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Title: Ninth Circuit: Right to Bear Arms Includes Right to Acquire Arms
Source:
Breitbart
URL Source: http://www.breitbart.com/california ... s-includes-right-acquire-arms/
Published: May 16, 2016
Author: Awr Hawkins
Post Date: 2016-05-16 22:55:10 by cranky
Keywords: None
Views: 59252
Comments: 164
Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'” Teixeira revolves around Alameda County zoning rules for incorporated areas that not only require a gun store owner to obtain requisite local, state, and federal permits for the business, but also make sure “the proposed location of the business is not within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.'” After being denied the requisite county permits to open “Valley Guns and Ammo” — due to complaints of persons within 500 feet of the proposed business — Plaintiff John Teixeira contended that the “500-foot rule” was tantamount to a backdoor ban on gun stores. And while there was some question over the exact distance between the proposed store and some of those who complained, the issue for Teixeira turned on the right of due process and other rights protected by the Second Amendment. Teixeira challenged Alameda County’s decision in the United States District Court for the Northern District of California and lost. He then appealed the case to the 9th Circuit Court, where the ruling has remanded the case to the lower court. In summarizing the latest ruling, the court pointed to the Ninth Circuit’s position that Alameda County “had offered nothing to undermine the panel’s conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms.” Writing in the Majority Opinion, 9th Circuit Judge Diarmuid O’Scannlain emphasized, “Our forefathers recognized that the prohibition of commerce in firearms worked to undermine the right to keep and to bear arms.” O’Scannlain also pointed to the recognition of the importance of buying and selling firearms from the time of the English Bill of Rights (1689) to founding of the United States. Regarding the era in which the United States was founded, O’Scannlain explained that the states which ratified that Second Amendment did so believing they were not simply protecting a right to keep and bear arms but to buy and sell them as well. He wrote: The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.”
The U.S. Court of Appeals for the Ninth Circuit ruled Monday that the right to bear arms has historically included the right to acquire them, and remanded the case of Teixeira v. County of Alameda to the lower court.
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#75. To: nolu chan (#73)
Of course Madison knew what they were about, -- but even he, (a slave owner) said that in order to 'sell' the BOR'S to the slave States. Madison shaded/compromised the truth (that the BOR'S applied to States) in order to get the slave States to ratify. To Madison, ratification was more important than a white 'lie'. Because they were attempting to save the Union by telling the slave States what they insisted hearing. -- It worked, --- for a while.
Just yesterday, our leader asked for a bit more civility. Do you feel exempt? Belied by your foul mouth just above.
In 1833? You are a fucking idiot. (Actually you just post make believe fiction to be a pain in the ass, but I like to call you a fucking idiot for doing it.) I suppose that the States, today, are allowed to ignore the 5th Amendment requirement to obtain a presentment or indictment of a Grand Jury in order to save the union too. Whatever are they trying to tell the slave states today? You are so full of shit. Amazingly, after the Civil War, the authors of the Fourteenth Amendment stated that the 14th was needed precisely because the Bill of Rights did not apply to the States. Indeed, was John Bingham "attempting to save the Union by telling the slave States what they insisted hearing?" In 1871. And why was he so down on the racist assholes on Illinois? Had he read the Collected Works of Abraham Lincoln and discovered what old Abe had actually said? Bingham sure was clear and specific about the Illinois assholes. But at least he didn't delve into Illinois' 99-year indentured servitude. But why was Bingham saying these things in 1871? To perpetuate your myth that Madison lied when he said the BoR did not aply to the States, and the unanimous Supreme Court lied when they said the same thing, as you say, "attempting to save the Union by telling the slave States what they insisted hearing"? Representative John Bingham Representative John Bingham and Senator Jacob Howard were co-authors of the Fourteenth Amendment. Cong. Globe, 42nd Cong., 1st Sess. app. 84 (1871) "The amendments [to the Constitution] contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."—7 Peters, p. 250. In this case the city had taken private property for public use, without compensation as alleged, and there was no redress for the wrong in the Supreme Court of the United States; and only for this reason, the first eight amendments were not limitations on the power of the States. And so afterward, in the case of the Lessee of Livingston vs. Moore and others, (7 Peters, 652,) the court ruled, "it is now settled that the amendments [to the Constitution] do not extend to the States." They were but limitations upon Congress. [...] In reëxamining that case of Barron, Mr. Speaker, after my struggle in the House in February, 1866, to which the gentleman has alluded, I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United States, the Chief Justice said: "Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention." Barron vs. The Mayor, &c, 7 Peters, 250. Acting upon this suggestion I did imitate the framers of the original Constitution. As they had said "no State shall emit bills of credit, pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts imitating their example and imitating it to the letter, I prepared the provision of the first section of the fourteenth amendment as it stands in the Constitution, as follows: "No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States, nor shall any State deprive any person office, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." I hope the gentleman now knows why I changed the form of the amendment of February, 1866. Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges and immunities of citizens of the United States, as contradistinguished from citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. Those eight amendments are as follows: Article I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Article II. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. Article III. No soldier shall, in time of peace, he quartered in any house, without the consent of the owner, nor in time of war, but in the manner to be prescribed by law. Article IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. Article V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in eases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled on any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. Article VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense. Article VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Article VIII.. Excessive bail shall not be required, nor excessive fines, imposed, nor cruel and unusual punishments inflicted. These eight articles I have shown never "were limitations upon the power of the States, until made so by the fourteenth amendment. The words of that amendment, "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," are an express prohibition upon every State of the Union, which may be enforced under existing laws of Congress, and such other laws for their better enforcement as Congress may make. Mr. Speaker, that decision in the fourth of Washington's Circuit Court Reports, to which my learned colleague [Mr. Shellabarger] has referred is only a construction of the second section, fourth article of the original Constitution, to wit, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." In that case the court only held that in civil rights the State could not refuse to extend to citizens of other States the same general rights secured to its own. In the case of The United States vs. Primrose, Mr. Webster said that— "For the purposes of trade, it is evidently not in the power of any State to impose any hinderance or embarrassment, &c, upon citizens of other States, or to place them, on coming there, upon a different footing from her own citizens."—6 Webster's Works, 112. The learned Justice Story declared that— "The intention of the clause ('the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,') was to confer on the citizens of each State a general citizenship, and communicated all the privileges and immunities which a citizen of the same State would be entitled to under the same circumstances." — Story on the Constitution, vol. 2, page 605. Is it not clear that other and different privileges and immunities than those to which a citizen of a State was entitled are secured by the provision of the fourteenth article, that no State shall abridge the privileges and immunities of citizens of the United States, which are defined in the eight articles of amendment, and which were not limitations on the power of the States before the fourteenth amendment made them limitations? Sir, before the ratification of the fourteenth amendment, the State could deny to any citizen the right of trial by jury, and it was done. Before that the State could abridge the freedom of the press, and it was so done in half of the States of the Union. Before that a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread. The validity of that State restriction upon the rights of conscience and the duty of life was affirmed, to the shame and disgrace of America, in the Supreme Court of the United States; but nevertheless affirmed in obedience to the requirements of the Constitution. (14 Howard, 19-20. Moore vs. The People.) Under the Constitution as it is, not as it was, and by force of the fourteenth amendment, no State hereafter can imitate the bad example of Illinois, to which I have referred, nor can any State ever repeat the example of Georgia and send men to the penitentiary, as did that State, for teaching the Indian to read the lessons of the New Testament, to know that new evangel, "The pure in heart shall see God."
I have always provided, and wish to assure you, that I will always provide you with the all civility and courtesy you deserve. Belied by your foul mouth just above. Not at all. You were surely provided all the civility and courtesy you deserve. You are just one of those loons who feels entitled.
The UNANIMOUS U.S. SUPREME COURT in Barron v. Baltimore were attempting to save the Union by telling the slave States what they insisted hearing. -- It worked, --- for a while. You bet, as the question of slavery was a main issue long before the war started. You are a fucking idiot. (Actually you just post make believe fiction to be a pain in the ass, but I like to call you a fucking idiot for doing it.) You suppose erroneously. It's just not an issue, despite your obsession about it. Yep, that was the common misconception. -- So the 14th was passed, but still weirdos like you kept insisting that States could ignore gun rights, etc. -- We're still trying to educate you socialistic statists, with little success. No, he was trying to make sure our individual freedoms were not infringed. -- Clowns like you are still working against that principle.
per a like one keep love If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !
I'm beating on your sorry ass so bad, could you please affirm that you are over 12 years old. I don't want anyone to accuse me of child abuse. [tpaine #39] Read below: --- "on a presentment or indictment". Here, tpaine got caught bullshitting that States used a presentment rather than a Grand Jury, per the 5th amendment. As I documented at #40, to which tpain has never responded, he only documented that he was too ignorant to know that a presentment is made by a grand jury, and he was too lazy to look up a word he did not know. In fact, States typically use an information which is filed without reference to any grand jury or an indictment. It is filed by a competent public officer on his oath rather than by a grand jury on their oath. [tpaine #79] You suppose erroneously. It's just not an issue, despite your obsession about it. Now, the stupid shithead chooses to make believe States are not bound by the Fifth Amendment "presentment or indictment of a Grand Jury" requirement because "[i]t's just not an issue." That's one way to say he had his ass handed to him. Again. Originally, NONE of the Bill of Rights applied to the States. After the Fourteenth Amendment, the Court has selectively incorporated parts of the Bill of Rights into the Fourteenth Amendment and made them applicable to the States. The Fifth Amendment "presentment or indictment of a Grand Jury" requirement has never been so incorporated and has never applied to the States. FIFTH AMENDMENT for tpaine and other Idiots Prior to the Fourteenth Amendment and the subsequent selective incorporation of portions of the Bill of Rights. Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. tpaine hilariously argues that amendments to the Constitution can be unconstitutional, and the the entire Bill of Rights has always applied to the States since it was ratified in 1791. Of course, only a fucking idiot could look at it and make such an imbecilic argument. FIRST AMENDMENT for tpaine and other Idiots or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Congress shall make no law. The New Oxford American Dictionary, Second Edition. Law Dictionary, Second Edition, Barron's Educational Series, Inc., Steven F. Gifis Black's Law Dictionary, 6th Edition Congress refers specifically to the two Federal legislative bodies, the Senate and the House of Representatives. The First Amendment specifically and explicitly states that the United States or Federal Congress may pass no law such as those specified. It has no applicability whatsoever to any State government. It now has indirect applicability via the 14th Amendment. Only a fucking idiot, such as tpaine, could make believe that "Congress shall make no law," in the words of the First Amendment, was speaking to State governments. As John Bingham stated in congressional debate on the floor of the House, in justification of the need for the 14th Amendment, "These eight articles I have shown never 'were limitations upon the power of the States, until made so by the Fourteenth Amendment.' . . . Sir, before ratification of the fourteenth amendment . . . the State could abridge the freedom of the press, and it was so done in half the States of the Union." Of course, it does not end at the First Amendment. The Seventh Amendment has never been incorporated into the Fourteenth Amendment, and the States are free to ignore it as it has never applied to them. Let me review it and let tpaine look at it for the first time in his life. SEVENTH AMENDMENT FOR tpaine and other IDIOTS In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law. Every time tpaine has a pissing contest, and the value in controversy exceeds 20 dollars, tpaine hallucinates he is entitled to a jury trial. Heard of Small Claims Court, you fucking idiot? The Seventh Amendment does not apply and control State court procedures, and has never applied to or controled State court procedures. It is part of the Bill of Rights but it does not apply to the States. Your bullshit is just bullshit. When faced with reality, it falls apart. Law Dictionary, Second Edition, Barron's Educational Series, Inc., Steven F. Gifis Black's Law Dictionary, Sixth Edition http://law.justia.com/codes/us/2013/title-28/part-v/chapter-111/section-1652/ State laws as rules of decision - 28 U.S.C. § 1652 (2013) §1652. State laws as rules of decision The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply. (June 25, 1948, ch. 646, 62 Stat. 944.) HISTORICAL REVISION NOTES Based on title 28, U.S.C., 1940 ed., §725 (R.S. §721). "Civil actions" was substituted for "trials at common law" to clarify the meaning of the Rules of Decision Act in the light of the Federal Rules of Civil Procedure. Such Act has been held to apply to suits in equity. Changes were made in phraseology. Edwards v Elliott, 88 US 532 (1874) Two answers may be made to that objection, either of which is decisive: (1) That it does not apply to trials in the state courts. [Footnote 17] (2) That no such error was assigned in the Court of Errors, and that the question was not presented to, nor was it decided by, the Court of Errors. - - - - - [Footnote 17] Barron v. Baltimore, 7 Pet. 247; Twitchell v. Commonwealth, 7 Wall. 326; Livingston v. Moore, 7 Pet. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 How. 76; Cooley on Constitutional Limitations, 2d ed. 19. Walker v. Sauvinet, 92 U.S. 90 (1875) So far as we can discover from the record, the only Federal question decided by either one of the courts below was that which related to the right of Walker to demand a trial by jury, notwithstanding the provisions of the act of 1871 to the contrary. He insisted that he had a constitutional right to such a trial, and that the statute was void to the extent that it deprived him of this right. All questions arising under the Constitution of the State alone are finally settled by the judgment below. We can consider only such as grow out of the Constitution of the United States. By art. 7 of the amendments, it is provided, that "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved." This, as has been many times decided, relates only to trials in the courts of the United States. Edwards v. Elliot, 21 Wall. 557. The States, so far as this amendment is concerned, are left to regulate trials in their own courts in their own way. A trial by jury in suits at common law pending in the State courts is not, therefore, a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge. A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Murray's Lessee v. Hoboken L. I. Co., 18 How. 280. Due process of law is process due according to the law of the land. This process in the States is regulated by the law of the State. Our power over that law is only to determine whether it is in conflict with the supreme law of the land, — that is to say, with the Constitution and laws of the United States made in pursuance thereof, — or with any treaty made under the authority of the United States. Art. 6 Const. Here the State court has decided that the proceeding below was in accordance with the law of the State; and we do not find that to be contrary to the Constitution, or any law or treaty of the United States. The other questions presented by the assignment of errors and argued here cannot be considered, as the record does not show that they were brought to the attention of either of the courts below. Judgment affirmed. MR. JUSTICE FIELD and MR. JUSTICE CLIFFORD dissented from the opinion and judgment of the court. Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996) [14] See Walker v. Sauvinet, 92 U.S. 90, 92 (1876). http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=40620 http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=40732 Of course, for the best hilarity, tpaine previously argued that an amendment to the Constitution which did not meet with his approval would be unconstitutional. He attempted to buttress his idiotic argument by citing the losing argument of Elihu Root against the 18th Amendment on prohibition. But Root had not only lost, but he had argued that it was an ordinary piece of legislation and not an amendment at all. Of course, the Congress is only empowered to legislate pursuant to the Constitution, and any amendment is part of the Constitution. And the judiciary is no help. https://supreme.justia.com/cases/federal/us/258/126/case.html Fairchild v. Hughes, 258 U.S. 126 (1922) Page 258 U. S. 127 MR. JUSTICE BRANDEIS delivered the opinion of the Court. On July 7, 1920, Charles S. Fairchild, of New York, brought this suit in the Supreme Court of the District of Columbia against the Secretary of State and the Attorney General. The prayers of the bill are that "the so-called Suffrage Amendment [the Nineteenth to the federal Constitution] be declared unconstitutional and void;" that the Secretary of State be restrained from issuing any proclamation declaring that it has been ratified, and that the Attorney General be restrained from enforcing it. There is also a prayer for general relief and for an interlocutory injunction. The plaintiff and others on whose behalf he sues are citizens of the United States, taxpayers, and members of the American Constitutional League, a voluntary association which describes itself as engaged in diffusing "knowledge as to the fundamental principles of the American Constitution, and especially that which gives to each state the right to determine for itself the question as to who should exercise the elective franchise therein." The claim to relief was rested upon the following allegations: the legislatures of 34 of the states have passed resolutions purporting to ratify the Suffrage Amendment, and from one other state the Secretary of the United States has received a certificate to that effect purporting to come from the proper officer. The proposed amendment cannot, for reasons stated, be made a part of the Constitution through ratification by the legislatures, and there are also specific reasons why the resolutions already adopted in several of the states are inoperative. But the Secretary has declared that he is 258 U. S. 128 without power to examine into the validity of alleged acts of ratification, and that, upon receiving from one additional state the customary certificate, he will issue a proclamation declaring that the Suffrage Amendment has been adopted. Furthermore, "a force bill" has been introduced in the Senate, which provides fine and imprisonment for any person who refuses to allow women to vote, and if the bill is enacted, the Attorney General will be required to enforce its provisions. The threatened proclamation of the adoption of the amendment would not be conclusive of its validity, but it would lead election officers to permit women to vote in states whose Constitutions limit suffrage to men. This would prevent ascertainment of the wishes of the legally qualified voters, and elections, state and federal, would be void. Free citizens would be deprived of their right to have such elections duly held, the effectiveness of their votes would be diminished, and election expenses would be nearly doubled. Thus, irremediable mischief would result. The Supreme Court of the District granted a rule to show cause why an interlocutory injunction should not issue. The return was promptly made, and the defendants also moved to dismiss the bill. On July 14, 1920, the rule was discharged, a decree was entered dismissing the bill, and an appeal was taken to the Court of Appeals of the District. The Secretary, having soon thereafter received a certificate of ratification from the thirty-sixth state, proclaimed, on August 26, 1920, the adoption of the Nineteenth Amendment. The defendants then moved to dismiss or affirm. The Court of Appeals affirmed the decree, on the authority of United States v. Colby, 49 App.D.C. 358, 265 F. 998, where it had refused to compel the Secretary to cancel the proclamation declaring that the Eighteenth Amendment had been adopted. The grounds of that decision were that the validity of the amendment could be in no way affected by an order 258 U. S. 129 of cancellation; that it depended on the ratifications by the states, and not on the proclamation, and that the proclamation was unimpeachable, since the Secretary was required, under Revised Statutes, § 205, to issue the proclamation upon receiving from three-fourths of the states official notice of ratification, and had no power to determine whether or not the notices received stated the truth. But we have no occasion to consider these grounds of decision. Plaintiff's alleged interest in the question submitted is not such as to afford a basis for this proceeding. It is frankly a proceeding to have the Nineteenth Amendment declared void. In form it is a bill in equity; but it is not a case, within the meaning of § 2 of Article III of the Constitution, which confers judicial power on the federal courts, for no claim of plaintiff is "brought before the court[s] for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs." See In re Pacific Railway Commission, 32 F. 241, 255, quoted in Muskrat v. United States, 219 U. S. 346, 219 U. S. 357. The alleged wrongful act of the Secretary of State said to be threatening is the issuing of a proclamation which plaintiff asserts will be vain, but will mislead election officers. The alleged wrongful act of the Attorney General said to be threatening is the enforcement, as against election officers, of the penalties to be imposed by a contemplated act of Congress which plaintiff asserts would be unconstitutional. But plaintiff is not an election officer, and the State of New York, of which he is a citizen, had previously amended its own Constitution so as to grant the suffrage to women, and had ratified this amendment. Plaintiff has only the right, possessed by every citizen, to require that the government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the 258 U. S. 130 federal courts a suit to secure by indirection a determination whether a statute, if passed, or a constitutional amendment about to be adopted will be valid. Compare Giles v. Harris, 189 U. S. 475; Tyler v. Judges of Court of Registration, 179 U. S. 405. Decree affirmed. As for the Natural Law bullshit that tpaine likes to make believe is in the Constitution, Justice Oliver Wendell Holmes spoke to that. While the Declaration of Independence, which was never law, spoke loftily about inalienable rights, the Constitution, which is law, dealt with reality. Oliver Wendell Holmes The Harvard Law Review 1918 It is not enough for the knight of romance that you agree that his lady is a very nice girl—if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law. I used to say when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct insofar as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view. If … the truth may be defined as the system of my (intellectual) limitations, what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can’t Helps. If I think that I am sitting at a table I find that the other persons present agree with me; so if I say that the sum of the angles of a triangle is equal to two right angles. If I am in a minority of one they send for a doctor or lock me up; and I am so far able to transcend the to me convincing testimony of my sense or my reason as to recognize that if I am alone probably something is wrong with my works. Certitude is not the test of certainty. We have been cocksure of many things that were not so. If I may quote myself again, property, friendship, and truth have a common root in time. One cannot be wrenched from the rocky crevices into which one has grown for many years without feeling that one is attacked in one’s life. What we most love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them were my earliest joys that reach back through the past eternity of my life. But while one’s experience thus makes certain preferences dogmatic for oneself, recognition of how they came to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else. And this again means skepticism. Not that one’s belief or love does not remain. Not that we would not fight and die for it if important—we all, whether we know it or not, are fighting to make the kind of a world that we should like—but that we have learned to recognize that others will fight and die to make a different world, with equal sincerity or belief. Deep-seated preferences cannot be argued about—you cannot argue a man into liking a glass of beer—and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way. But that is perfectly consistent with admitting that, so far as appears, his grounds are just as good as ours. The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by all men everywhere. No doubt it is true that, so far as we can see ahead, some arrangements and the rudiments of familiar institutions seem to be necessary elements in any society that may spring from our own and that would seem to us to be civilized—some form of permanent association between the sexes—some residue of property individually owned—some mode of binding oneself to specified future conduct—at the bottom of all, some protection for the person. But without speculating whether a group is imaginable in which all but the last of these might disappear and the last be subject to qualifications that most of us would abhor, the question remains as to the Ought of natural law. It is true that beliefs and wishes have a transcendental basis in the sense that their foundation is arbitrary. You cannot help entertaining and feeling them, and there is an end of it. As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. To do it they must eat and drink. That necessity is absolute. It is a necessity of less degree but practically general that they should live in society. If they live in society, so far as we can see, there are further conditions. Reason working on experience does tell us, no doubt, that if our wish to live continues, we can do it only on those terms. But that seems to me the whole of the matter. I see no a priori duty to live with others and in that way, but simply a statement of what I must do if I wish to remain alive. If I do live with others they tell me that I must do and abstain from doing various things or they will put the screws on to me. I believe that they will, and being of the same mind as to their conduct I not only accept the rules but come in time to accept them with sympathy and emotional affirmation and begin to talk about duties and rights. But for legal purposes a right is only the hypostasis of a prophecy—the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it—just as we talk of the force of gravitation accounting for the conduct of bodies in space. One phrase adds no more than the other to what we know without it. No doubt behind these legal rights is the fighting will of the subject to maintain them, and the spread of his emotions to the general rules by which they are maintained; but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a preexisting right. A dog will fight for his bone. The most fundamental of the supposed preexisting rights—the right to life—is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it. Whether that interest is the interest of mankind in the long run no one can tell, and as, in any event, to those who do not think with Kant and Hegel it is only an interest, the sanctity disappears. I remember a very tender-hearted judge being of opinion that closing a hatch to stop a fire and the destruction of a cargo was justified even if it was known that doing so would stifle a man below. It is idle to illustrate further, because to those who agree with me I am uttering commonplaces and to those who disagree I am ignoring the necessary foundations of thought. The a priori men generally call the dissentients superficial. But I do agree with them in believing that one’s attitude on these matters is closely connected with one’s general attitude toward the universe. Proximately, as has been suggested, it is determined largely by early associations and temperament, coupled with the desire to have an absolute guide. Men to a great extent believe what they want to—although I see in that no basis for a philosophy that tells us what we should want to want. [...]
Do Make love If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !
Historical note: The Federalists originally held the presidency, the legislature, and all seats on the Supreme Court. After the Adams administration, the Federalists were thrashed in every election until they went extinct around 1820. In 1833, Marshall was the only justice on the court nominated by a Federalist (Adams). No Washington appointees were left. CIRCA 1791: [tpaine #75] Of course Madison knew what they were about, -- but even he, (a slave owner) said that in order to 'sell' the BOR'S to the slave States. Madison shaded/compromised the truth (that the BOR'S applied to States) in order to get the slave States to ratify. Sometimes you just wonder why did did all that lying but Washington, Jefferson, and Madison didn't just set their slaves free. Maybe we wouldn't have a Declaration of Independence if Jupiter had not kept tom supplied with mint juleps or sweet tea. CIRCA 1833 [tpaine at #79] You bet, as the question of slavery was a main issue long before the war started. TODAY [tpaine at #79] You suppose erroneously. It's just not an issue, despite your obsession about it. Because, at this point, what difference does it make! The states can try, convict and sentence to death without a grand jury. Hurtado v California, 110 US 516 (1884) Of course, the States also ignore the 7th Amendment wholesale, disregarding the Federal requirement for a jury trial in suits at common law (civil suits) where the amount in controversy is more than $20. They have been ignoring that non-requirement for more than two centuries. THE POST CIVIL WAR ERA I have quoted John Bingham extensively stating that the original Bill of Rights did not apply to the States, and this was what necessitated the Fourteenth Amendment of which Bingham was a co-author. tpaine seems at a loss to explain whether Bingham was just lying in 1866 and 1872, or it just was not an issue. It seems unlikely he ws lying in 1872 in order to get slave states to ratify anything. And a fine thing it was, all that worrying about slavery. None of that for Illinois. No, sir. They were civilized. They had ninety-nine year indentured servitude. http://www.eiu.edu/past_tracker/1818_Indenture_Transcription.pdf
Please keep wasting your time posting OPINIONS that buttress your opinion above.. You cannot refute that the Constitution itself clearly says otherwise: --- "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
As you wish. And you keep avoiding posting anything that buttresses your bullshit. Senator Jacob Howard Representative John Bingham and Senator Jacob Howard were co-authors of the Fourteenth Amendment. Cong. Globe, 39th Cong., 1st Sess. 2765-66 (1866) Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment? As I have remarked, they are not powers granted to Congress, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end. This is done by the fifth section of this amendment, which declares' that " the Congress shall have power to enforce by appropriate legislation the provisions of this article." Here is a direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.
Please, keep wasting your time posting OPINIONS that buttress your opinion above.. I'll repeat my last post, which buttresses my position, which you cannot refute, and is part of our Constitution, NOT bullshit: --- "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
As you wish. And you keep avoiding posting anything that buttresses your bullshit. Thaddeus Stevens, Congressional Globe, 39th Cong., 1st Sess., Vol. 3, pg. 2459, (May 8, 1866) The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the "equal" protection of the laws. I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all.
Please, keep wasting your time posting OPINIONS that buttress your opinion above.. I'll repeat my last post, which buttresses my position, which you cannot refute, and is part of our Constitution, NOT bullshit: --- "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Your reply, quoting the OPINION of Thaddeus Stevens: --- "But the Constitution limits only the action of Congress, and is not a limitation on the States." ---- Is somehow supposed to refute the constitutional quote I posted? You reAlly do need rest, as your posting is increasingly bizarro. GET HELP.
As Supremacy Clause pertains to a conflict of laws. As the Bill of Rights originally did not apply to the States, there was no conflict between the inapplicable Bill of Rights and any State laws. The members of the union are the States (Art. 8). The States ratified the amendments called the Bill of Rights to place clear restraints on the powers of the Federal government. Amendments to the Federal charter, limiting the powers of the Federal government, do not apply to the States. The Bill of Rights limits and restrains Federal power, it does not contain any grant or authorization of Federal power. You can keep quoting the Supremacy Clause, but in the context of the original Bill of Rights and State law, it did not do amything, as it created no conflict of laws. When the First Amendment says, "Congress shall pass no law," it speaks to the Federal Congress only. That is why 225 years of American court opinions unanimously say you are full of shit and do not know what you are talking about. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015) “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L.Ed. 23 (1824). It is equally apparent that the Supremacy Clause is not the “ ‘source of any federal rights,’ ” Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) (quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 613, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)), and certainly does not create a cause of action. It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
The Supremacy Clause, Art. VI, cl. 2, reads: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument. You're assuming the BOR'S is "inapplicable"? -- More bizarro reasoning. Yep, and to also protect our rights from all infringements. -- By anyone... There you go again, putting out your opinion as fact. -- It's become a mania. That and more, it limits infringements of our rights from all types of power. The fact that the first specifies congress, --- does not mean that others can infringe on our rights. In your opinion, they can.. Your opinion is one long held by STATISTS of every stripe. Feel proud?
tpaine, you are a fucking idiot. Your douchebaggery in your #90 does not criticize my words but the quoted words of Justice Antonin Scalia in an opinion of the U.S. Supreme Court. You are a truly exceptional child. You are apparently to dumb, stupid, and ignorant to realize that 135 S.Ct. 1378 signifies a U.S. Supreme Court case. You do a good job of telling Justice Scalia that he just can't help himself and that he just can't stop his inane form of argument. What an asshole you are. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015). The material printed in blue font is quoted directly from Armstrong, an Opinion of the U.S. Supreme Court by Justice Antonin Scalia., slip op at 5. [tpaine #90] A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? [tpaine #90] You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... [tpaine #90] You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument.
Justice Scalia continued in Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015).
Araya v JPMorgan Chase Bank, NA, 775 F3d 409, 414-15 (DC Cir 2014)
Armstrong v. Exceptional Child Center, Inc. Leading Case : 135 S. Ct. 1378 (2015) NOV 10, 2015 129 Harv. L. Rev. 211 Mindful of the common law maxim “that where there is a legal right, there is also a legal remedy,”1× the Supreme Court has often inferred a private right of action in the face of statutory or constitutional silence.2× In recent decades, however, the Court has retreated from this general remedial approach, narrowing the availability of implied rights of action by drawing distinctions among various remedies and legal interests.3× Last Term, in Armstrong v. Exceptional Child Center, Inc.,4× the Court at once simplified and complicated the landscape — unifying5× the disparate treatment of statutory damages and affirmative injunctions while hinting at yet another exception for the award of negative relief.6× Though the Court claimed to rely exclusively on earlier decisions when resolving Armstrong, the outcome is difficult to explain as a straightforward application of precedent. The Court instead could have relied convincingly on common law reasoning that traces back to Justice Harlan’s concurrence in Bivens. And even though the Court eschewed this mode of analysis, the common law nature of the Court’s private-rights-of-action jurisprudence supports Armstrong’s attempt to unify the statutory context by ratcheting down the formerly permissive treatment of affirmative injunctions. Medicaid is a federal–state program that subsidizes the states’ provision of medical care to low-income individuals.7× State participation in the program is voluntary, but states receiving federal funds must develop a state plan that complies with the terms of the Medicaid Act.8× Among other requirements, § 30(A) of the Act requires that such plans contain procedures to ensure that reimbursement rates for health care providers are consistent with “quality of care and are sufficient to enlist enough providers” in the geographic area.9× The State of Idaho administers a federally approved Medicaid plan, which includes residential habilitation services for individuals with developmental disabilities.10× In 2005, Idaho’s legislature revised the methodology for determining reimbursement rates for habilitation service providers, requiring state officials to consider the actual costs incurred by providers.11× In 2009, after conducting various cost studies, state officials proposed that the applicable reimbursement rates be increased.12× The proposed rates, however, were never implemented because the Idaho legislature did not appropriate the necessary funds.13× Five providers of habilitation services (the “Providers”) filed suit in the District of Idaho against two officials responsible for administering the state’s Medicaid program, claiming that the prevailing reimbursement rates were too low to satisfy the conditions of § 30(A) and thus were preempted by the Act.14× The Providers asked the court to issue an injunction ordering the state officials to increase the rates.15× The district court granted summary judgment for the Providers.16× The court rejected the argument that the Providers lacked a valid cause of action, holding that Ninth Circuit precedent “clear[ly]” established that “providers have standing under the Supremacy Clause” to challenge a state law reducing reimbursement rates in violation of § 30(A).17× On the merits, Chief Judge Winmill concluded that the state’s continued use of the 2006 reimbursement rates violated § 30(A) because the rates did not incorporate “actual provider costs.”18× The Ninth Circuit affirmed by unpublished disposition.19× From the outset, the court maintained that the “Providers have an implied right of action under the Supremacy Clause” to enjoin the implementation of state legislation.20× Turning to § 30(A), the Ninth Circuit affirmed the district court’s determination that the rates had impermissibly “remained in place for ‘purely budgetary reasons.’”21× The Supreme Court reversed.22× Writing for the Court, Justice Scalia23× held that the Supremacy Clause does not create a freestanding cause of action.24× Rather, the “ability to sue to enjoin unconstitutional actions by state and federal officers” is an equitable, “judge-made remedy” that can be foreclosed by Congress.25× Relying on both text and history, Justice Scalia concluded that the Supremacy Clause establishes a mere “rule of decision.”26× Read simply, the clause “instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court.”27× And read in context, “imposing mandatory private enforcement”28× of federal law would conflict with the enforcement regime established in Article I, which vests Congress with broad discretion to guide the implementation of its laws.29× Finally, the “conspicuous absence” of any mention in the preratification historical record that the clause created such significant private rights “militate[d] strongly against” the Providers’ position.30× Having dispensed with a claim to relief under the Supremacy Clause, the Court identified the longstanding Ex parte Young31× 31. 209 U.S. 123 (1908). right of action to enjoin unlawful executive acts as a “creation of courts of equity” that could be displaced by Congress through “express and implied statutory limitations.”32× According to the Court, two features of § 30(A) implicitly foreclosed equitable relief. First, similar to the statute in Alexander v. Sandoval,33× the express provision of one method of enforcing the requirements of the Act — the Secretary’s withholding of Medicaid funds — indicated that Congress intended to foreclose other remedies.34× Second, the “judicially unadministrable nature of § 30(A)’s text”35× demonstrated, as in Gonzaga University v. Doe,36× that Congress “wanted to make the agency remedy that it provided exclusive.”37× Taken together, the Court held that the Act displaced an equitable remedy to enforce § 30(A).38× I copied the above from the Harvard law review, and fail to see what Scalia's comments (in bold above) have to do with our debate on States having the power to ignore the BOR'S. Your playing 'gotcha' with selective quotes of Scalia's OPINIONS 'got' me, to be sure. -- But really, those quotes are irrelevant, and you know it. --- Your desperation is becoming ever more evident…
Hamilton wrote that the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government.” The Federalist No. 33, p. 207 (J. Cooke ed.1961). And Story described the Clause as “a positive affirmance of that, which is necessarily implied.” 3 Commentaries on the Constitution of the United States § 1831, p. 693 (1833). These descriptions would have been grossly inapt if the Clause were understood to give affected parties a constitutional (and hence congressionally unalterable) right to enforce federal laws against the States. You continue posting Scalia's OPINIONS. They prove nothing in our debate, except your maniac/statist desperation. Thanks
Bullshit - you spent your entire career as a cop, and as we all know, cops lie. Misrepresentation, deception, and outright lying appear to be part of a police officer’s job description, so much so that the term “testilying,” now common vernacular for police falsifications, was actually coined by NYPD officers as something of an inside joke. And you continue your lies here - I guess old habits are hard to break, eh pig? More desperate opinion, that proves nothing. Ho hum..
[tpaine #94] I copied the above from the Harvard law review, and fail to see what Scalia's comments (in bold above) have to do with our debate on States having the power to ignore the BOR'S. You boldfaced comments of the anonymous Harvard Law Review article, not comments of Justice Scalia as they appear in Armstrong. The opinion of the U.S. Supreme Court is not changed by an anonymous Harvard Law Review article. The article does not replace the actual court opinion. You here forget that the Supremacy Clause, quoted and commented upon by Justice Scalia was quoted and relied upon by you to allege it somehow buttressed your bullshit about the Bill of Rights being applicable to the States prior to the Fourteenth Amendment. Here you correctly observe, as does Scalia, that the Supremacy Clause does not have a damned thing to do with applying the Bill of Rights to the States. As Scalia stated, the Supremacy Clause "instructs courts what to do when state and federal law clash." As well documented at my #89, with the Bill of Rights, the States placed restrictions on the Federal government. There is no grant of power to do anything, and no conflict of Federal and State law was created. Your display of assholery with the comments of Justice Scalia demonstrates the generic shitheadedness of your comments. You thought the comments were mine and, in typical fashion, mindlessly made idiotic disparaging comments. And then you find out that you were responding to Justice Scalia with, "You really can't help yourself, can you...." Justice Scalia was the foremost original intent justice of his generation. Now you can justify why you believe Justice Scalia "just can't help" himself. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015). Antonin Scalia., slip op at 5. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: [tpaine #90] A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? [tpaine #90] You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... [tpaine #90] You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument. At my #89: The members of the union are the States (Art. 8). The States ratified the amendments called the Bill of Rights to place clear restraints on the powers of the Federal government. Amendments to the Federal charter, limiting the powers of the Federal government, do not apply to the States. The Bill of Rights limits and restrains Federal power, it does not contain any grant or authorization of Federal power. You can keep quoting the Supremacy Clause, but in the context of the original Bill of Rights and State law, it did not do amything, as it created no conflict of laws. When the First Amendment says, "Congress shall pass no law," it speaks to the Federal Congress only. That is why 225 years of American court opinions unanimously say you are full of shit and do not know what you are talking about. [tpaine #84] Please keep wasting your time posting OPINIONS that buttress your opinion above.. You cannot refute that the Constitution itself clearly says otherwise: --- "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [tpaine #86] "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." [tpaine #88] "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." http://cdn.harvardlawreview.org/wp-content/uploads/2015/11/armstrong_v_exceptional.pdf Harvard Law Review, The Supreme Court — Leading Cases, Vol. 129:211, no author cited. Article VI — Private Rights of Action — Equitable Remedies to Enforce the Medicaid Act — Armstrong v. Exceptional Child Center, Inc. Excerpt, pages 212-13: The Ninth Circuit affirmed by unpublished disposition. From the outset, the court maintained that the “Providers have an implied right of action under the Supremacy Clause” to enjoin the implementation of state legislation. Turning to § 30(A), the Ninth Circuit affirmed the district court’s determination that the rates had impermissibly “remained in place for ‘purely budgetary reasons.’” The Supreme Court reversed. Writing for the Court, Justice Scalia held that the Supremacy Clause does not create a freestanding cause of action. Rather, the “ability to sue to enjoin unconstitutional actions by state and federal officers” is an equitable, “judge-made remedy” that can be foreclosed by Congress. The 9th Circuit found a right of action under the Supremacy Clause to enjoin the implementation of state legislation. The Supreme Court found that no such right of action existed under the Supremacy Clause. That's the same Supremacy Clause you keep quoting, thinking it somehow made the Bill of Rights applicable to the States.
You continue posting Scalia's OPINIONS. They prove nothing in our debate, except your maniac/statist desperation. Actually, I posted a majority Opinion of the United States Supreme Court, and the holding is the law of the land. Deal with it.
More desperate opinion, that proves nothing. Ho hum.. Actually, I quoted the opinion of the Court, so fuck you. I will keep citing and quoting as there is no end of court opinions which say you are full of shit. With 225 years of opinions to work with, it is obvious that you cannot quote a single one that says the Bill of Rights applies to and restricts the States. The quoted opinion is from 2014. The Fourteenth Amendment applies to the States, and so much of the Bill of Rights which has been incorporated into the Fourteenth Amendment applies to the States via the Fourteenth Amendment. Have another court opinion saying you are full of shit. Parker v. D.C., 478 F.3d 370 (D.C. Cir. 2007) Thank you for participating in the creation of this thread to document your stupid assholery and to serve as a monument to the same.
Misrepresentation, deception, and outright lying appear to be part of a police officer’s job description, so much so that the term “testilying,” now common vernacular for police falsifications, was actually coined by NYPD officers as something of an inside joke. And you continue your lies The United States Supreme Court (which by the way is WAY MORE important that you) has ruled that LE can be deceptive... "For example, the U.S. Supreme Court has allowed police to falsely claim that a suspect's confederate confessed when in fact he had not (Frazier v. Cupp, 1969) and to have found a suspect's fingerprints at a crime scene when there were none (Oregon v. Mathiason, 1977), determining such acts insufficient for rendering the defendant's confession inadmissible. State courts have permitted police to deceive suspects about a range of factual matters, including, for example, falsely stating that incriminating DNA evidence and satellite photography of the crime scene exist (State v. Nightingale, 2012). Who's fault is it that one of your career criminal scumbags you defend 24/7 confesses to a crime from a lie he/she believes? So shut your Paultard cop hating anarchist cum dumpster. I'm the infidel... Allah warned you about. كافر المسلح
You continue posting Scalia's OPINIONS. They prove nothing in our debate, except your maniac/statist desperation. Majority opinion holdings are NOT the law of the land. Only our Constitution holds that distinction.--- Deal with it. More desperate opinion, that proves nothing. Ho hum.. How often must you be told, opinions do not affect our Constitution. And your foul mouth won't change it either, punk. I don't quote court opinions, I cited our Constitution, [Art VI] which it's obvious you hate. Get lost... -- Or continue to make a punk fool of yourself. -- I'm indifferent to your foul idiocies.
What is obvious is that you do not understand Article VI any better than you understand the rest of the Constitution. I quoted court opinions about the Supremacy Clause and it is obvious you hate the truth. The Supremacy Clause pertains to a conflict of laws. The the Bill of Rights originally did not apply to the States, there was no conflict between the inapplicable Bill of Rights and any State laws. The members of the union are the States (Art. 8). The States ratified the amendments called the Bill of Rights to place clear restraints on the powers of the Federal government. Amendments to the Federal charter, limiting the powers of the Federal government, do not apply to the States. The Bill of Rights limits and restrains Federal power, it does not contain any grant or authorization of Federal power. You can keep quoting the Supremacy Clause, but in the context of the original Bill of Rights and State law, it did not do anything, as it created no conflict of laws. When the First Amendment says, "Congress shall pass no law," it speaks to the Federal Congress only. That is why 225 years of American court opinions unanimously say you are full of shit and do not know what you are talking about. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015), Opinion of the Court by Scalia, J. Idiot tpaine thinking he is responding to nolu chan: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: [tpaine #90] A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? [nc] Antonin Scalia "made up that Opinion," and you should care because he did it as an Associate Justice writing a majority opinion of the U.S. Supreme court. [nc] "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803). [tpaine #90] You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... [nc] Scalia was not was writing a majority Opinion of the U.S. Supreme Court. [tpaine #90] You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument. [nc] Justice Scalia was writing a majority Opinion of the U.S. Supreme Court pertaining to what the supremacy clause means. It speaks loudly of your intellect that you find his form of argument to be inane. As for the Bill of Rights, here is another court opinion, there are lots and lots and lots of them. Flaskamp v Dearborn Public Schools, 385 F.3d 935 (6th Cir. 2004)
More desperate court opinion, that proves nothing. Ho hum.. How often must you be told, opinions do not affect our Constitution. And your foul mouth won't change it either, punk. I don't quote court opinions, as they prove nothing. ---- I cited our Constitution, [Art VI] which it's obvious you hate. Get lost... -- Or continue to make a punk fool of yourself. -- I'm indifferent to your foul idiocies. No, it's obvious that you will continue to insist in making a fool of yourself, repeating opinions that prove nothing. Continue if you must, and I will continue to comment and to laugh at your foolish behavior.
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803). Court opinions show what the law is, as opposed to what tpaine wants it to be. As for the Bill of Rights, here is another court opinion, there are lots and lots and lots of them. Stevenson v Lewis, 384 F.3d 1069 (9th Cir. 2004) The Supreme Court has not decided whether the Fourteenth Amendment incorporated the Sixth Amendment's vicinage right. Neither have we. The only circuits to squarely address the issue have concluded that the Fourteenth Amendment did not extend federal vicinage protection to the states. See Caudill v. Scott, 857 F.2d 344, 345-46 (6th Cir. 1988); Cook v. Morrill, 783 F.2d 593, 594-96 (5th Cir. 1986); Zicarelli v. Dietz, 633 F.2d 312, 320-26 (3rd Cir. 1980). Most state courts to address the issue have likewise held that the vicinage clause does not apply to the states. What is obvious is that you do not understand Article VI any better than you understand the rest of the Constitution. I quoted court opinions about the Supremacy Clause and it is obvious you hate the truth. The Supremacy Clause pertains to a conflict of laws. The the Bill of Rights originally did not apply to the States, there was no conflict between the inapplicable Bill of Rights and any State laws. The members of the union are the States (Art. 8). The States ratified the amendments called the Bill of Rights to place clear restraints on the powers of the Federal government. Amendments to the Federal charter, limiting the powers of the Federal government, do not apply to the States. The Bill of Rights limits and restrains Federal power, it does not contain any grant or authorization of Federal power. You can keep quoting the Supremacy Clause, but in the context of the original Bill of Rights and State law, it did not do anything, as it created no conflict of laws. When the First Amendment says, "Congress shall pass no law," it speaks to the Federal Congress only. That is why 225 years of American court opinions unanimously say you are full of shit and do not know what you are talking about. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015), Opinion of the Court by Scalia, J. Idiot tpaine thinking he is responding to nolu chan: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: [tpaine #90] A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? [nc] Antonin Scalia "made up that Opinion," and you should care because he did it as an Associate Justice writing a majority opinion of the U.S. Supreme court. [tpaine #90] You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... [nc] Scalia was writing a majority Opinion of the U.S. Supreme Court. [tpaine #90] You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument. [nc] Justice Scalia was writing a majority Opinion of the U.S. Supreme Court pertaining to what the supremacy clause means. It speaks loudly of your intellect that you find his form of argument to be inane.
Get lost... -- Or continue to make a punk fool of yourself. -- I'm indifferent to your foul idiocies. No, it's obvious that you will continue to insist in making a fool of yourself, repeating opinions that prove nothing. Continue if you must, and I will continue to comment and to laugh at your foolish behavior. ---- I cited our Constitution, [Art VI] which it's obvious you hate. Yep --- Within the bounds of Constitutional restraints, which restraints include Art VI.. --- Thus, if a State law conflicts with the 2nd Amendment, -- the courts must decide on the supremacy of the Constitution.
AMERICUS, JULY TERM, 1846 251 Nunn vs. The State of Georgia The above, quoted from Nunn, destroys your position that prior to the 14th, that there was NO opinion that the 2nd Amendment applied to the States.
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each." Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803). Court opinions show what the law is, as opposed to what tpaine wwants it to be. What is obvious is that you do not understand Article VI any better than you understand the rest of the Constitution. I quoted court opinions about the Supremacy Clause and it is obvious you hate the truth. The Supremacy Clause pertains to a conflict of laws. The the Bill of Rights originally did not apply to the States, there was no conflict between the inapplicable Bill of Rights and any State laws. The members of the union are the States (Art. 8). The States ratified the amendments called the Bill of Rights to place clear restraints on the powers of the Federal government. Amendments to the Federal charter, limiting the powers of the Federal government, do not apply to the States. The Bill of Rights limits and restrains Federal power, it does not contain any grant or authorization of Federal power. You can keep quoting the Supremacy Clause, but in the context of the original Bill of Rights and State law, it did not do anything, as it created no conflict of laws. When the First Amendment says, "Congress shall pass no law," it speaks to the Federal Congress only. That is why 225 years of American court opinions unanimously say you are full of shit and do not know what you are talking about. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015), Opinion of the Court by Scalia, J. Idiot tpaine thinking he is responding to nolu chan: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: [nc] Antonin Scalia "made up that Opinion," and you should care because he did it as an Associate Justice writing a majority opinion of the U.S. Supreme court. [tpaine #90] You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... [nc] Scalia was writing a majority Opinion of the U.S. Supreme Court. [tpaine #90] You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument. [nc] Justice Scalia was writing a majority Opinion of the U.S. Supreme Court pertaining to what the supremacy clause means. It speaks loudly of your intellect that you find his form of argument to be inane. As for the Bill of Rights, here is another court opinion, there are lots and lots and lots of them. Montañez v. State Ins. Fund, 91 F.Supp.3d 291 (D.P.R. 2015)
AMERICUS, JULY TERM, 1846 251 Nunn vs. The State of Georgia The above, quoted from Nunn, destroys your position that prior to the 14th, There was NO opinion that the 2nd Amendment applied to the States. Hey shithead, link to any post where I said that "prior to the 14th, There was NO opinion that the 2nd Amendment applied to the States." And, the Georgia state court in 1846 cannot overrule the precedent set, and still in effect, by the unanimous U.S. Supreme Court in 1833. To the extent that Nunn is in conflict with Barron, it is null and void. I was well aware of this statement in Nunn and was just waiting for you to demostrate your ignorance. Thanks for playing, loser. Barron v. Baltimore, 32 U.S. 243, 247-48 (1833) Opinion of the Court, Chief Justice Marshall (7-0) https://supreme.justia.com/cases/federal/us/32/243/case.html Barron v. Mayor & City Council of Baltimore, 32 U.S. (7 Pet.) 243 (1833) ON WRIT OF ERROR TO THE COURT OF APPEALS FOR THE WESTERN SHORE OF THE STATE OF MARYLAND Syllabus The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. [...] Mr. Chief Justice MARSHALL delivered the opinion of the court. [...] The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. [...] The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. In support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation. The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States. There is no doubt about what Barron said. Montañez v. State Ins. Fund, 91 F.Supp.3d 291 (D.P.R. 2015)
When the Supreme Court interpreted the first ten amendments of the constitution (the Bill of Rights) to be enforceable only against the federal government in Barron v. City of Baltimore, -- it eventually became necessary to enact the Fourteenth Amendment. The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Needless to say, the property involved includes arms, and the liberty involves the right to bear arms, without infringements by ANY level of government.
A sure sign a poster is a mentally ill dimwitted retard .... This is a scientific fact. It has been proven 100% accurate. People who do this are officially categorized as mentally ill dimwitted retards. What is it? It's posting a link to some web site, without anything supporting or illuminating the poster's position. A variation on this deranged type of posting are posts that contain nothing but personal attacks and name calling, lacking any substance and failing to actually promote critical thinking or to promote or defend a sensible and sane position. Mentally ill retards use this technique because they became exhausted trying to write something sane and sensible, or they were so proud of having finally written something that wasn't totally retarded they find themselves compelled to keep reposting it. Why, you might ask, is this a sure sign of mentally ill retards? Because these people don't have the mental horsepower to articulate a cogent statement. They have to rely on web sites to do their speaking. Because they're mentally ill retards. 97% of mental health experts agree. Strange but true......... Gatlin Gatlin just posted this rant on another thread, and it described Nolu Chan's posts on this thread so well (slightly exaggerated of course), -- I'm reposting it WITHOUT his permission... Sorry bout that...
The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Needless to say, the property involved includes arms, and the liberty involves the right to bear arms, without infringements by ANY level of government. What a load of horseshit. The Supreme Court never interpreted the first eight amendments to apply to the States, and Barron was in 1833. The 14th Amendment was a power grab in the post-Civil War era. That power grab has continued until the the Federal government can tell the girls to shower with the boys, and the boys to shower with the girls, and you approve of the power grab. As Justice Harlan said in his opinion in Duncan v. Lousiana, 3. The locus classicus for this viewpoint is The Federalist No. 51 (Madison). 4. The Bill of Rights was opposed by Hamilton and other proponents of a strong central government. See The Federalist No. 84; see generally C. Rossiter, 1787: The Grand Convention 284, 302-303. 5. In Barron v. Baltimore, supra, at 250, Chief Justice Marshall said, "These amendments demanded security against the apprehended encroachments of the general government — not against those of the local governments." The Civil War Amendments dramatically altered the relation of the Federal Government to the States. The first section of the Fourteenth Amendment imposes highly significant restrictions on state action. But the restrictions are couched in very broad and general terms: citizenship; privileges and immunities; due process of law; equal protection of the laws. Consequently, for 100 years this Court has been engaged in the difficult process Professor Jaffe has well called "the search for intermediate premises."[6] The question has been, Where does the Court properly look to find the specific rules that define and give content to such terms as "life, liberty, or property" and "due process of law"? A few members of the Court have taken the position that the intention of those who drafted the first section of the Fourteenth Amendment was simply, and exclusively, to make the provisions of the first eight Amendments applicable to state action.[7] This view has never been accepted by this Court.
The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Needless to say, the property involved includes arms, and the liberty involves the right to bear arms, without infringements by ANY level of government. That's it.. That's all you've been saying for over 100 posts, along with posting volumes of court opinions, opinions that do NOT affect our right to bear arms. Please continue making a fool of yourself..
This is one sorry attempt to rewrite the history of your demonstrated assholery. You have been arguing that the original Bill of Rights applied to the States before the 14th Amendment. See your #49, #107 et al. At #107, you quoted a Georgia state court decision, Nunn v. State, 1 Kelly 243 (Ga. 1846), that, "The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning." You concluded, "The above, quoted from Nunn, destroys your position that prior to the 14th, that there was NO opinion that the 2nd Amendment applied to the States." Of course, I have never claimed that there was no opinion that claimed the 2nd Amendment applied to the States, and you have been unable to cite any such claim by me. I have been citing and quoting the unanimous U.S. Supreme Court in Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833) since #23: Your assinine and assi-ten response at #25 (and repeated thereafter) was, "This SCOTUS opinion is not definitive, and does not change the clear words of our Constitution, which has always applied to the States, except where specifically noted." At #49 (and after) you stated, "The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance." In #112, to which you are now nominally responding, I provided an opinion of Justice Harlan. Opinion of Justice Harlan, 391 U.S. 171 (1968) That was 1968, 135 years after Barron v. Baltmore was handed down in 1833. In 2016, Barron now 183 continuous years of federal affirmation. Of course, Vidal v. Garcia-Padilla, proved that Barron v. Baltimore shows that Barron was still good law, and citable as precedent in 2016. There are thousands of federal court opinions to show Barron has been so cited since 1833. Vidal v. Garcia-Padilla, CIVIL NO. 14-1253 (PG) (D.P.R. Mar 08, 2016) At the time of its adoption in 1871, [sic - 1791] the Bill of Rights — and, particularly, the individual liberties secured within it — did not apply against the States. See Barron ex rel. Tiernan v. Baltimore, 32 U.S. 243, 250 (1833)(noting that the amendments found in the Bill of Rights "contain no expression indicating an intention to apply them to the State governments"); Lessee of Livingston v. Moore, 32 U.S. 469, 551-552 (1833)(same). Nevertheless, in the aftermath of the Civil War, the Fourteenth Amendment to the Constitution was adopted to protect certain individual rights from interference by the States. And thereafter, the Supreme Court began using that Amendment's Due Process Clause to "incorporate" a number of the individual liberties found in the first ten Amendments against the States You have dissed Justice Antonin Scalia. Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015), Opinion of the Court by Scalia, J. Idiot tpaine #90 thinking he is responding to nolu chan: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” It is apparent that this Clause creates a rule of decision: [tpaine #90] A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? [nc] Antonin Scalia "made up that Opinion," and you should care because he did it as an Associate Justice writing a majority opinion of the U.S. Supreme court. [tpaine #90] You are paraphrasing the words as written to make another OPINION, --- You really can't help yourself, can you.... [nc] Scalia was writing a majority Opinion of the U.S. Supreme Court. [tpaine #90] You're simply making up more opinions on what the supremacy clause means. -- Its apparent you can't stop this inane form of argument. [nc] Justice Scalia was writing a majority Opinion of the U.S. Supreme Court pertaining to what the supremacy clause means. It speaks loudly of your intellect that you find his form of argument to be inane. You have dissed Chief Justice Marshall with a non-responsive ad hominem attack: Lest we forget, John Marshall was one of the Founding Fathers. He would know what he's talking about. misterwhite John Marshall was a founding father who insisted that States could ignore our individual rights as outlined in the Constitution. And lest we forget, misterwhite insists that States can ignore our right to bear arms. Can you name a single Supreme Court justice in the past 183 years, preferably who opined on the issue, whose court opinions are worthy of your respect? Remember what you claimed and forget your attempt to rewrite history, you sorry sack of shit. tpaine #49:
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Top • Page Up • Full Thread • Page Down • Bottom/Latest No, --- Madison, the Father of the Constitution, and co-author of the Federalist Papers, told them the truth that the Bill of Rights did not apply to the States. ---- The Supreme Court contained one (1) nominee of Adams, one (1) of Jefferson, two (2) of Madison, two (2) of Monroe, and one (1) of Jackson, when it decided the case of Barron v. Baltimore in 1833. ----- The opinion of the Court was UNANIMOUS. Every Justice in 1833, including those appointed by Madison, agreed with Madison and found that the Bill of Rights did not apply to the States. --- Do tell, were all the Supreme Court Justices still carrying on with your fairy tale of an alleged Madison white lie, or plain outrageous lie to deceive the people into ratifying eight constitutional amendments? ---- Why, 1833, were all the Supreme Court justices perpetuating what you call a white lie by Madison as a Framer of the Bill of Rights? Why did the seven justices unanimously lie in 1833?
#76. To: nolu chan (#73)
No. I have always provided, and wish to assure you, that I will always provide you with the all civility and courtesy you deserve.
#77. To: tpaine (#75)
Because they [the UNANIMOUS U.S. SUPREME COURT in Barron v. Baltimore] were attempting to save the Union by telling the slave States what they insisted hearing. -- It worked, --- for a while.
Before that [ratification of the 14th Amendment] a State, as in the case of the State of Illinois, could make it a crime punishable by fine and imprisonment for any citizen within her limits, in obedience to the injunction of our divine Master, to help a slave who was ready to perish; to give him shelter, or break with him his crust of bread.
I answer the gentleman, how I came to change the form of February to the words now in the first section of the fourteenth article of amendment, as they stand, and I trust will forever stand, in the Constitution of my country. I had read—and that is what induced me to attempt to impose by constitutional amendments new limitations upon the power of the States—the great decision of Marshall in Barron vs. the Mayor and City Council of Baltimore, wherein the Chief Justice said, in obedience to his official oath and the Constitution as it then was:
#78. To: tpaine (#76)
#79. To: nolu chan (#77)
In 1833?
I suppose that the States, today, are allowed to ignore the 5th Amendment requirement to obtain a presentment or indictment of a Grand Jury in order to save the union too.
Amazingly, after the Civil War, the authors of the Fourteenth Amendment stated that the 14th was needed precisely because the Bill of Rights did not apply to the States.
Indeed, was John Bingham "attempting to save the Union by telling the slave States what they insisted hearing?" In 1871.
#80. To: Roscoe (#17)
And the non sequitur award of the day goes to hondo68.
usual
one
bat
chirp
the
rest
of
the
bat
clan
crazies
good
zitka
virus
will
clean
the
cave
America
skies
clear
great
again
boris
#81. To: tpaine (#79)
[nc #38] As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States, please explain why the States are free to try and execute people without complying with the 5th Amendment requirement for an indictment issued by a grand jury.
[nc #77] I suppose that the States, today, are allowed to ignore the 5th Amendment requirement to obtain a presentment or indictment of a Grand Jury in order to save the union too.
The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes.
Congress shall make no law
respecting an establishment of religion,
congress n. 1 The national legislative body of a country. (Congress) that national legislative body of the U.S., meeting at the Capitol om Washington, D.C.
CONGRESS a formal body of delegates; in American law, the national legislative body consisting of the Senate and the House of Representatives.
Congressman. Strictly, a member of the Congress of the United States. But the common tendency is to apply this term only to a member of the House of Representatives, as distinguished from a senator.
Amendment VII
SMALL CLAIMS COURT a court of limited jurisdiction, usually able to adjudicate claims of $500 or less, depending on statute. Proceedings are less formal tha in other types of corts and parties usually represent themselves.
Small claims court. A special court (sometimes also called "Conciliation Court") which provides expeditious, informal, and inexpensive adudication of small claims. Jurisdiction of such courts is usually limited to colection of small debts and accounts. Proceedings are very informal with parties normally representing themselves. These courts of limited jurisdiction are often divisions or departments of courts of general jurisdiction.
Title 28 - Judiciary and Judicial Procedure
Part V - PROCEDURE (§§ 1651 - 2113)
Chapter 111 - GENERAL PROVISIONS (§§ 1651 - 1659)
Section 1652 - State laws as rules of decision Objection is also taken to the validity of the state law upon the ground that it is in conflict with the provision of the federal Constitution which secures to every party, where the value in controversy exceeds twenty dollars, the right of trial by jury.
MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.
The Seventh Amendment, which governs proceedings in federal court, but not in state court,[14] bears not only on the allocation of trial functions between judge and jury, the issue in Byrd; it also controls the allocation of authority to review verdicts, the issue of concern here. The Amendment reads:
U.S. Supreme Court
Natural Law
#82. To: nolu chan (#81)
you
still
believe
obomba
is
a
natural
born
citizen
America
constitutional
great
again
boris
#83. To: tpaine (#79)
The UNANIMOUS U.S. SUPREME COURT in Barron v. Baltimore were attempting to save the Union by telling the slave States what they insisted hearing. -- It worked, --- for a while.
In 1833?
I suppose that the States, today, are allowed to ignore the 5th Amendment requirement to obtain a presentment or indictment of a Grand Jury in order to save the union too.
This Indenture made this twenty sixth day of Jane uary one thousand eight hundred and eighteen, between Judith a Negroe Woman about seventeen years of age, last of the Territory of Missouri and County of ___ of the one part, and William Wilson of Pope Coun'ty of Illinois Territory of the other part Witnesseth. That the said Judith for and in consideration of four hundred Dollars Current money of the United States, at or before the signing and Delivery of these presents, the Receipt whereof she doth hereby acknowledge, and in conformity to a law of this Territory, respecting the Introduction of Negroes and Mullatoes into the same, hath put, placed and bound herself to the said William Wilson to serve him during the full Term of ninety nine years from the date hereof; or in other words, from the date hereof until the twenty sixth day of January one thousand nine hundred and seventeen; during all which term the said Judith the said William Wilson shall well and truly serve, and all his lawful commands every where obey, and that she shall not embezel or waste her said Masters Goods, nor lend them to any person without her said Masters leave or consent, nor shall she at any time, absent herself from her said Master,s service without his leave or consent, but as a good and faithful Servant, shall and will at all times demean herself towards her said Master. And the said William Wilson covenants and agrees to and with the said Judith that he will furnish her with good and sufficient Meat Dring lodging and Apparel, together with all other needful Comforts and conveniencies fit for such a Servant during the Term aforesaid. And for the true performance of each of the above Agreements, each of the beforementioned para ties, bind themselves to each other firmly by these presents. In testimony where of the said parties have set their hands and affixed their seals the day and year first above written.
#84. To: nolu chan (#83)
Again. Originally, NONE of the Bill of Rights applied to the States.
#85. To: tpaine (#84)
Please keep wasting your time posting OPINIONS that buttress your opinion above..
Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.
#86. To: nolu chan (#85)
As you wish. And you keep avoiding posting anything that buttresses your bullshit.
#87. To: tpaine (#86)
Please, keep wasting your time posting OPINIONS that buttress your opinion above..
Let us now refer to the provisions of the proposed amendment.
#88. To: nolu chan (#87)
As you wish. And you keep avoiding posting anything that buttresses your bullshit.
#89. To: tpaine (#88)
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
12 The Supremacy Clause, Art. VI, cl. 2, reads:
#90. To: nolu chan (#89)
It is apparent that this Clause creates a rule of decision:
Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
As Supremacy Clause pertains to a conflict of laws. As the Bill of Rights originally did not apply to the States, there was no conflict between the inapplicable Bill of Rights and any State laws.
The members of the union are the States (Art. 8). The States ratified the amendments called the Bill of Rights to place clear restraints on the powers of the Federal government.
Amendments to the Federal charter, limiting the powers of the Federal government, do not apply to the States.
The Bill of Rights limits and restrains Federal power, it does not contain any grant or authorization of Federal power.
You can keep quoting the Supremacy Clause, but in the context of the original Bill of Rights and State law, it did not do amything, as it created no conflict of laws. When the First Amendment says, "Congress shall pass no law," it speaks to the Federal Congress only. That is why 225 years of American court opinions unanimously say you are full of shit and do not know what you are talking about.
#91. To: tpaine (#90)
[nc #89] 12 The Supremacy Clause, Art. VI, cl. 2, reads:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
It is apparent that this Clause creates a rule of decision:
[nc #89] Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
[nc #89] ---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
#92. To: tpaine (#90)
Hamilton wrote that the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government.” The Federalist No. 33, p. 207 (J. Cooke ed.1961). And Story described the Clause as “a positive affirmance of that, which is necessarily implied.” 3 Commentaries on the Constitution of the United States § 1831, p. 693 (1833). These descriptions would have been grossly inapt if the Clause were understood to give affected parties a constitutional (and hence congressionally unalterable) right to enforce federal laws against the States.
#93. To: tpaine (#90)
Araya's Fifth Amendment claim against Chase and Shapiro & Burson is insufficient to sustain jurisdiction because it has been foreclosed by the Supreme Court. See Steel Co., 523 U.S. at 89, 118 S.Ct. 1003. It is beyond dispute that the Fifth Amendment “appl[ies] to and restrict[s] only the Federal Government and not private persons.” Pub. Utils. Comm'n of D.C. v. Pollak, 343 U.S. 451, 461, 72 S.Ct. 813, 96 L.Ed. 1068 (1952); see also San Francisco Arts & Athletics, Inc. v. U.S. Olympic Committee, 483 U.S. 522, 542, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987) (“The fundamental inquiry is whether the USOC is a governmental actor to whom the prohibitions of [the Fifth Amendment] apply.”); Corrigan v. Buckley, 271 U.S. 323, 330, 46 S.Ct. 521, 70 L.Ed. 969 (1926) (“The Fifth Amendment is a limitation only upon the powers of the General Government and is not directed against the action of individuals.”) (citations omitted) (internal quotation marks omitted); Barron v. Baltimore, 32 U.S. 243, 250–51, 7 Pet. 243, 8 L.Ed. 672 (1833) (“[T]he fifth amendment to the constitution ... is intended solely as a limitation on the exercise of power by the government of the United States.”). There is no plausible argument that either Chase or Shapiro & Burson is a governmental actor, and indeed Araya's complaint does not even allege that either defendant is a governmental actor. The Fifth Amendment claim is thus an insufficient basis for federal subject matter jurisdiction. Understandably, the District Court did not rely upon the takings claim as a basis for jurisdiction when it denied Araya's request to remand, and it later granted the motion to dismiss that claim.
#94. To: nolu chan (#92)
#95. To: nolu chan (#92)
Justice Scalia continued in Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378 (2015).
#96. To: GrandIsland (#74)
But don't lie.
“Truth is treason in the empire of lies.” - Ron Paul
"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards."
#97. To: nolu chan (#93)
It is beyond dispute that the Fifth Amendment “appl[ies] to and restrict[s] only the Federal Government and not private persons.”
#98. To: tpaine (#94)
[SCALIA] 12 The Supremacy Clause, Art. VI, cl. 2, reads:
[SCALIA] Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
[SCALIA] ---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
As Supremacy Clause pertains to a conflict of laws. As the Bill of Rights originally did not apply to the States, there was no conflict between the inapplicable Bill of Rights and any State laws.
Again. Originally, NONE of the Bill of Rights applied to the States.
I'll repeat my last post, which buttresses my position, which you cannot refute, and is part of our Constitution, NOT bullshit: ---
I'll repeat my last post, which buttresses my position, which you cannot refute, and is part of our Constitution, NOT bullshit: ---
The district court granted summary judgment for the Providers. The court rejected the argument that the Providers lacked a valid cause of action, holding that Ninth Circuit precedent “clear[ly]” established that “providers have standing under the Supremacy Clause” to challenge a state law reducing reimbursement rates in violation of § 30(A). On the merits, Chief Judge Winmill concluded that the state’s continued use of the 2006 reimbursement rates violated § 30(A) because the rates did not incorporate “actual provider costs.”
#99. To: tpaine (#95)
Hamilton wrote that the Supremacy Clause “only declares a truth, which flows immediately and necessarily from the institution of a Federal Government.” The Federalist No. 33, p. 207 (J. Cooke ed.1961). And Story described the Clause as “a positive affirmance of that, which is necessarily implied.” 3 Commentaries on the Constitution of the United States § 1831, p. 693 (1833). These descriptions would have been grossly inapt if the Clause were understood to give affected parties a constitutional (and hence congressionally unalterable) right to enforce federal laws against the States.
#100. To: tpaine (#97)
It is beyond dispute that the Fifth Amendment “appl[ies] to and restrict[s] only the Federal Government and not private persons.”
When adopted, the Bill of Rights protected individuals only against the federal government. See, e.g., Barron v. City of Baltimore 32 U.S. 243, 247, 7 Pet. 243, 8 L.Ed. 672 (1833). Under the "incorporation" doctrine, however, "many of the rights guaranteed by the first eight Amendments to the Constitution have been held [by the Supreme Court] to be protected against state action by the Due Process Clause of the Fourteenth Amendment." Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)
#101. To: Deckard (#96)
Bullshit - you spent your entire career as a cop, and as we all know, cops lie.
#102. To: nolu chan (#100)
Actually, I posted a majority Opinion of the United States Supreme Court, and the holding is the law of the land. Deal with it.
It is beyond dispute that the Fifth Amendment “appl[ies] to and restrict[s] only the Federal Government and not private persons.”
Actually, I quoted the opinion of the Court, so fuck you.
I will keep citing and quoting as there is no end of court opinions which say you are full of shit. With 225 years of opinions to work with, it is obvious that you cannot quote a single one that says the Bill of Rights applies to and restricts the States.
#103. To: tpaine (#102)
I don't quote court opinions, I cited our Constitution, [Art VI] which it's obvious you hate.
[SCALIA] The Supremacy Clause, Art. VI, cl. 2, reads:
[SCALIA] Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
[SCALIA] ---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
Over time, the Supreme Court has construed the substantive component of the Due Process Clause to protect two types of "liberty." It incorporates most of the guarantees of the Bill of Rights — which originally restricted only the Federal Government, see Barron v. Baltimore, 32 U.S. 243, 247, 7 Pet. 243, 8 L.Ed. 672 (1833) — and protects these rights from state infringement. And it protects other "fundamental rights" not expressly mentioned in the Bill of Rights but "implicit in the concept of ordered liberty,"
#104. To: nolu chan (#103)
It is beyond dispute that the Fifth Amendment “appl[ies] to and restrict[s] only the Federal Government and not private persons.”
Actually, I quoted the opinion of the Court, so fuck you.
I will keep citing and quoting as there is no end of court opinions which say you are full of shit. With 225 years of opinions to work with, it is obvious that you cannot quote a single one that says the Bill of Rights applies to and restricts the States.
What is obvious is that you do not understand Article VI any better than you understand the rest of the Constitution.
#105. To: tpaine (#104)
I don't quote court opinions, as they prove nothing. ---- I cited our Constitution, [Art VI] which it's obvious you hate.
The vicinage clause of the Sixth Amendment guarantees an accused "the right to a . . . jury of the . . . district wherein the crime shall have been committed, which district shall have been previously ascertained by law." U.S. Const. amend. VI. At the time of its adoption, the Sixth Amendment, like the rest of the Bill of Rights, applied only to the federal government and therefore only to federal prosecutions. Cf. Barron v. Baltimore, 32 U.S. 243, 247, 250-51, 7 Pet. 243, 8 L.Ed. 672 (1833). However, the Fourteenth Amendment Due Process Clause extended certain rights guaranteed by the Bill of Rights to protection against state action. See Duncan v. Louisiana, 391 U.S. 145, 147-48, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Not all of the rights guaranteed by the Sixth Amendment were incorporated; rather, only those rights that are "fundamental to the American scheme of justice" or "essential to a fair trial" apply to the states. Id. at 148-49, 88 S.Ct. 1444.
[SCALIA] The Supremacy Clause, Art. VI, cl. 2, reads:
[SCALIA] Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
[SCALIA] ---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
#106. To: nolu chan (#105)
What is obvious is that you do not understand Article VI any better than you understand the rest of the Constitution.
"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
#107. To: nolu chan (#105)
The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should he added. And in the first session of the first Congress, ten of these amendments having been agreed to by that body, and afterwards sanctioned by three- fourths of the States, became a part of the Constitution. But admitting all this, does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature. Questions under some of these amendments, it is true, can only arise under the laws and Constitution of the United States. But there are other provisions in them, which were never intended to be thus restricted, but were designed for the benefit of every citizen of the Union in all courts and in all places; and the people of the several States, in ratifying them in their respective State conventions, have virtually adopted them
#108. To: tpaine (#106)
No, it's obvious that you will continue to insist in making a fool of yourself, repeating opinions that prove nothing.
[SCALIA] The Supremacy Clause, Art. VI, cl. 2, reads:
[tpaine #90] A "rule of decision"? --- Who in hell made up that OPINION? And why should I care? [SCALIA] Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
[SCALIA] ---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
The Fifth Amendment's Due Process right stems from the following provision: “[n]o person shall be ... deprived of life, liberty, or property, without due process of law ...” U.S. Const. amend. V. However, the Supreme Court interpreted the first ten amendments of the constitution (the Bill of Rights) to be enforceable only against the federal government. Barron v. City of Baltimore, 32 U.S. 243, 7 Pet. 243, 8 L.Ed. 672 (1833) (“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.”). Subsequently, the Fourteenth Amendment—which contains its own Due Process clause—was enacted. The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” (emphasis provided). U.S. Const. amend. XIV, § 1.
#109. To: tpaine (#107)
The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should he added. And in the first session of the first Congress, ten of these amendments having been agreed to by that body, and afterwards sanctioned by three-fourths of the States, became a part of the Constitution. But admitting all this, does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature. Questions under some of these amendments, it is true, can only arise under the laws and Constitution of the United States. But there are other provisions in them, which were never intended to be thus restricted, but were designed for the benefit of every citizen of the Union in all courts and in all places; and the people of the several States, in ratifying them in their respective State conventions, have virtually adopted them
U.S. Supreme Court
The Fifth Amendment's Due Process right stems from the following provision: “[n]o person shall be ... deprived of life, liberty, or property, without due process of law ...” U.S. Const. amend. V. However, the Supreme Court interpreted the first ten amendments of the constitution (the Bill of Rights) to be enforceable only against the federal government. Barron v. City of Baltimore, 32 U.S. 243, 7 Pet. 243, 8 L.Ed. 672 (1833) (“The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.”). Subsequently, the Fourteenth Amendment—which contains its own Due Process clause—was enacted. The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” (emphasis provided). U.S. Const. amend. XIV, § 1.
#110. To: nolu chan (#108)
#111. To: nolu chan, gatlin, y'all (#109)
Ah shit, not another "copie and pastie" from you ...
#112. To: tpaine (#110)
When the Supreme Court interpreted the first ten amendments of the constitution (the Bill of Rights) to be enforceable only against the federal government in Barron v. City of Baltimore, -- it eventually became necessary to enact the Fourteenth Amendment.
I believe I am correct in saying that every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.[2] They were wont to believe rather that the security of liberty in America rested primarily upon the dispersion of governmental power across a federal system.[3] The Bill of Rights was considered unnecessary by some[4] but insisted upon by others in order to curb the possibility of abuse of power by the strong central government they were creating.[5]
2. Barron v. Baltimore, 7 Pet. 243 (1833), held that the first eight Amendments restricted only federal action.
6. Jaffe, Was Brandeis an Activist? The Search for Intermediate Premises, 80 Harv. L. Rev. 986 (1967).
7. See Adamson v. California, 332 U.S. 46, 71 (dissenting opinion of BLACK, J.); O'Neil v. Vermont, 144 U.S. 323, 366, 370 (dissenting opinion of Harlan, J.) (1892); H. Black, "Due Process of Law," in A Constitutional Faith 23 (1968).
#113. To: nolu chan (#112)
What a load of horseshit.
#114. To: tpaine (#113)
The Fourteenth Amendment provides that “[n]o state shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.
I believe I am correct in saying that every member of the Court for at least the last 135 years has agreed that our Founders did not consider the requirements of the Bill of Rights so fundamental that they should operate directly against the States.
B. The Doctrine of Selective Incorporation
[SCALIA] The Supremacy Clause, Art. VI, cl. 2, reads:
[SCALIA] Courts “shall” regard the “Constitution,” and all laws “made in Pursuance thereof,” as “the supreme Law of the Land.” They must not give effect to state laws that conflict with federal laws.
[SCALIA] ---- It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
#14. To: misterwhite, Y'ALL (#13)
Mr. Chief Justice MARSHALL delivered the opinion of the court."
The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance.
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