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.

Your drivel is noted. The opinion of the Supreme Court rules supreme over your mindless drivel.

https://supreme.justia.com/cases/federal/us/32/243/case.html

Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)

Syllabus at 243:

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.

When interpreting the Constitution, SCOTUS opinions are definitive unless they overrule with a subsequent opinion or the people overrule with a subsequent constitutional amendment.

You cannot cite anything to support the above statement in ANY part of the Constitution itself. -- It is simply another opinion, and is totally inaccurate.

Your drivel is noted. The opinion of the Supreme Court rules supreme over your mindless drivel. -------- Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833)---- Syllabus at 243: ---- 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 syllabus you quoted above is a specific example of a State power, mentioned in our Constitution. It is an exception, not the rule. SCOTUS opinions are not definitive, and do not change the clear words of our Constitution, which has always applied to the States, except where specifically noted, AS ABOVE.

In their time the entire BoR only applied to the Federal Government.

Really?

The clause "the right of the people to keep and bear arms" originally referred only to Federal officials, employees, appointees, etc?

In their time the entire BoR only applied to the Federal Government.

Really?

The clause "the right of the people to keep and bear arms" originally referred only to Federal officials, employees, appointees, etc?

Obviously, this "question" is based on false premises.

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.

The right of the people to keep and bear arms referred to the preexisting right that the colonials brought forth with them into the union. Every original state and the Federal district explicitly adopted the common law of England, excluding those parts that conflicted with the Constitution.

The Second Amendment refers to a preesisting right of the people. It did not create any right for anybody. As with the entire Bill of Rights, it did not apply to the States. It was a restriction of authority of the Federal government, only.

The members of the constitutional Union were the States that ratified the Constitution (Art. 7). Amendments are ratified by three fourths of the States, either by their legislature or by convention. The States did not make the Bill of Rights a restriction of authority of the States in 1791. In 1791, the States were concerned with Federal expansionism. The Fourteenth Amendment of 1868 produced incorporation of the Bill of Rights against the States.

Barron v. Baltimore, 32 U.S. 243, 247-48 (1833)

Opinion of the Court, Chief Justice Marshall (7-0)

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. 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.

American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321:

Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights aplied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.

Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:

Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states. Reading Barron in its entirety is essential to grasping the objectives of the Repubicans in the Thirty-niinth Congress who drated the Fourteenth Amendment, portions of which were meant to reverse Barron. Barron is to the Fourteenth Amendment what Chisholm v. Georgia is to the Eleventh. The reasoning of Barron is also crucial to appreciating both the need for, and the controversy surrounding, the so-called incorporation doctrine, developed in the twentieth century, by which selected portions of the Bill of Rights were "incorporated" into the Fourteenth Amendment and applied to the states.

nolu chan --- In their time the entire BoR only applied to the Federal Government.

Cranky --- Really?

Nolu Chan responds, repeating himself, with yet another opinion: ---

The Second Amendment refers to a preesisting right of the people. It did not create any right for anybody. As with the entire Bill of Rights, it did not apply to the States. It was a restriction of authority of the Federal government, only.

This type of opinion is currently being used in California to infringe on our right to bear arms.

Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality.

Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?

Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?

I don't know.

But my take is he believes the bill of rights (at least second ammendment but maybe all of them) was superfluous as it merely codified exisiting English common law and established no new rights.

I was was taught differently in the schools I attended.

my take is he believes the bill of rights (at least second ammendment but maybe all of them) was superfluous as it merely codified exisiting English common law and established no new rights.

I was was taught differently in the schools I attended.

Me too..

What really puzzles me is why any rational person would WANT to give States the power to ignore our individual rights.

Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality.

Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?

Hey, it's like a scene from Remember the Titans. tpaine, you must be Dean Martin and cranky, you must be Jerry. I'm your daddy. Now, both of y'all, just get on the bus.

See tpaine shill for his favorite Libertarian constitutional scholar:

http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=45874

U.S. Constitution
See other U.S. Constitution Articles

Title: Our Republican Constitution
Source: Amazon
URL Source: [None]
Published: Apr 21, 2016
Author: Randy Barnett
Post Date: 2016-04-21 18:54:18 by tpaine

http://libertysflame.com/cgi-bin/readart.cgi?ArtNum=46251

U.S. Constitution
See other U.S. Constitution Articles

Title: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People
Source: [None]
URL Source: [None]
Published: May 15, 2016
Author: Randy E. Barnett
Post Date: 2016-05-15 00:25:26 by tpaine

Not only did Randy Barnett publish the 296-page book for the general public above, but he previously published a real, full-blasted 1,348-page legal casebook which i just happen to own, and from which I quoted at my #29. Yes, I used tpaine's own preferred constitutional expert (among others) to certify that tpaine is full of shit and has no clue what he is talking about. It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.

Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:

Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states. Reading Barron in its entirety is essential to grasping the objectives of the Repubicans in the Thirty-ninth Congress who drafted the Fourteenth Amendment, portions of which were meant to reverse Barron. Barron is to the Fourteenth Amendment what Chisholm v. Georgia is to the Eleventh. The reasoning of Barron is also crucial to appreciating both the need for, and the controversy surrounding, the so-called incorporation doctrine, developed in the twentieth century, by which selected portions of the Bill of Rights were "incorporated" into the Fourteenth Amendment and applied to the states.

Why Nolu continues to support these State infringements, based on anti-gun opinions, is beyond rationality. Does he really believe that our republican form of government is best served by further prohibitions on individual freedoms?

In reply, (actually, - putting foot in mouth) nolu posts: ---

Title: Our Republican Constitution: Securing the Liberty and Sovereignty of We the People Source: [None] URL Source: [None] Published: May 15, 2016 Author: Randy E. Barnett

Not only did Randy Barnett publish the 296-page book for the general public above, but he previously published a real, full- blasted 1,348-page legal casebook which i just happen to own, and from which I quoted at my #29. Yes, I used tpaine's own preferred constitutional expert (among others) to certify that tpaine is full of shit and has no clue what he is talking about.

Anyone can read Barnetts book, which establishes the FACT that there has always been argument about whether the States were bound by amendments to the constitution. -- Natually, the slave States disagreed. -- Nolu still does...

[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.

So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out.

The following, by Barnett, supports my argument: --

Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:

"Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states."

Operative words: -- "what came to be". --- GRANTED, - the SCOTUS and the slave States (and later the southern democrats) have INSISTED that this is the 'settled view'.

It is not... And has been in contention ever since.

Anyone can read Barnetts book, [except tpaine] which establishes the FACT that there has always been argument about whether the States were bound by amendments to the constitution. -- Natually, the slave States disagreed. -- Nolu still does...

tpaine cites no page for his argument that Barnett asserted there has been argument. It is a fact that there has been argument whether abortion should be legal or illegal. Citation to purported argument changes nothing.

What Barnett actually writes at page 108 of Our Republican Constitution (2016), speaking of the post-war amendments:

Why then add the Privileges and Immunities Clause to the Constitution if these rights were already included in Article IV and in the first eight amendments? Because, Howard expalined, the courts had ruled that "these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it . . . do not operate in the slightest degree as a restraint or prohibition upon State legislation."

There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required.

[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.

So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out.

Dean Arseface and partner Jerry claim the 2nd Amendment created the right to keep and bear arms. These shitheads overlook that the colonists declared independence in 1776, had a government and union for years under the Articles of Confederation, and formed a new union and government in 1789 under the Constitution. They then claim that the right to keep and bear arms was created by amendment in 1791. If one believes shithead law and history, nowhere in the 15 years between 1776 and 1791 did the people assert the right to keep and bear arms.

In reality, the people asserted the right to keep and bear arms as colonists, and as revolutionaries, and they brought that existing right with them into an American union.

Just how stupid can you get?

Barron v. Baltimore, 32 U.S. 243, 247-48 (1833)

Opinion of the Court, Chief Justice Marshall (7-0)

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. 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.

American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321:

Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.

Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26:

The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.

BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833)

[case quote omitted]

From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly."

Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61:

C. THE INCORPORATION DOCTRINE

The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states.

The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government?

The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans.

American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted)

§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer

In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. ² Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth.

² Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.)

Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164:

B. BILL OF RIGHTS

One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause.

https://www.law.cornell.edu/wex/incorporation_doctrine

Incorporation Doctrine

The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.

For Arsefaces who believe the whole Bill of Rights applies to the States today, they must explain the Fifth Amendment requirement for a Grand Jury.

Amendment 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 cases 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 in 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.

As everyone but Arseface knows, the vast majority of State cases are instituted without a Grand Jury, relying on an information submitted to the court.

Black's Law Dictionary, 6th Edition

Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury. Salvail v. Sharkey, 108 RI. 63, 271 A.2d 814, 817. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. People v. Cooper, 35 Misc.2d 90, 229 N.Y.S.2d 287, 288.

While Fifth Amendment of U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring a person to trial. As regards federal crimes, see Fed.RCrim.P. 7. See also Arraignment; Indictment; Preliminary hearing. As to joinder of informations, see Joinder.

The Grand Jury provision of the Fifth Amendment has not been incorporated against the States. That has been the state of things from 1791 to 2016.

Arseface.

Constitutional Law, Cases in Context, Randy E. Barnett, Aspen Publishers, 2008, page 148:

"Today, most people take for granted that state governments must respect the rights contained in the Bill of Rights, but this is a relatively modern development that took place only after the adoption of the Fourteenth Amendment. In Barron v. Baltimore, Chief Justice Marshall describes what came to be the settled view of how and why the Bill of Rights did not apply to the states."

Operative words: -- "what came to be". --- GRANTED, - the SCOTUS and the slave States (and later the southern democrats, and now the progressive prohibitionists) have INSISTED that this is the 'settled view'.

It is not... And has been in contention ever since.

There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required.

Round you go, in your circular denials, dispute your admission that there were arguments, --- and of course they 'failed', in YOUR eyes,and those of the SCOTUS.

And as I've also said before, the 14th was indeed needed to clarify the issue, after the civil war.

As usual, the rest of your post is repetitive opinion, that proves nothing other than you persist in trying to bafflegab the real issue. -- States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

What Barnett actually writes at page 108 of Our Republican Constitution (2016), speaking of the post-war amendments:

Why then add the Privileges and Immunities Clause to the Constitution if these rights were already included in Article IV and in the first eight amendments? Because, Howard expalined, the courts had ruled that "these immunities, privileges, rights, thus guaranteed by the Constitution or recognized by it . . . do not operate in the slightest degree as a restraint or prohibition upon State legislation."

[...]

Whether by the Fourteenth Amendment alone, or in combination with the Thirteenth, states may not abridge the personal guarntees in what we now call the Bill of Rights....

There were arguments. The arguments had failed. The U.S. Supreme Court had been crystal clear that the Bill of Rights did not apply to the States. That was why the 14th Amendment was required.

[this is not in Barnetts book] It is an historical fact that when the Bill of Rights was passed in 1791 as part of the organic law defining the powers of the Federal government, the amendments did not restrict the powers then held by the state governments.

So nolu claims, unsupported by the clear words of our Constitution, which specifies the opposite in several places, which I have previously pointed out.

Dean Arseface and partner Jerry claim the 2nd Amendment created the right to keep and bear arms. These shitheads overlook that the colonists declared independence in 1776, had a government and union for years under the Articles of Confederation, and formed a new union and government in 1789 under the Constitution. They then claim that the right to keep and bear arms was created by amendment in 1791. If one believes shithead law and history, nowhere in the 15 years between 1776 and 1791 did the people assert the right to keep and bear arms.

In reality, the people asserted the right to keep and bear arms as colonists, and as revolutionaries, and they brought that existing right with them into an American union.

Just how stupid can you get?

Barron v. Baltimore, 32 U.S. 243, 247-48 (1833)

Opinion of the Court, Chief Justice Marshall (7-0)

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. 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.

American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321:

Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.

Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26:

The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.

BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833)

[case quote omitted]

From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly."

Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61:

C. THE INCORPORATION DOCTRINE

The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states.

The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government?

The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans.

American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted)

§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer

In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. ² Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth.

² Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.)

Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164:

B. BILL OF RIGHTS

One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause.

https://www.law.cornell.edu/wex/incorporation_doctrine

Incorporation Doctrine

The incorporation doctrine is a constitutional doctrine through which selected provisions of the Bill of Rights are made applicable to the states through the Due Process clause of the Fourteenth Amendment. This means that state governments are held to the same standards as the Federal Government regarding certain constitutional rights. The Supreme Court could have used the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases 83 US 36, the Supreme Court held that the Privileges and Immunities clause of the Fourteenth Amendment placed no restriction on the police powers of the state and it was intended to apply only to privileges and immunities of citizens of the United States and not the privileges and immunities of citizens of the individual states. This decision effectively put state laws beyond the review of the Supreme Court. To circumvent this, the Supreme Court began a process called “selective incorporation” by gradually applying selected provisions of the Bill of Rights to the states through the Fourteenth Amendment Due Process clause.

For Arsefaces who believe the whole Bill of Rights applies to the States today, they must explain the Fifth Amendment requirement for a Grand Jury.

Amendment 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 cases 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 in 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.

As everyone but Arseface knows, the vast majority of State cases are instituted without a Grand Jury, relying on an information submitted to the court.

Black's Law Dictionary, 6th Edition

Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury. Salvail v. Sharkey, 108 RI. 63, 271 A.2d 814, 817. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. People v. Cooper, 35 Misc.2d 90, 229 N.Y.S.2d 287, 288.

While Fifth Amendment of U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring a person to trial. As regards federal crimes, see Fed.RCrim.P. 7. See also Arraignment; Indictment; Preliminary hearing. As to joinder of informations, see Joinder.

The Grand Jury provision of the Fifth Amendment has not been incorporated against the States. That has been the state of things from 1791 to 2016.

Arseface.

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

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.

Amendment 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 cases 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 in 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.

Why are States free to ignore that requirement every day?

As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,

As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, in the document.

- 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.

Read below: --- "on a presentment or indictment".

Amendment 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 cases 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 in 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.

Why are States free to ignore that requirement every day?

States don't ignore it; -- they are empowered to use their own version of 'a presentment'.

Perhaps you should take a remedial course in reading comprehension?

Read below: --- "on a presentment or indictment".

Read below: --- "on a presentment or indictment"

Read again stupid: "Amendment 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,"

States use neither a presentment nor an indictment of a grand jury.

A grand jury is required for a Federal felony prosecution but not for a State prosecution. Get your head out of your ass.

Learn what a presentment is dumbshit.

Black's Law Dictionary, 6th Edition

Presentment. The written notice taken by a grand jury of any offense, from their own knowledge or observation without any bill of indictment laid before them at the suit of the government. A presentment is an accusation, initiated by the grand jury itself, and in effect instruction that an indictment be drawn. U.S. v. Briggs, C.A.Fla., 514 F.2d 794, 804. A written accusation of crime made and returned by the grand jury upon its own initiative in the exercise of its lawful inquisitorial powers, is in the form of a bill of indictment, and in practice is signed individually by all the grand jurors who return it. See State v. Hudson, 487 Tenn.Cr.Ap S.W.2d 672, 674. See also Indictment; Information; Presenter.

States don't ignore it; -- they are empowered to use their own version of 'a presentment'.

Perhaps you should take a remedial course in reading comprehension?

No, you are too ignorant of the law to know what a presentment is, and too lazy to look up a legal term you do not know. You blather on only to prove to the world that you have no clue what you are talking about.

For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved.

How can that be if the 5th Amendment applies to the States?

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,

As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, within the document. -- You claim the 5th amendment is such an exception.

For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?

According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Why do you think it can?

States are bound to honor our [the US] Constitution and its amendments, as specified in the document itself, and they always have been.

Of course.

Anyone arguing the point is a mere simpleton.

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

As you (falsely) claim that the whole Bill of Rights applies, and has always applied, to the States,

As usual, you fail to read and understand. ---- Note "as specified in the document itself". ---- There are specific exceptions, within the document. -- You claim the 5th amendment is such an exception.

As shown below, I contended the entire Bill of Rights applied only to the Federal government and not to the States when ratified in 1791.

Pursuant to the 14th Amendment, parts of the Bill of Rights have been selectively incorporated to apply to the States. The Second Amendment has recently been fully incorporated by McDonald v Chicago, 561 US 742 (2010). The Grand Jury provision of the 5th Amendment has never been incorporated and has never applied to the States, not in 1791, not now, and not in between.

No part of the Bill of Rights applies to the States, or has ever applied to the States, except those which have specifically been incorporated by the U.S. Supreme Court.

Your repeated claim that "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," is bullshit and has been bullshit for over two centuries.

As I have clearly stated, no part of the Bill of Rights has ever applied to the States until it was incorporated by the Supreme Court. Incorporation started in the 20th century. The Bill of Rights still has portions that have not been incorporated.

The Great State of California has, with no grand jury presentment or indictment, prosecuted a man for first degree murder, sentenced him to death, and had that upheld by the U.S. Supreme Court.

You may try to dodge, duck and divert but it isn't going to work. I will return yo to your bullshit and destroy it. You are only documenting your ignorance of the law, as with your ignorance of what a presentment is, and your ignorance of the rule of incorporation.

When ratified, the Bill of Rights hade no application to the States.

For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?

According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Why do you think it can?

The 2nd Amendment was fully incorporated in 2010 against the states., all of them, including California. As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

The 5th Amendment has never been fully incorporated and the Grand Jury provision has never applied to the States.

To help you remember:

#19. To: Roscoe, ConservingFreedom (#15)

Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.

The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government.

See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2:

(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermathfundamentally altered the federal system.

See MacDonald, Syllabus at 3:

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.

County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.

nolu chan  posted on  2016-05-18   17:12:50 ET  Reply   Trace   Private Reply  

---

#20. To: nolu chan, roscoe, Y'ALL (#19)

Roscoe --- Quote one Framer contending that the intent of the 2nd Amendment was to control county zoning laws, ignoramus.

Nolu Chan. ---- The 14th Amendment did not exist in the times of the Framers. In their time the entire BoR only applied to the Federal Government.

See MacDonald v. Chicago, 561 U.S. 742 (2010), Syllabus at 2: --- (b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system.

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.

County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional.

Correct.

tpaine  posted on  2016-05-18   17:29:08 ET  Reply   Trace   Private Reply  

Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?

According to you, it doesn't. -- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Why do you think it can?

As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

Good to see that on that point, we agree.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Of course. --- Anyone arguing the point is a mere simpleton.

More than 'mere', as we see by the repetitive postings of lengthy legalistic bull.

It's very amusing though, you must admit..

Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved. --- How can that be if the 5th Amendment applies to the States?

According to you, it doesn't.

No, acccording to all law books and the U.S. Supreme Court.

You make the bullshit claim that the whole Bill of Rights has always applied to the States. Cornered liike a trappede rat, you can only bluster and try more bullshit. What is obvious, and wich you only make more obvious, is that you have no idea of what you are talking about.

-- Which does NOT MEAN that a State like California can ignore the 2nd Amendment.

Part of the 5th Amendment not applying does not mean that the 2nd Amendment does not apply. Only a shithead, such as yourself, would make that claim.

As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

Good to see that on that point, we agree.

The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible.

IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT?

No answer, huh?

States are bound to honor our Constitution and its amendments, as specified in the document itself, and they always have been.

Of course, the States have always been free to ignore the Grand Jury requirement of the Fifth Amendment.

Poor little amusing tpaine can't seem to explain how that fits with his bullshit.

As I said at my #19: "County zoning laws which unduly infringe upon 2nd Amendment rights are unconstitutional."

Good to see that on that point, we agree.

The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.

The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible. ---- IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT.

Why? --- I can only speculate, but I'd say this minor point was conceded to the statism freaks by wise constitutionalists.

Compromise is a necessary evil in our republican form of govt.

The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.

But you admit that part of the 5th Amendment has never applied and has been ignored by the States since 1791, and you are unable to explain why your bullshit theory of the constitution has been ignored for 215 years and counting.

You and your bullshit are a winner, as described by Oliver Wendell Holmes,

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.

tpaine #40, imaginary constitutional law.

During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional.

Only an idiot, such as tpaine, could find an amendment to the Constitution to be unconstitutional.

As for the whole Bill of Rights,

Barron v. Baltimore, 32 U.S. 243, 247-48 (1833)

Opinion of the Court, Chief Justice Marshall (7-0)

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. 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.

American Constitutional Law 1, Sources of Power and Restraint, Otis H. Stephens, jr. and John M. Sheb II, 5th Ed., 2012, at 321:

Incorporation of the Bill of Rights. Originally, the protections of the Bill of Rights applied only to infringements of liberty by the federal government (see Barron v. Baltimore [1833]) (discussed and reprinted in Volume II, chapter 1). However, the Fourteenth Amendment created a constitutional basis for the application of the Bill of Rights to state action.

Constitutional Law, 17th Ed., Kathleen M. Sullivan and Gerald Gunther, Foundation Press, 2000, Page 348:

The Bill of Rights originally guaranteed individual liberties only against the federal government. The proposal of the Bill of Rights was part of a political compromise designed to enlist support for ratification from Anti-Federalists who did not trust the enumeration of powers in the federal Constitution to serve as a sufficient check on the new national autority. Express checks on arbitrary exercises of authority were meant to add an external check to government of enumerated and thus limited powers. While Article I, § 10 imposed a handful of express prohibitions on state action, nothing in the first eight Amendments expressly constrained the states, and the 10th Amendment expressly reiterated that powers not delegated to the United States were reserved to the States.

Constitutional Law, 3rd Edition, Erwin Chermerinsky, Aspen Publishers, 2009, page 525-26:

The issue arose early in American history as to whether the Bill of Rights applies to state and local governments. The Supreme Court definitively answered that question in the following case.

BARRON v. MAYOR & CITY COUNCIL OF BLATIMORE, 32 U.S. (7 Pet.) 243 (1833)

[case quote omitted]

From a late twentieth century perspective, it is troubling that state and local governments were free to violate basic constitutional rights. Yet, at the time of its decision, Barron made sense because of faith in state constitutions and because of the shared understanding that the Bill of Rights was meant to apply only to the federal government. As Professor John Hart Ely noted: "In terms of the original understanding, Barron was almost certainly decided correctly."

Cases and Materials on Federal Constitutional Law, Volume V, The Fourteenth Amendment, Lee J. Strang, Lexis-Nexis 2013, page 61:

C. THE INCORPORATION DOCTRINE

The Incorporation Doctrine is a key function of the Due Process Clause. The Doctrine holds that (most of) the Bill of Rights applies to the states.

The Incorporation Doctrine was at the heart of intense controversy from the 1920s to the 1960s. The controversy had a number of facets: first, whether the Bill of Rights applied to the states; second, whether the Due Process Clause was the vehicle to make that happen; third, whether the Due Process Clause incorporated some or all of the Bill of Rights; fourth, if the Due Process Clause incorporated only some of the Bill of Rights, what test should the Supreme Court utilize to make that determination; and, fifth, are the rights incorporated against the states identical to the rights as applied to the federal government?

The background to the Incorporation Doctrine has two major components. The first is the Supreme Court case of Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), reprinted below, where the Supreme Court ruled that the Bill of Rights only restricted the federal government. The second component is the goal of the Reconstruction Republicans, inherited from the antebellum abolitionist movement, to apply federal constitutional restrictions to the states to prohibit slavery and protect newly freed black Americans.

American Constitutional Law, Second Edition, Lawrence H. Tribe, The Foundation Press, Inc., 1988, page 772: (some citations omitted)

§ 11-2. Selective Incorporation of Bill of Rights Safeguards as a Partial Answer

In 1938, in United States v. Carolene Products Co., the Supreme Court suggested that "[t]here may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth." Nine years later, the Court came within one vote of holding that the fourteenth amendment guaranteed that "no state could deprive its citizens of the privileges and protections of the Bill of Rights. ² Such a holding could have taken either of two forms: most plausibly, it could have emerged as an elaboration of the privileges or immunities of national citizenship; or it could have emerged as a translation of fourteenth amendment "liberty" into the freedoms secured by the Bill of Rights, with the understanding that depriving someone of such liberty "without due process of law" means doing so "where the federal government could not." In neither form has the full incorporation of the Bill of Rights into the fourteenth amendment ever commanded a majority on the Court, but in giving content to the due process clause "the Court has looked increasingly to the Bill of Rights for guidance [to the point where] many of the rights guaranteed by the first eight Amendments'" have been "selectively" absorbed into the fourteenth.

² Adamson v. California, 332 U.S. 46, 74-75 (1947) (Black, J., dissenting, joined on this issue by Douglas, Mruphy, and Rutledge, JJ.)

Constitutional Law, Sixth Edition, Jerome A. Barron and C. Thomas Dienes, Black letter Series, West Group, 2003, page 164:

B. BILL OF RIGHTS

One of the acts of the first Congress was to initiate the enactment of ten amendments to the Constitution, popularly called the Bill of Rights. These amendments were designed to protect the individual from various infringements on freedom which might emanate from the newly created federal government. The provisions of the Bill of Rights do not directly limit state action. Barron v. The Mayor and City Council of Baltimore (1833). Most of the guarantees of the Bill of Rights apply to the states as part of the liberty protected by The Fourteenth Amendment Due Process Clause.

The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States. Good to see that on that point, we agree.

The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.

Other than that, you really should try to find another hobby. - - Constitutional law certainly seems to be causing you to become overwrought.

Oh noes. I wouldn't think of it. You are not good for much but slapping around for amusement. Keep providing amusement, you are doing a fine impression of a hit me doll. Unfortunately, you do not know shit about the law and it is painfully obvious. I will try to make it as painfully obvious as posssible. ---- IF, AS YOU MAINTAIN, THE BILL OF RIGHTS APPLIES, AND HAS ALWAYS APPLIED TO THE STATES, WHY HAVE THE STATES ALWAYS BEEN FREE TO IGNORE THE GRAND JURY REQUIREMENT OF THE FIFTH AMENDMENT.

Why? --- I can only speculate, but I'd say this minor point was conceded to the statism freaks by wise constitutionalists.

Compromise is a necessary evil in our republican form of govt.

But ------- you are unable to explain why your bullshit theory of the constitution has been ignored for 215 years and counting.

I've explained that to you numerous times before, on this thread, and others. --- You don't like my answer and you never will admit it. -- Tough.

tpaine #40, imaginary constitutional law.

During a discussion with Nolu Chan, he asserted that an amendment repealing the 2nd could be ratified, and become a valid part of our Constitution. I contend such an amendment would be unconstitutional.

Only an idiot, such as tpaine, could find an amendment to the Constitution to be unconstitutional.

Do you really think that calling me a name resolves the issue: -- can we 'amend away' our inalienable rights? Constitutionally? --- Logically, of course NOT. -- Why would you WANT to argue that we can? Damned if I know, or care..

You then go on: ---

As for the whole Bill of Rights, ---

Posting the same long list of opinions you've posted many times before. -- Opinions do not prove your point that: --

The 2nd Amendment was fully incorporated in 2010 by McDonald. In 1791, it did not apply at all to States.

The 2nd has always applied to the States, -- the 'incorporation' bull has just been used by statists to avoid compliance. - They, (and you) are losing.

You are full of shit. Lesson #1001 follows.

https://supreme.justia.com/cases/federal/us/92/542/case.html

United States v. Cruikshank, 92 U.S. 542, 553 (1875)

Syllabus at 542:

4. The right of the people peaceably to assemble for lawful purposes, with the obligation on the part of the States to afford it protection, existed long before the adoption of the Constitution. The First Amendment to the Constitution, prohibiting Congress from abridging the right to assemble and petition, was not intended to limit the action of the State governments in respect to their own citizens, but to operate upon the National Government alone. It left the authority of the States unimpaired, added nothing to the already existing powers of the United States, and guaranteed the continuance of the right only against Congressional interference. The people, for their protection in the enjoyment of it, must therefore look to the States, where the power for that purpose was originally placed.

Opinion of the Court at 552-53:

The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.

The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government republican in form implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in

Page 92 U. S. 553

these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.

The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

The Cruikshank OPINION above, claims that local police are not "restrained by the Constitution of the United States."?

And you actually believe this?

Get help...

The Cruikshank OPINION above, claims that local police are not "restrained by the Constitution of the United States."?

And you actually believe this?

Get help...

Typical asshole quote out of context. The tpaine Court of the Demented™ needs help. Help is on the way and will just keep on coming.

The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep36&id=147#147

NYC v. Miln, 36 U.S. 102, 139 (1837)

There is then no collision between the law in question and the acts of Congress just commented on, and therefore, if the state law were to be considered as partaking of the nature of a commercial regulation, it would stand the test of the most rigid scrutiny if tried by the standard laid down in the reasoning of the Court quoted from the case of Gibbons v. Ogden.

But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these:

That a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right but the bounden and solemn duty of a state to advance the safety, happiness, and prosperity of its people and to provide for its general welfare by any and every act of legislation which it may deem to be conducive to these ends where the power over the particular subject or the manner of its exercise is not surrendered or restrained in the manner just stated. That all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.

We are aware that it is at all times difficult to define any subject with proper precision and accuracy; if this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering. If we were to attempt it, we should say that every law came within this description which concerned the welfare of the whole people of a state or any individual within it, whether it related to their rights or their duties; whether it respected them as men, or as citizens of the state; whether in their public or private relations; whether it related to the rights of persons or of property, of the whole people of a state or of any individual within it, and whose operation was within the territorial limits of the state and upon the persons and things within its jurisdiction.

And you actually believe this?

Get help...

Typical asshole quote out of context.

You posted the whole of the 'opinion', and I noted the part most offensive to our Constitutional principles, -- a part that is NOT out of context except in YOUR 'asshole' opinion.

Here tis, again:

That a state has the same undeniable and unlimited jurisdiction over all persons and things within its territorial limits as any foreign nation where that jurisdiction is not surrendered or restrained by the Constitution of the United States. ----- That all those powers which relate to merely municipal legislation, or what may perhaps more properly be called internal police, are not thus surrendered or restrained, and that consequently, in relation to these, the authority of a state is complete, unqualified, and exclusive.

Obviously, as stated in your own quote, there are indeed some state powers that are --- "restrained by the Constitution of the United States" ---

Why in hell you choose to argue this point is beyond rationality.

Really, get help..

The Cruikshank OPINION above, claims that local police are not "restrained by the Constitution of the United States."?

And you actually believe this?

Get help...

Typical asshole quote out of context. The tpaine Court of the Demented™ needs help. Poor little paine is caught like a trapped rat. Help is on the way and will just keep on coming.

States were not restrained by the Bill of Rights until well after the adoption of the 14th Amendment.

Cruikshank at 553:

The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.

http://loc.heinonline.org/loc/Page?handle=hein.usreports/usrep32&id=559#559

Here is another U.S. Supreme Court opinion explicitly saying tpaine is a clueless gasbag. The hits just keep on coming.

Lessee of Livingston v. Moore, 32 U.S. 469, 551-52 (1833)

It is next contended, that the acts of 1806 and 1807 are unconstitutional and void, because contrary to the ninth section of the Pennsylvania bill of rights, which provides, in the words of magna charta, that no one shall be deprived of his property but by the laws of the land.

This exception has already been disposed of by the view that has been taken of the nature and character of those laws. It has been shown that there is nothing in this provision either inconsistent with natural justice or the constitution of the state: there is nothing of an arbitrary character in them. They are also charged with being contrary to the ninth article of the amendments of the constitution of the United States, and the sixth section of the Pennsylvania bill of rights, securing the trial by juy.

As to the amendments of the constitution of the United States, they must be put out of the case; since it is now settled that those amendments do not extend to the states: and this observation disposes of the next exception, which relies on the seventh article of those amendments.

Here is another U.S. Supreme Court opinion explicitly saying tpaine is a clueless gasbag. The hits just keep on coming. --- Lessee of Livingston v. Moore, 32 U.S. 469, 551-52 (1833) ----- -- As to the amendments of the constitution of the United States, they must be put out of the case; since it is now settled that those amendments do not extend to the states:

You mean your demented postings of arcane 'opinions' just keep on coming..

Whatta weirdo you are.

You mean your demented postings of arcane 'opinions' just keep on coming..

Of course, centuries of U.S. Supreme Court opinions are demented. Only tpaine is sane. Another daily dose of bullshit from the tpaine Court of the Demented™.

Then again, it was demented tpaine who claims amendments to the constitution can be held unconstitutional.

And it is demented tpaine who has shown he is incapable of response to my #40. I will repeat the post and demonstrate why tpaine is clearly demented in his claim that the Bill of Rights has always applied to the States.

#40. To: tpaine (#39)

Read below: --- "on a presentment or indictment".

Read below: --- "on a presentment or indictment"

Read again stupid: "Amendment 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,"

States use neither a presentment nor an indictment of a grand jury.

A grand jury is required for a Federal felony prosecution but not for a State prosecution. Get your head out of your ass.

Learn what a presentment is dumbshit.

Black's Law Dictionary, 6th Edition

Presentment. The written notice taken by a grand jury of any offense, from their own knowledge or observation without any bill of indictment laid before them at the suit of the government. A presentment is an accusation, initiated by the grand jury itself, and in effect instruction that an indictment be drawn. U.S. v. Briggs, C.A.Fla., 514 F.2d 794, 804. A written accusation of crime made and returned by the grand jury upon its own initiative in the exercise of its lawful inquisitorial powers, is in the form of a bill of indictment, and in practice is signed individually by all the grand jurors who return it. See State v. Hudson, 487 Tenn.Cr.Ap S.W.2d 672, 674. See also Indictment; Information; Presenter.

States don't ignore it; -- they are empowered to use their own version of 'a presentment'.

Perhaps you should take a remedial course in reading comprehension?

No, you are too ignorant of the law to know what a presentment is, and too lazy to look up a legal term you do not know. You blather on only to prove to the world that you have no clue what you are talking about.

For a major Federal crime, a grand jury is mandatory per the 5th Amendment. For a State prosecution is is not, depending on State law. Most states use an information, with no grand jury presentment or indictment involved, as no grand jury is involved.

How can that be if the 5th Amendment applies to the States?

nolu chan  posted on  2016-05-24   18:38:37 ET  

Hurtado v California, 110 US 516 (1884) 5th amd grand jury does not apply to states

https://www.law.cornell.edu/wex/criminal_procedure

Stages of the Criminal Trial

After law enforcement arrests a suspect, a judge will set the suspect's initial bail, which is a specified amount of cash that allows the defendant to get out of jail after the initial arrest. If the defendant shows up for the proper court dates, the court refunds the bail, but if the defendant skips the date, then the court keeps the bail and issues a warrant for the individual's arrest.

The arraignment comes next. During an arraignment, a judge calls the person charged and takes the following actions: reading the criminal charges against the accused, asking the accused whether the accused has access to an attorney or needs the assistance of a court-appointed attorney, asking the accused to plead, deciding whether to amend the initial bail amount, and setting the dates of future proceedings.

The preliminary hearing follows the arraignment. At the preliminary hearing, the judge determines whether enough evidence exists for the prosecution to meet its burden of persuasion. The burden of persuasion refers to whether the prosecution even has enough evidence to make the defendant stand trial. The defense has the right to cross examine the government witnesses during this proceeding. Under federal law, a grand jury, rather than a judge, makes this determination when the defendant faces "capital or infamous crimes" pursuant to the U.S. Constitution's Fifth Amendment. Unlike the other rights afforded to criminal defendants, the U.S. Supreme Court has not found the Fifth Amendment grand jury right incorporated into state law through the Fourteenth Amendment.

https://en.wikipedia.org/wiki/Hurtado_v._California

Facts of the case

Joseph Hurtado discovered that his wife, Susie, was having an affair with their friend, José Antonio Estuardo. After measures Hurtado took to put an end to the adulterous affair, such as temporarily sending his wife away to live with her parents, and later assaulting Estuardo in a bar after his wife returned and the liaisons resumed, proved futile, Hurtado fatally shot Estuardo. Hurtado was arrested for the crime but not indicted by a grand jury.

According to the California State Constitution at the time, the following applied: "Offenses heretofore required to be prosecuted by indictment, shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law. A grand jury shall be drawn and summoned at least once a year in each county."

The judge examined the information and determined that Hurtado should be brought to trial. Hurtado was tried, convicted of murder, and sentenced to death. At issue was whether or not the 14th Amendment's Due Process Clause extended to the states the 5th Amendment's Indictment Clause requiring indictment by grand jury.

Questions presented

Does a state criminal proceeding based on an information rather than a grand jury indictment violate the 14th Amendment's due process clause? [2] Is a grand jury indictment required by the 5th Amendment applicable to state criminal trials via the 14th Amendment?

Supreme Court decision

The Supreme Court ruled 7-1 that Hurtado's due process right was not violated by denial of a grand jury hearing and that the 14th Amendment was not intended to work retroactively to apply the 5th Amendment to state criminal trials. Writing for the majority, Justice Matthews stated that the states should be free to construct their own laws without infringement and that the 14th Amendment was not intended to guarantee the right of a grand jury because it would have been specifically referenced. His opinion also concluded that Hurtado's due process right was not violated because an information is "merely a preliminary proceeding and can result in no final judgment." He further concluded that Hurtado still received a fair trial.

https://supreme.justia.com/cases/federal/us/110/516/case.html

U.S. Supreme Court

Hurtado v. California, 110 U.S. 516 (1884)

Argued January 22d, 23d 1884.

Decided March 3d, 1884

110 U.S. 516

IN ERROR TO THE SUPREME COURT OF CALIFORNIA

Syllabus

1. The words "due process of law" in the Fourteenth Amendment of the Constitution of the United States do not necessarily require an indictment by a grand jury in a prosecution by a State for murder.

2. The Constitution of California authorizes prosecutions for felonies by information, after examination and commitment by a magistrate, without indictment by a grand jury, in the discretion of the legislature. The Penal Code of the State makes provision for an examination by a magistrate, in the presence of the accused, who is entitled to the aid of counsel

Page 110 U. S. 517

and the right of cross-examination of witnesses, whose testimony is to to reduced to writing and upon a certificate thereon by the magistrate that a described offence has been committed and that here is sufficient cause to believe the accused guilty thereof, and an order holding him to answer thereto, requires an information to be filed against the accused in the Superior court of the county in which the offence is triable in the form of an indictment for the same offence. Held, that a conviction upon such an information for murder in the first degree and a sentence of death thereon are not illegal by virtue of that clause of the Fourteenth Amendment to the Constitution of the United States which prohibits the States from depriving any person of life, liberty or property without due process of law.

[...]

It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

The Constitution of Connecticut, adopted in 1818 and in force when the Fourteenth Amendment took effect, requires an indictment or presentment of a grand jury only in cases where the punishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall "be deprived of life, liberty, or property but by due course of law." It falls short, therefore, of that measure of protection which it is claimed is guaranteed by Magna Charta to the right of personal liberty, notwithstanding which it is no doubt justly said in Swift's Digest 17, that

"This sacred and inestimable right, without which all others are of little value, is enjoyed by the people of this State in as full extent as in any country on the globe, and in as high a degree as is consistent with the nature of civil government. No individual or body of men has a discretionary or arbitrary power to commit any person to prison; no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined unless by virtue of the express laws of the land. "

Page 110 U. S. 538

Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offence of less grade than a felony, except misprision of treason, and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial interest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment except as the consequence of a regular judicial trial, conducted precisely as in cases of indictments.

In reference to this mode of proceeding at the common law, and which he says "is as ancient as the common law itself," Blackstone adds (4 Com. 305):

"And as to those offences in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction and were carried on in a legal and regular course in His Majesty's Court of King's Bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment."

For these reasons, finding no error therein, the judgment of the Supreme Court of California is

Affirmed.

Of course, centuries of U.S. Supreme Court opinions are demented. Only tpaine is sane.

You yourself admitted, way up post, that SCOTUS opinions have changed over the years. -- This doesn't make THEM demented, but you sure are...

But keep it up, please, --- this is really becoming amusing.

You mean your demented postings of arcane 'opinions' just keep on coming..

It is demented tpaine who has demonstrated he is incapable of explaining why states have never been required to use a presentment or indictment of a grand jury as required by Amendment 5 for the Federal government. After all, he is the jackass who insists that the entire Bill of Rights has always applied to the States, despite the mountain of evidence to the contrary.

And, of course, he has nothing with which to support his bullshit other than more of his own bullshit.

It's time for yet another U.S. Supreme Court opinion documenting that tpaine is full of shit.

https://supreme.justia.com/cases/federal/us/413/123/case.html

U.S. Supreme Court

United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 132-33 (1973)

Douglas, J. dissenting

"[W]hatever may [have been] the form which the several States . . . adopted in making declarations in favor of particular rights," James Madison, the author of the First Amendment, tells us,

"the great object in view [was] to limit and qualify the powers of [the Federal] Government by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode."

1 Annals of Cong. 437. Surely no one should argue that the retention by the States of vestiges of established religions after the enactment of the Establishment and Free Exercise Clauses saps these clauses of their meaning. Yet it was precisely upon such reasoning that this Court, in Roth, exempted the bawdry from the protection of the First Amendment.

When it was enacted, the Bill of Rights applied only to the Federal Government, Barron v. Mayor of Baltimore, 7 Pet. 243, and the Tenth Amendment reserved the residuum of power to the States and the people. That the States, at some later date, may have exercised this reserved power in the form of laws restricting expression in no wise detracts from the express prohibition of the First Amendment. Only when the Fourteenth Amendment was passed did it become even possible to argue that, through it, the First Amendment became applicable to the States. But that goal was not attained until the ruling of this Court in 1931 that the reach of the Fourteenth Amendment included the First Amendment. See Stromberg v. California, 283 U. S. 359, 283 U. S. 368.

It is demented tpaine who has demonstrated he is incapable of explaining why states have never been required to use a presentment or indictment of a grand jury as required by Amendment 5 for the Federal government.

Explained just above. --- As usual, you don't like my explanation, so you deny that it was made. -- You're behaving like a spoiled brat.

After all, he is the jackass who insists that the entire Bill of Rights has always applied to the States, despite the mountain of evidence to the contrary.

No mountain of evidence exists, just a a pile of opinions by pre civil war slave statists and after by Jim Crow democrats, followed by gun and drug war prohibitionists.

Obviously, nolu chan supports these statist prohibitionists.

No mountain of evidence exists, just a a pile of opinions by pre civil war slave statists and after by Jim Crow democrats, followed by gun and drug war prohibitionists.

Obviously, nolu chan supports these statist prohibitionists.

From my #63 referred to.

https://supreme.justia.com/cases/federal/us/413/123/case.html

U.S. Supreme Court

United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 132-33 (1973)

Douglas, J. dissenting

"[W]hatever may [have been] the form which the several States . . . adopted in making declarations in favor of particular rights," James Madison, the author of the First Amendment, tells us,

"the great object in view [was] to limit and qualify the powers of [the Federal] Government by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode."

[...]

Yes, per the demented tpaine, James Madison was a pre-civil war slave statist who did not understand what the Bill of Rights was about. tpaine is the self-appointed expert who knows better than James Madison, he who is renowned as the Father of the Constitution and co-author of the Federalist Papers.

As will be seen shortly, tpaine also knows better than the Framers of the 14th Amendment.

tpaine is an ignorant, demented shitbag.

James Madison, Gales & Seatons History of the Debates in Congress, June 9, 1789, pp. 453-54

The first of these amendments relates to what may be called a bill of rights.

[...]

But whatever may be the form which the seve­ral States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, some­times against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less neces­sary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be levelled against the legis­lative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of right can tend to prevent the exercise of undue pow­er, it cannot be doubted but such declaration is proper.

Obviously, nolu chan supports these statist prohibitionists.

»» James Madison, the author of the First Amendment, tells us, "This great object in view [was] to limit and qualify the powers of [the Federal] Government by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular moment.----- Yes, per tpaine, James Madison was a pre-civil war slave statist who did not understand what the Bill of Rights was about.

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.

But whatever, -- Please continue your demented ranting. -- It's fun..

James Madison, Gales & Seatons History of the Debates in Congress, June 9, 1789, pp. 453-54

The first of these amendments relates to what may be called a bill of rights.

[...]

But whatever may be the form which the seve­ral States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, some­times against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

tpaine at #66:

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.

You are clearly a bigoted asshole fuckstick. Not that there is anything wrong with that. The world needs bigoted asshole fucksticks to laugh at.

Let us not forget that Washington and Jefferson were slave owners, and Illinois, the Land o' Lincoln, proudly replaced slavery with 99-year indentured servitude and among the strictest Black laws in the country. Indeed, after slavery ended in the South, the 13th Amendment was needed to end slavery in the Union states where it persisted.

Onward and upward at demonstrating the scope of your assholery in denying that the Bill of Rights did not apply to the States, and characterizing James Madison as a liar when he said that.

Representative John Bingham and Senator Jacob Howard were co-authors, Framers of the Fourteenth Amendment. They should have known why a Fourteenth Amendment was necessary, and that the Bill of Rights did not apply to the States.

Representative John Bingham, House of Representatives, 28 February 1866, Cong. Globe, 39th Cong., 1st Sess., pp. 1089-90:

Mr. BINGHAM. Yes, sir, in the debate. A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Govern­ment to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the neces­sity of adopting this amendment.

Mr. Speaker, on this subject I refer the House and the country to a decision of the Supreme Court, to be found in 7 Peters, 217, in the case of Barron vs. The Mayor and City Council of Baltimore, involving the question whether the provisions of the fifth article of the amendments to the Constitution are bind­ing upon the State of Maryland and to be enforced in the Federal courts. The Chief Justice says:

"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 of 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 tho power of the General Government, not as applicable to the States."

I read one further decision on this subject— the case of the Lessee of Livingston vs. Moore and others 7 Peters, page 551. The court, in delivering its opinion, says:

"As to the amendments of the Constitution of the United States, they must be put out of the case, since it is now settled that those amendments do not extend to the States; and this observation disposes of the next exception, which relies on the seventh article of those amendments."

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.

You are clearly a bigoted ---- -----. Not that there is anything wrong with that. The world needs bigoted ---- ----- to laugh at.

You're the laugh here, reduced to sputtering your silly language. -- Nothing bigoted about civil war facts..

Let us not forget that Washington and Jefferson were slave owners, and Illinois, the Land o' Lincoln, proudly replaced slavery with 99-year indentured servitude and among the strictest Black laws in the country. Indeed, after slavery ended in the South, the 13th Amendment was needed to end slavery in the Union states where it persisted.

SO? -- What?

Onward and upward at demonstrating the scope of your --- holery in denying that the Bill of Rights did not apply to the States, and characterizing James Madison as a liar when he said that.

Read much? I didn't characterize Madison as a liar, -- which makes you one, as anyone can read..

Representative John Bingham and Senator Jacob Howard were co- authors, Framers of the Fourteenth Amendment. They should have known why a Fourteenth Amendment was necessary, and that the Bill of Rights did not apply to the States. ---- Representative John Bingham, House of Representatives, 28 February 1866, Cong. Globe, 39th Cong., 1st Sess., pp. 1089-90: ---- Mr. BINGHAM. Yes, sir, in the debate. A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Govern­ment to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the neces­sity of adopting this amendment.

How weird you are, as the above proves MY point.

[tpaine #66] 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.

[tpaine #68] Read much? I didn't characterize Madison as a liar, -- which makes you one, as anyone can read..

Of course you did. You allege he told a deliberate untruth to deceive others. That is what a lie is. A lie is told by a liar. That would be you. Madison told the truth.

[tpaine #68 quoting my quote of Bingham] "I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the neces­sity of adopting this amendment.

[tpaine #68] No, dishonorable asshole. Decisions showing that the Bill of Rights did not apply to the States, necessitating the 14th Amendment to cure the problem, prove you are a dishonorable asshole.

Continuing with Bingham showing that you are a dishonorable asshole—

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)

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:

"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."

Damn, you are one stupid asshole.

Yes, per tpaine, James Madison was a pre-civil war slave statist who did not understand what the Bill of Rights was about.

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.

You allege he told a deliberate untruth to deceive others. That is what a lie is. A lie is told by a liar. That would be you. Madison told the truth.

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'.

Damn, you are one stupid asshole.

Just yesterday, our leader asked for a bit more civility. Do you feel exempt?

Just yesterday, our leader asked for a bit more civility.

But he never asked anyone to lie.

lol

Just yesterday, our leader asked for a bit more civility.

But he never asked anyone to lie. ---- lol

Damn, you are one stupid asshole.

This was nolu Chan's line.

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.

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'.

No, you stupid fuck.

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, dishonorable asshole, 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?

Chief Justice John Marshall -- Federalist [Adams]

Justice William Johnson -- Democratic-Republican Party [Jefferson]

Justice Gabriel Duvall -- Democratic-Republican Party [Madison]

Justice Joseph Story -- Democratic-Republican Party [Madison]

Justice Smith Thompson -- National Republican Party [Monroe]

Justice McLean -- Democraatic-Republican Party [Monroe]

Justice Baldwin -- Democratic Republican Party [Jackson]

https://www.oyez.org/cases/1789-1850/32us243

Petitioner
John Barron ex rel. Tiernan

Respondent
Mayor of Baltimore

Docket no.
None

Decided by
Marshall Court (1830-1834)

Citation
32 US 243 (1833)

Argued
Feb 8 - 11, 1833

Decided
Feb 16, 1833

Facts of the case

John Barron was co-owner of a profitable wharf in the harbor of Baltimore. As the city developed and expanded, large amounts of sand accumulated in the harbor, depriving Barron of the deep waters which had been the key to his successful business. He sued the city to recover a portion of his financial losses.

Question

Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?

Conclusion

Decision for Mayor of Baltimore

dismissal - other by John Marshall

The provisions of the first eight amendments applied only to the national government, not to the states

No. The Court announced its decision in this case without even hearing the arguments of the City of Baltimore. Writing for the unanimous Court, Chief Justice Marshall found that the limitations on government articulated in the Fifth Amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the Fifth Amendment was not applicable to the states.

Cite this page

"Barron ex rel. Tiernan v. Mayor of Baltimore." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Jun 2, 2016.

https://www.oyez.org/cases/1789-1850/32us243

Just yesterday, our leader asked for a bit more civility. Do you feel exempt?

No. I have always provided, and wish to assure you, that I will always provide you with the all civility and courtesy you deserve.

No. I have always provided, and wish to assure you, that I will always provide you with the all civility and courtesy you deserve.

But don't lie. If tpaine is an asshole... well then it is what it is.

lol

To Madison, ratification was more important than a white 'lie'.

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?

Because they were attempting to save the Union by telling the slave States what they insisted hearing. -- It worked, --- for a while.