and when such a
proposal passes, it will change the constitution.

That you
fear. A bunch of common folks might start dismantling your ivory tower.

This has nothing to do with ivory towers, mine or anyone else's. It
has to do with the text of the Constitution, which you ignore and lie about.
[.snip.]

StNeel- Egads - now the 10th is negated by the 'due process' phrase. Did we,

the

nation, revoked the 10th? NO - an unelected court did it.

Arturo - Talk about idiocy. The 10th Amendment talks explicitly about powers
not delegated. The 14th Amendment does not "negate" the 10th, it
changes the matters to which it is applicable.

My reply - yup unelected changes to the constitution by
'wordsmithing'.

Your reply is nonsense, and if you don't know it, then you are a waste
of oxygen.
The 14th Amendment, which was a ratified change to the constitution
(not an "unelected change", by which you presumably mean
interpretation by the courts). The 14th Amendment was ratified
according to the process set forth by the Constitution: it was
proposed by Congress on June 13 1866, and on July 9, 1868, upon
ratification by the State Legislature (elected officials) of the
States of Louisiana and of South Carolina, it became conditionally
ratified (Ohio and New Jersey had "withdrawn" their original
certification). On July 28, 1868, having been further ratified by the
states of Alabama (July 13) and of Georgia (July 21), it was certified
as part of the Constitution.
Nothing unelected and no wordsmithing involved... until the
Slaughterhouse Cases that gutted the Privileges and Immunities clause,
despite clear legislative intent.

The
14th does not mention the 1st or the 10th AS WRITTEN.

The 14th expressly delegates powers to Congress, and expressly forbids
the States from certain actions. Therefore, it changes the
applicability of the 10th, which is only applicable to those powers
NOT expressly delegated to Congress and NOT expressly forbidden to the
States.

That is a fact - even a
common man can read it. I, for one, do not need someone to 'explain the real
meaning' to me - especially from Berkeley.

Apparently you do, since you do not understand the meaning of the
plain phrase " powers not delegated to the United States by the Constitution, nor
prohibited by it to the States".
Tell me, in your own little world, what do those words mean? Why do they
exclude any changes to the Constitution made after ratification of the
10th?
[.snip.]

Arturo - Are you really this
stupid, or are you just pretending?

StNeel - sorry readers - could not resist
My reply - Yawn - you remain unconvincing.

Shall we take a poll? Obviously, it is not a matter of convincing you:
you made up your mind without knowing the facts, and are impervious to
them. So, shall we see whether I am "convincing" or not, by asking
around?

Arturo - Sorry, but not all opinions are equally valid.

StNeel - yes they are. We booted the idea that a "lord's' opinion weighed more
than a 'yeoman's' opinion out in the 1770s. Sorry - you are wrong there Arturo.

Sorry, you are wrong. It has nothing to do with "lord" vs. "yeoman",
it has to do with informed vs. ignorant, with ill-founded
vs. well-based. Informed opinions are always better than ignorant
ones. Thus my opinions are better than yours: you have demonstrated
that yours are not based on fact, on information, or on consideration:
they are based on willful ignorance.
[.snip.]

Arturo -.... that nobody on the Court has even suggested that
the 14th Amendment did not make most provisions on the Bill of Rights
applicable to the states.

StNeel - Well it seems that the original writers of the constitution and the
courts up to 1897 (by your own posting) did think the BoR was against what is
WRITTEN there.

No. The original writers did think the Bill of Rights was not
applicable to the States. But the original writers had no hand in the
14th Amendment. The original writers of the 14th Amendment clearly did
intend it to be a bar on the states: it states so explicitly on the
text of the Amendment. And the Congressional Debate surrounding its
approval and framing also clearly indicates that the original framers
of the 14th amendment meant it to make the Bill of Rights applicable
to the states.
The date of 1897 is just a red herring on your part. It corresponds to
the first time that the Supreme Court expressly agreed that the 14th
Amendment made provisions of the Bill of Rights applicable to the
States. That does not mean that prior to that they were not. Upon
passage of the 14th amendment, Barron v. Baltimore ceased to be good
law, and Congressional Intent was clear: the 14th made most provisions
of the Bill of Rights applicable to the States just as well as to Congress.

Then an small group of unelected men, without asking the folks
if it should be change, - changed it

Again, this is nothing but lies. The change did not occur in 1897, it
occured in 1867-1868, and it was made by elected men and citizens of
the sundry states: it was called the "ratification of the 14th amendment."

- not by changing the WRITTEN words - but
by what that small group 'thought' it meant.

Lies.
[.snip.]

Arturo - Like I tell my students in midterms, Please show your work.

StNeel - AH - Arturo is telling me he is a 'lord'. I remain unimpressed.

Ah, St Nell being a liar. Removing context to misrepresent the
statement made. Tsk, tsk, tsk.
So, let us restore that context and see if you will once again avoid
supporting your claims and instead lie, shall we:
You stated:

Not at all - your position is an absolutist, elitist, cast in
concrete since 1897 one.

To which I replied:
Really? My position is that it is quite clear that the Bill of Rights
binds the States, and that nobody in the Court has even hinted that
this is not the case; that nobody on the Court has even suggested that
the 14th Amendment did not make most provisions on the Bill of Rights
applicable to the states.
That position is based on solid facts.
What part of that position is "absolutist", and why?
What part of that position is "elitist", and why?
What part of that position is "cast in concrete since 1897", and why?
Like I tell my students in midterms, Please show your work.
So, what part is absolutist, and why? What part is elitist and why?
What part is "cast in concrete since 1897" and why?
Your lack of answers seems to indicate to acknowledge that your claims
were false. Is that indeed the case? If not, then support them. If you
don't, well, we all know what that means, don't we?
[.snip.]

StNeel - so he resorts to name calling. Yawn. He ' selects' or picks and
chooses his facts but when other facts interfer with his agenda - he ignores
them .

You should really stop talking about yourself in the third person.

I ask simply

Fact A ---When was the WRITTEN constituion's 1st and 10th AMD REVOKED OR
AMENDED LEGALLY IN WRITTING?

Red herring. The meaning of the 10th was changed by passage of the
13th, 14th, 15th, 16th, 17th, 18th, 19th, 21st, 24th, and 26th
Amendment, as stated explicitly by the 10th. The 1st has not changed,
nor is anybody claiming, except you in your strawmen, claiming it
changed. But the 14th made the protections granted to the citizens of
the United States by the 1st Amendment against Congress also valid
against the States, as was clearly intended by its framers.

I am expected to agree with an 'interpretation' or and 'incororpation' instead
of the legal proceedure clearly defined. I do not agree.

No, you are expected to read and understand the Constitution instead
of lying about it and misrepresenting what others say when erecting
strawmen. I realize now, of course, that it is far too much to expect
from you.
[.snip.]

Arturo - Really? You are arguing that incorporation is wrong.

StNeel - absolutely - and illegal. My reference - the US Constitution as
written.

Ignoring the 14th Amendment, that is, which means it is NOT the "US
Constutition as written", but "The US constitution as StNeel would
like it to be written." In particular, you are (mis)interpreting the 10th
amendment, willfully so.

I suggest all common folks read it and make up their own opinions.

I suggest you try to read it yourself sometime, and try to understand
it too. It is painfully obvious you have done neither.
[.snip.]

I
am now pretty sure that in Arturo's classroom a student would get his agenda in
large doses.

My students, in my classroom, learn about Calculus, algebra,
differential equations, analysis, topology, complex analysis, abstract
algebra, group theory, ring theory, Galois Theory, and anything else
that is in the course syllabus. I make it a policy ->never<- to
discuss politics or social issues in my class, or with students who
are enrolled in my class: I believe it is not my place to do so, and
it is an abuse of my position to do so, just as it would be an abuse
of position for any teacher not employed by a sectarian school which
makes it part of its official policy to lead his students in prayer
(even if she explicitly states that students are not required to
join). To students who are NOT enrolled in my class, I never volunteer
my opinions on any topics which are not directly related to my job
(that is, mathematics). The only legal issues I discuss with students
in my class are the Student Legal Code and the University Rules
regarding student rights and obligations.
So, you can drop the strawman and you can drop your mental image of
what I do or do not do in my classroom.

I will be fair - he posted the history of it all in this NG - so
maybe he does so in his classroom. I leave it to him but out Berkeley way
things are weird.

Berkeley is where I got my graduate degree in Mathematics. It is also
where I post from. Part of the reason I dislike posting from google is
that it does not allow to put in the headers my standard disclaimer
specifying that although I post from the account I had as a graduate
student, I am no longer at Berkeley.
[.snip.]

Arturo - Learn to spell and we'll talk

Egads - I mispelled his name. I did so by accident and with no bad intent. IF I
wish to show disrespect to you Arturo - I have better ways to express
them.

No "if" about it. You exhibited your disrespect in spades when you
ignored and misrepresented what I wrote, when you removed context from
my words, and when you modified, without indicating you were doing so,
what I wrote when quoting it.
Your lack of respect has been evident. Your inability to spell just
makes reading you annoying.
======================================================================
"They don't call it The Net of a Billion Lies
for nothing."
--- Vernor Vinge, "A Fire Upon the Deep"
======================================================================
Arturo Magidin

User: ""
Title: Re: Moore rights	26 Sep 2003 10:54:29 AM

(StNeel) wrote:

:|>From:

(1) ************************************
RULES:
************************************
ESTABLISHMENT CLAUSE:
The Establishment Clause as defined by the USSC in Everson v. Bd of Ed,
1947
The "establishment of religion" clause of the First Amendment means at
least this:
(1) neither a state nor the Federal Government can set up a church.
(2) Neither can pass laws which aid one religion,
(2a) aid all religions,
(2b) or prefer one religion over another.
(3) Neither can force
(3a) nor influence a person to go to
(3b) or to remain away from church against his will
(3c) or force him to profess a belief
(3d) or disbelief in any religion.
(4) No person can be punished for entertaining [p*16]
(4a) or professing religious beliefs
(4b) or disbeliefs,
(4c) for church attendance
(4d) or non-attendance.
(5) No tax in any amount,
(5a) large or small, can be levied to support any religious activities
(5b) or institutions, whatever they may be called,
(5c) or whatever form they may adopt to teach
(5d) or practice religion.
(6) Neither a state
(6a) nor the Federal Government can, openly or secretly, participate in the
(6b) affairs of any religious organizations
(6c) or groups,
(6d) and vice versa.
************************************
EVEN IF YOU DO AWAY WITH #5 WHICH is what Rehnquist
has been working to accomplish for 30 years, you still all the other
elements which would be and are still good law.
************************************
The Establishment Clause
http://members.tripod.com/~candst/estclause.htm
************************************************
(2) Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

:|
:|>No person can be punished for entertaining or
:|> professing religious beliefs or disbeliefs, for church attendance
:|> or non-attendance.
:|
:|Again Moore did not do this

Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

:|
:|>No tax in any amount, large or small, can be
:|> levied to support any religious activities or institutions,
:|> whatever they may be called, or whatever form they may adopt to
:|> teach or practice religion.
:|
:|Moore? I don't know here. Maybe a case against him. Did he use tax money? But I
:|will say that Justice Black is stating a very (overly IMO) broad claim here -
:|to the point it could be used for many things. Just my opinion. I do not like
:|very broad and 'general' remarks by my judges. They tend to ramble to the point
:|of illegiblity. But by this - Bush's faith base inititive is illegal of course.

Bush's fait based will, in time be found unconstitutional
Read the decision
http://www.almd.uscourts.gov/Opinions/Glassroth%20v%20Moore%20Opinion.pdf

What you agree with or don't agree with is irrelevant.

:|But then all religious activity
:|is banned. What about the Constitutional statement the Fed cannot prohit the
:|free exercise of religion and a the 10th, all powers remain with the *states*
:|or people. It is a full blown dispute IMO.

FREE EXERCISE:
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. The constitutional inhibition
of legislation on the subject of religion has a double aspect. On the one
hand, it forestalls compulsion by law of the acceptance of any creed or the
practice of any form of worship. Freedom of conscience and freedom to
adhere to such religious organization or form of worship as the individual
may choose cannot be restricted by law. On the other hand, it safeguards
the free exercise of the chosen form of religion. Thus the Amendment
embraces two concepts,-freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the [310 U.S. 296, 304] second
cannot be. Conduct remains subject to regulation for the protection of
society. (4) The freedom to act must have appropriate definition to
preserve the enforcement of that protection. In every case the power to
regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom. No
one would contest the proposition that a state may not, be statute, wholly
deny the right to preach or to disseminate religious views. Plainly such a
previous and absolute restraint would violate the terms of the guarantee.
(5) It is equally clear that a state may by general and non-discriminatory
legislation regulate the times, the places, and the manner of soliciting
upon its streets, and of holding meetings thereon; and may in other
respects safeguard the peace, good order and comfort of the community,
without unconstitutionally invading the liberties protected by the
Fourteenth Amendment.
Cantwell v. State of Connecticut, 310 U.S. 296 (1940)
*********************************
TENTH AMENDMENT:
To Understand the Tenth Amendment, it is important to know that the
constitution delegates, or gives, certain powers to the federal government.
Most of these powers are actually enumerated, or named. . .
The federal government has other powers besides those clearly
listed in the Constitution. These are implied, or unstated, powers. of
They cover a variety of matters. The Constitutions states that Congress
shall "make all Laws which shall be necessary proper for carrying into
Execution the foregoing Powers and all other Powers vested by this
Constitution in the Government of the United states." This "'necessary and
proper"clause (or elastic clause) gives the federal government the legal
right to exercise the implied power that is connected to its clearly listed
powers. For example, the federal government has the enumerated power to
make laws concerning trade between states. That power has been stretched
to include things not specifically listed in the Constitution such as
regulating air, bus, train, and truck transportation between states. The
federal government also regulates TV and radio. The issue of implied
powers was first raised by Chief Justice John Marshall
The Constitution also gives part of the federal government
Congress-the power "to provide for the ... general welfare of the United
States." Under this power, the federal government has done many things not
listed in the Constitution. For example, the federal government has built
dams and flood control projects. It has set up national parks. It has
established a billion dollar system of social security benefits for older
citizens and for the disabled and poor.
The federal government also shares certain powers with the states.
These concurrent, or shared, powers include setting and collecting taxes,
passing criminal laws on the same matter, and spending money for-the good
of the public.
The Constitution also names particular things that the states may
not do. For instance, states may not enter into treaties with countries.
Nor may states make laws that interfere with contracts or give people
titles of nobility (such as "count" or "duchess"). States are also
prohibited from coining money.
The states have thousands of powers. Every state creates and
controls its own government and sets voting requirements for its citizens.
The state controls local business, labor, and professions, as well as the
ownership, use, and sale of property. The state has tremendous
responsibility for looking after its citizens' health and welfare. It has
the power to set and collect taxes for these purposes. Looking out for its
citizens means controlling schools, hospitals, roads, and other public
services. It means making laws that require vaccinations and limiting
automobile exhaust fumes. It means outlawing forms of gambling and
forbidding ownership of dangerous weapons. It means establishing highway
speed limits and controlling the sale and use of alcoholic beverages. It
can also mean forbidding the sale of soft drinks if they are in bottles or
cans that aren't accepted for return.
From the beginning, the states kept some of these important powers
for themselves. After all, the Tenth Amendment says that all powers not
given to the federal government or forbidden to the states are reserved
to-that is, belong to-either the states or the people.
The Preamble, or first part, of the Constitution begins with the phrase,
"We the People. . ." and ends with". . . do ordain and establish this
Constitution for the United States of America.," All the powers that the
Constitution of the United States gives, both to the states and to the
federal government, flow directly from the people.
Now think about what the Tenth Amendment is really saying:
All powers that are not given to the federal government or forbidden to the
states belong-- either to the states or to the people. The Tenth Amendment
really seems to be setting limits on the power of the federal government.
Yet this is exactly what the main part of the Constitution itself does. In
fact, many scholars believe that the Tenth Amendment only repeats what is
said in the Constitution. If this is true, then why has the Tenth
Amendment been interpreted--its meaning studied and debated--over and over
again?
To answer this question, compare the wording of the Tenth Amendment
with these travel directions: , 'Drive 14.2 miles. Turn left just before
the bridge. Continue for two blocks. Stop at the bank on your right." How
detailed is the amendment compared with the travel directions? Does the
amendment give an exact road map for the constitutional traveler? The
answer is clearly no.
Some scholars believe that those who wrote the Tenth Amendment
purposely made it vague, or fuzzy. Why would they want to do that?
Article 11 of the Articles of Confederation (ratified in 1781) will help
to explain this. Article 11, like the Tenth Amendment that came after it,
deals with the power of state governments and the federal government. But
Article 11 includes a key word that is not found in the Tenth Amendment.
Pay special attention -to the underlined [capitalized] word as you read the
Article:
Each State retains its sovereignty [power not controlled by any other
power], freedom and independence, and every power, jurisdiction and right,
which is not by this confederation EXPRESSLY delegated to the United
States, in Congress assembled. [underlining-capitalized- added]
The word expressly means " directly " or " specifically. " A sign in a
restaurant that sets aside one area expressly for nonsmokers means "Keep
out of this area if you wish to smoke!" A Congress that has only those
powers expressly delegated to itself is also limited. It may do only those
things that the Constitution actually names as its fight. It may not do
anything more. The U.S. government under the Articles of Confederation was
called a body without a head. It was the word expressly that had chopped
the head off that national body.
Those who were present at the 1787 Constitutional Convention knew
how Article II of the Articles of Confederation had weakened the federal
government earlier. Delegates who attended the state conventions to ratify
the Constitution probably knew it, too. The word expressly didn't bother
the Anti-Federalists. In fact, they pressed hard to have the word
expressly included in any amendment about the "reserved powers" of the
states.
After the Constitutional Convention had approved the Constitution,
the states held their own conventions to make decisions about ratifying it.
The Federalists had tried hard to persuade state delegates to vote for the
Constitution. They convinced the delegates that amendments should be
decided on separately from the Constitution itself. The states therefore
came up with various ideas for amendments. Massachusetts, New Hampshire,
New York, South Carolina, and Virginia all wrote amendments that reserved
to the states those powers not delegated to the central government. Except
for Virginia, all of these states wanted the new amendment to keep for the
states all powers ,"expressly " or "clearly," delegated to the federal
government.
On June 8, 1789, James Madison introduced the various state
amendments to Congress. His wording for the "reserved powers" amendment
stated: "The powers not delegated to this constitution, nor prohibited by
it to the States, are reserved to the States respectively." When the Senate
approved the amendment on September 7, 1789, it included the words "or to
the people." Both the Senate and the House of Representatives accepted the
amendment as the twelfth and last one. Then, after two other amendments
were rejected, the "reserved powers" amendment moved up two places and
became the tenth amendment in the list. After Congress voted to propose
the ten amendments known as the Bill of Rights, it was up to the states to
ratify these amendments. In 1791 the Tenth Amendment and the other nine
amendments were finally ratified.
Remember, the Tenth Amendment did not include the word expressly.
What effect would this have on the way in which the amendment was received?
As you may have guessed, it left the door wide open for different
interpretations of federal powers.
SOURCE OF INFORMATION: The American Heritage History of the Bill of Rights,
The Tenth Amendment, Judith Adams, Silver Burdett Press. (1991) pp 31-36
*******************************************************************
"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."
That's the Tenth Amendment. It's a cut-and-paste job of a part of the
Articles of Confederation that limited the Confederation government to
powers not EXPRESSLY delegated to it by the Articles. James Madison
carefully knocked the word "expressly" out of the text of the amendment so
that it would not prevent the federal government from exercising powers not
expressly provided by the Constitution but implied by its provisions and
not specifically barred.
**************************************************************
THE BILL OF RIGHTS & THE TENTH AMENDMENT
.. . . The great national debate continued unabated as the
confederationalist school caused another kind of impasse, as many States
made their demands for a Bill of Rights known. Many agreed to ratify the
Constitution with the provision that a Bill of Rights would be attached
with all due haste after its ratification. There was some that insisted
that it not be ratified without it, but those who had toiled over its
drafting were convincing in their protests that they were not optimistic
about a second convention being successful. The first had barely escaped an
impasse. So the Constitution was ratified with the understanding that a
Bill of Rights would be submitted for ratification immediately afterwards.
The Preamble to the Bill of Rights reflects this demand, in much softer
language:
"The conventions of a number of the States having at the time of their
adopting the Constitution, expressed a desire, in order to prevent
misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added..."
Some States even went so far as to include their right to secede from the
Union in their ratifying documents. This could not be easily denied,
especially at the time, and it sent a clear message to the new Congress - a
Bill of Rights or face the secession of States from the "more perfect
union", the shortest lived union of its kind in all time. Some were opposed
to creating such a Bill, but political expediency won the day and a Bill of
Rights was produced that satisfied many of the demands of the
confederationalist school. Of particular note was the Tenth Amendment that
many States had specifically demanded:
"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people."
The Tenth Amendment is a more generally worded version of reserved rights
of the State governments that is found in Article II of the Articles of
Confederation. What was not included in Article II are any references to
the people, which reflects what the ratifiers of the Constitution had come
to believe was the nature of the new Constitutional Federalism.
http://www.ktas.org/confed2.htm
**********************************************************
THERE HAVE BEEN ATTEMPTS TO UNDERMINE WHAT
THE FOUNDERS PASSED BY ADDING THE WORD EXPRESSLY
TO THE TENTH AMENDMENT:
THE BATTLE OVER THE TENTH AMENDMENT:
OPENING A SECOND FRONT
PETE DU PONT*
http://www.ncpa.org/oped/dupont/10am.html
Perhaps it is the structure of the Constitution that has enabled the
federal judiciary to run roughshod over the Tenth Amendment. As one
commentator has observed, "whatever the Founders' intentions, the rules
they wrote are skewed in favor of national power."9
A plan for a sustained devolution of power from centralized government
might be accomplished through three mechanisms: a federalism statute; a
federal statute narrowing the jurisdiction of the federal courts, and a
constitutional amendment further clarifying the Tenth Amendment itself.
A Federalism Statute. The most effective way to focus the federal
judiciary's attention on the importance of the Tenth Amendment, and to make
sure that the federalist structure of government it commands is reinstated,
is to force such ideas on the federal judiciary using congressional powers.
A federalism statute with the purpose of both instructing the federal
courts and empowering state governments would contain half a dozen
elements, each of which is intended to promote a greater recognition of
state and local governments' rights and to codify the intentions of
Congress for its future role vis-a-vis the States.
First, the statute should contain a statement of principles to guide the
judiciary in the application of the Tenth Amendment. Justice Thomas'
dissent in the Term Limits case provides them:25
* the federal government enjoys no authority beyond what the
Constitution confers -- its powers are limited and enumerated;
* the States can exercise all powers that the Constitution does not
withhold from them; and
* where the Constitution is silent about the exercise of a power, the
federal government lacks it and the States enjoy it.
In addition to a statement of principles, the statute should state that the
Tenth Amendment is intended to provide substantive limits on Congress'
power; that the States need not rely solely on the political process for
protection against burdensome Congressional exercise; and that the
protections afforded the States by the Tenth Amendment should be enforced
by the judiciary when Congress oversteps its boundaries and infringes on
state sovereignty. The U.S. Supreme Court has not abandoned these concepts
entirely, as indicated by its 1992 decision in New York v. United States,26
in which the Court struck down a portion of The Low Level Radioactive Waste
Policy Amendments Act of 198527 as an impermissible Congressional mandate
for states to regulate their citizens. But a codification of these
principles is an important step in strengthening Tenth Amendment viability
in the eyes of the courts.
Finally, the statute should follow with four specific statements of
Congressional self-limitation:28
1. A statement that there shall be no preemption of state and local
authority unless Congress expressly declares its intent to do so. This
"clear statement" requirement in areas where Congress may be impeding state
powers is important to the concept of political accountability. Only with
full and accurate understanding of both who is making decisions and what
decisions have been made can the people in a democracy make an informed
decision as to the policies they desire to be implemented and who shall
represent them in carrying out those policies.29
2. A statement that all federal laws and administrative regulations issued
pursuant thereto shall not be interpreted by the courts to infringe in any
material way upon the authority and capacity of state and local governments
to perform their basic and traditional functions, unless expressly declared
by Congress.
3. A provision prohibiting Congress from imposing conditions on federal
grants unless such conditions are expressly stated, are reasonable, and
have a direct relationship to the program being funded. This provision goes
further than the Court would have allowed in the New York v. United States
case, in which the Court acknowledged that conditions attached to the
receipt of federal funds must "bear some relationship to the purpose of the
federal spending . . . ."30
4. A limitation on federal mandates, drawn from the "Headlee amendment"
approved in Michigan to that state's constitution.31 Such an amendment
would restrict the federal government from mandating programs to state and
local governments without appropriating the money necessary to comply with
the mandates. Unfunded mandates undermine political accountability, by
placing the selection of policies in Washington and the execution of them
in state capitals.
A Federal Statute Narrowing the Jurisdiction of the Federal Courts. Further
Congressional action in support of a federalist system of government could
be achieved by utilizing the "Exceptions Clause" of Article III of the
Constitution to remove jurisdiction from the federal courts on certain
federalism issues.32 Although rarely invoked, the power of Congress to
limit the jurisdiction of federal courts is well established.33 For
example, in 1932 Congress passed and President Hoover signed the Norris
LaGuardia Anti Injunction Act34 utilizing Article III to restrict the
ability of federal courts to intervene in labor strikes.
The Supreme Court, in Lauf v. E. G. Shinner & Co., upheld this attempt by
Congress to limit the jurisdiction of the federal courts, holding that
"[t]here can be no question of the power of Congress to define and limit
the jurisdiction of the inferior courts of the United States." 35
As Chief Justice Harlan F. Stone stated in Lockerty v. Phillips:36 "The
Congressional power to ordain and establish inferior courts includes the
power of investing them with jurisdiction either limited, concurrent, or
exclusive, and of withholding jurisdiction from them in the exact degrees
and character which to Congress may seem proper for the public good."
These constitutional provisions can serve as the foundation of a statute to
remove from the federal courts the power to review matters left to the
States by the Constitution and the Tenth Amendment. While the drafting of a
federal statute to narrow federal court jurisdiction would require careful
thought, its objectives are clear: to restore state power, as envisioned by
the Constitution, over a wide range of issues, including state and local
taxation; the terms of employment of state and local governmental
employees; educational standards, funding and transportation; state
welfare, housing and transportation matters; the drinking age; abortion;
local commerce; and so forth.
An "Exceptions Clause" statute to remove the power of the federal courts
over school bussing might read: "No court of the United States, as herein
defined, shall have jurisdiction to issue any order in a case involving or
growing out of a dispute involving the transportation of students to
achieve a racial balance in schools or classrooms; nor shall any order
regarding the transportation of students to achieve a racial balance in
schools or classrooms be issued contrary to the public policy declared in
this Act."
A Constitutional Amendment. Although more difficult to achieve,
Constitutional amendments offer another viable method of restoring and
strengthening federalist principles. In fact, to settle the issue of
federalism with some degree of finality, a Constitutional amendment would
be the most appropriate solution. The most direct approach would be to
enact a constitutional amendment to clarify the Tenth Amendment, and while
I do not offer the following as draft language of a constitutional
amendment, it does convey the spirit of what needs to be enacted: "The
several states and the people shall have all powers not expressly delegated
herein to the federal government or which are directly necessary to, and
inse