Questions about U.S. Constitution

[lspooner]

I am not a worshipper of the U.S. Constitution.  Lysander Spooner is one of the biggest influences on my thinking.(The others are Murray Rothbard and Thomas Szasz).  With that said, I would have no problem if we had a constitutional government.  The Article of Confederation would be even better.

One of the many questions/problems I do have with the Constitution is the wording in the Bill of Rights(Should be called the Bill of Prohibitions).  The 1st Amendment explicitly prohibits Congress from doing certain things but the 2nd and 4th (and others) don't mention Congress.  Does that mean that the original Constitution empowered the Federal Government to overturn any state laws that abridged the 2nd and 4th amendments?

[MaineShark]

I am not a worshipper of the U.S. Constitution.  Lysander Spooner is one of the biggest influences on my thinking.(The others are Murray Rothbard and Thomas Szasz).  With that said, I would have no problem if we had a constitutional government.  The Article of Confederation would be even better.

One of the many questions/problems I do have with the Constitution is the wording in the Bill of Rights(Should be called the Bill of Prohibitions).  The 1st Amendment explicitly prohibits Congress from doing certain things but the 2nd and 4th (and others) don't mention Congress.  Does that mean that the original Constitution empowered the Federal Government to overturn any state laws that abridged the 2nd and 4th amendments?

The Bill of Rights/Prohibitions/Limitations (the latter is my preference) doesn't empower any government to do anything.  It merely states that certain things are human rights, and that the government may not violate them.  Any violation is a crime against humanity, not a violation of the law.  If one wanted to petition the Feds to help him in obtaining justice regarding such a crime against humanity, that would be his option.

Joe

[lspooner]

I'm afraid I wasn't clear with what I was asking.  As far as constitutional theory goes,  does the Bill of Rights in the Original Constitution restrict state laws in regards to the right to keep and bears arms and as as prohibitions on unreasonable search and seizure.  The 1st Amendment explicitly mentions Congress but the 2nd and 4th(and most of the rest) don't.

For example, if NH passed a gun control law, can a citizen validly challenge that law in Federal Court, assuming that the state court system upholds the statute.

[Demolama]

the Bill of Rights... unless adopted by the state governments in their own state constitutions, was only a list of certain rights that the federal government could not infringe upon... not the state governments.

This was confirmed in Mr. Madison's address to create a Bill of Rights to Congress on 8 June 1789 which sparked the debates which carried on until ratification.

The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the Federal Constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency

emphases added

Why would he be so worried about a bill of rights in both state and federal constitution if this Bill of Rights he is presenting was a sweeping effect for both government types?

The Federal Constitution puts limits on the Federal Government it was also assumed that the States would not accept such blatant infringement upon their sovereignty if the Bill of Rights were to extend to both the states and the federal government.  Upon reading the debates this was true.

Also when Mr. Madison was presenting these amendments he had placed them within the Articles of the Constitution itself he said for each one to be placed  "That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses"

Article 1 section 9 is the limitation of the Congress not the states which is Section 10.

This as we know was not done because the belief that the Constitution as written was sacred and needed to be preserved as is with the original signers.  To insert anything within the document would break this.  Thus why the amendment process as we currently know it was adopted.

The SCOTUS also upheld the belief that the Federal Bill of Rights found in the Constitution did not apply to the States.  Take the case of Takings Clause  in 1833

In Barron v. Baltimore (32 U.S. 243 [1833]), the Court ruled that the Takings Clause of the 5th Amendment did not apply to the City of Baltimore and the State of Maryland by extension. Succinctly, the Court wrote: "...the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states."

It wasn't until the 20th century and the grasping of straws in the 14th amendment did the Bill of Rights extend into the states.

The courts started to do a doctrine known as "Incorporation" through the 14th amendment's Due Process clause... however the courts got to pick and choose which parts of the Bill of Rights got Incorporated.  Many of the current Federal Bill of Rights are not incorporated to the States.


"While such rights as freedom of speech were clearly "fundamental," according to Justice Cardozo and the Supreme Court majority, others were not. Thus, the Supreme Court established the principle of "partial incorporation": Only certain "fundamental rights," not the entire Bill of Rights, apply to the states through the due process clause of the 14th Amendment. [Palko v. Connecticut, 302 U.S. 319 (1937)] By 1972, the Supreme Court had "incorporated" into the 14th Amendment all but five rights named in the Bill of Rights. Those rights still not deemed "fundamental" include the Second Amendment right to bear arms, the Third Amendment protection against quartering troops in private homes, the Fifth Amendment right of grand jury indictment, the Seventh Amendment right of trial by jury in civil cases, and the Eighth Amendment guarantee against excessive bail and fines. (The Ninth and Tenth amendments do not name specific personal rights.)"

[error]

For example, if NH passed a gun control law, can a citizen validly challenge that law in Federal Court, assuming that the state court system upholds the statute.

With the warning in advance that the Constitution is just a goddamned piece of paper:

Yes. But not because of the Bill of Rights, but because of the 14th Amendment.

[lildog]

I am not a worshipper of the U.S. Constitution.  Lysander Spooner is one of the biggest influences on my thinking.(The others are Murray Rothbard and Thomas Szasz).  With that said, I would have no problem if we had a constitutional government.  The Article of Confederation would be even better.

One of the many questions/problems I do have with the Constitution is the wording in the Bill of Rights(Should be called the Bill of Prohibitions).  The 1st Amendment explicitly prohibits Congress from doing certain things but the 2nd and 4th (and others) don't mention Congress.  Does that mean that the original Constitution empowered the Federal Government to overturn any state laws that abridged the 2nd and 4th amendments?

The whole Constitution is about limiting the power of government.  Sadly it has been twisted and ignored over time.

But in my opinion, yes the federal constitution was meant to be the top level of rules which all other levels of government must follow.  We continue to see violation after violation go unchecked however so take it for what it's worth.

[MaineShark]

I'm afraid I wasn't clear with what I was asking.  As far as constitutional theory goes,  does the Bill of Rights in the Original Constitution restrict state laws in regards to the right to keep and bears arms and as as prohibitions on unreasonable search and seizure.  The 1st Amendment explicitly mentions Congress but the 2nd and 4th(and most of the rest) don't.

For example, if NH passed a gun control law, can a citizen validly challenge that law in Federal Court, assuming that the state court system upholds the statute.

Sorry, I wasn't clear.  The Constitution, in and of itself, doesn't limit the several states except in particular ways ("full faith and credit" clause, for example).  But the Bill of Rights lists human rights, so you can ask anyone to champion your cause if someone violates them.  That includes, but is not limited to, the Federal Government.

Joe

[CaveDog]

As error pointed out, the 14th amendment gives priority to federal law as follows...

Section. 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

and...

Section. 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.

[Caleb]

As error pointed out, the 14th amendment gives priority to federal law as follows...

Section. 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and
of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.

and...

Section. 5. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.

But then you have the issue:  Was the 14th amendment adopted by a Constitutionally elected Congress?  And was it ratified free from coercion?

If not, then it cannot be said to be a valid part of the Constitution, can it?

[CaveDog]

But then you have the issue:  Was the 14th amendment adopted by a Constitutionally elected Congress?  And was it ratified free from coercion?

If not, then it cannot be said to be a valid part of the Constitution, can it?

There are vast swaths of legislation on the books that could be questioned on moral principles, but ls asked in the context of whether it could be argued as law in the courts, which I presume it could. Whether the courts pay more attention to the actual law or what's politically expedient is another matter.