# Think Tank > U.S. Constitution >  The libertarian basis of the 14th amendment

## Mesogen

I always thought it odd that so many people call themselves libertarian or freedom-loving people and then decry the 14th amendment. 

Today I came across this article in Reason magazine online that told the story of a certain supreme court justice, Stephen Johnson Field. From Field's wiki page:




> He was a vocal proponent of the substantive due process theory that protected property rights from regulation under the Fourteenth Amendment--as illustrated in his dissents to the Slaughterhouse Cases and Munn v. Illinois. Field's views were eventually adopted by the court's majority, but only after his death. However, he helped end the income tax (Pollock v. Farmers' Loan and Trust Company), limit anti-trust law (United States v. E.C. Knight Company), and the power of the Interstate Commerce Commission.


So basically, this guy was thoroughly libertarian when it came to property rights and used the 14th amendment to this end. 

He was appointed by Lincoln and became a total judicial activist for property rights and laissez-faire economics. 

http://www.reason.com/news/show/130787.html




> As Michael Kent Curtis demonstrates in his definitive history of the subject, _No State Shall Abridge_, and as Gans and Kendall note in their article, the Privileges or Immunities Clause was designed to nationalize the Bill of Rights and other fundamental liberties. Its purpose was to protect both natural rights (immunities) and civil rights (privileges) against tyrannical state governments. _Slaughterhouse_ [cases] turned that design on its head.
> 
> At issue was a Louisiana law granting a 25-year slaughterhouse monopoly to a private firm. Writing for the Court's 7-2 majority, Justice Samuel F. Miller held that not only was the monopoly constitutional, but the _Privileges or Immunities Clause_ actually meant something very different from what it said. According to Miller, the clause protected only a modest set of rights associated with the federal government, basically leaving the states free to regulate and restrict liberty as they saw fit.
> 
> Writing in dissent, Justice Stephen J. Field and Justice Joseph Bradley got things right. As Field declared, the amendment clearly protects those "natural and inalienable rights" that "belong to the citizens of all free governments," including "the right to pursue lawful employment in a lawful manner." Yet under the majority's tortured reasoning, he continued, this majestic provision had been reduced to a "vain and idle enactment."


(But then near his retirement and in senility went with the majority in Plessy v. Ferguson. O well.) 


The 14th amendment was designed to protect individual liberty from tyranny, coming specifically from state governments. 

In my opinion, the Bill of Rights already was national based on the wording. But some Supreme Court decisions said that it was not, which is ridiculous. So Section 1 of the 14th amendment simply nails the question home so that there is no ambiguity that there would are constitutional restrictions on the action of state governments. 

How can any libertarian not be in favor of wording in the constitution that limits the action of government against the freedom of individuals? It is beyond me why anyone that says they love freedom would be against the 14th amendment.


Also linked to in the article: http://www.reason.com/news/show/32306.html

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## gls

Any Federal Government that is strong enough to protect individual rights is strong enough to take them away.

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## Mesogen

> Any Federal Government that is strong enough to protect individual rights is strong enough to take them away.


The same is true of any government. 

With any luck, (or as the FFs might say "by the favor of Divine Providence") there will be constitutional restrictions on those governments in order to limit their power to violate individual rights. 

That's what the 14th amendment is all about.

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## gls

> The same is true of any government. 
> 
> With any luck, (or as the FFs might say "by the favor of Divine Providence") there will be constitutional restrictions on those governments in order to limit their power to violate individual rights. 
> 
> That's what the 14th amendment is all about.


Well, ask the sick people in California, who have been arrested and put in Federal prison for dispensing medical marijuana, about how good Washington is at protecting individual rights. The potential oppression of the states would be checked by competition amongst themselves; there is no such factor when the Federal government declares itself overlord, only the option to leave the country outright -- which is hardly an easy thing to do.

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## Mesogen

> Well, ask the sick people in California, who have been arrested and put in Federal prison for dispensing medical marijuana, about how good Washington is at protecting individual rights.


I didn't say the federal government was _good_ at protecting individual rights. I said the 14th amendment was aimed at doing so and that I couldn't understand anyone calling themselves a libertarian or liberty-minded person being against it or its wording. Hell, the federal government wasted no time in turning the 14th amendment on its head making it mean practically the opposite of the way it was intended.

The State of California needs to do a better job of fighting against the Feds for its reserved powers. It's not so good at protecting individual rights either.




> The potential oppression of the states would be checked by competition amongst themselves; there is no such factor when the Federal government declares itself overlord, only the option to leave the country outright -- which is hardly an easy thing to do.


It would hardly be so easy to leave individual states, or enter others, if there were no federal government enforcing Article IV of the constitution. If states were truly sovereign countries to their own, they would have their own true borders and immigration among the states could easily be restricted. You might want to live in another state, but going through their immigration process may be quite difficult. The only reason you can just up and move and become a resident of another state is because of the federal constitution.

I never said the federal government is always good. I am saying that sometimes it is necessary as a check on the power of state government, just as a state government should be a check on federal power.

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## gls

> I didn't say the federal government was _good_ at protecting individual rights. I said the 14th amendment was aimed at doing so and that I couldn't understand anyone calling themselves a libertarian or liberty-minded person being against it or its wording. Hell, the federal government wasted no time in turning the 14th amendment on its head making it mean practically the opposite of the way it was intended.


Who cares what the 14th Amendment was "aimed" at doing? The fact that it is so susceptible to abuse in reality makes it flawed. "The road to hell is paved with good intentions" and all that jazz... 




> It would hardly be so easy to leave individual states, or enter others, if there were no federal government enforcing Article IV of the constitution. If states were truly sovereign countries to their own, they would have their own true borders and immigration among the states could easily be restricted. You might want to live in another state, but going through their immigration process may be quite difficult. The only reason you can just up and move and become a resident of another state is because of the federal constitution.


I suppose, but that's beside the point as Article IV and the 14th Amendment are separate topics. 




> I never said the federal government is always good. I am saying that sometimes it is necessary as a check on the power of state government, just as a state government should be a check on federal power.


I disagree. It is this kind of thinking that allowed the federal government to become the out-of-control behemoth it is today.

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## Mesogen

> Who cares what the 14th Amendment was "aimed" at doing? The fact that it is so susceptible to abuse in reality makes it flawed. "The road to hell is paved with good intentions" and all that jazz...


Then to hell with the Campaign for Liberty and electing Ron Paul types to office. I mean, there are so many good intentions that we will be dining with Beelzebub before sunset. 

The constitution is totally flawed and abused routinely. So who cares what it says? 

Don't you think there should be at least something that people can point to (especially in court) that aims to restrict the powers of a government? If these words on paper didn't exist and weren't ratified by state governments, then there would be one less tool to restrict the impositions of state governments on the residents of that state.




> I disagree. It is this kind of thinking that allowed the federal government to become the out-of-control behemoth it is today.


No way. The _mis_application and _mis_interpretation of various other parts of the constitution are what allowed the federal government to become a behemoth. 

I say that these checks and balances have been brakes on the rapid accumulation of power by the states and the federal government. Without them, I think we'd be worse off. 

The Bill of Rights is a check on state governments (IMO) against their imposition on individual rights. The supreme court decided to _mis_apply them for a long time before the civil war, though, and they were not applied to the states. What if they had kept doing that? So one state might have a law that says that cops can come and search you anytime for any reason. Another state might take property without just compensation and give it to anyone it pleases. They do this now, but they do it illegally. Imagine if it were legal, if there were no federal check on these powers. But did the Bill of Rights lead to a big federal government? No. 

What did? Super awful supreme court decisions on the commerce clause, the necessary and proper clause, and the MF-ing 16th amendment. 

Also, the states have been doing a piss poor job lately of retaining their reserved powers as a check on the federal government. 

So, IMO, the federal government has gotten large, not because it attempts to be a check on the powers of state governments, but because there hasn't been enough check on its power by the states or the courts.

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## demolama

> In my opinion, the Bill of Rights already was national based on the wording. But some Supreme Court decisions said that it was not, which is ridiculous. So Section 1 of the 14th amendment simply nails the question home so that there is no ambiguity that there would are constitutional restrictions on the action of state governments.


The states at the time of the Bill of Rights adoption knew what the federal constitution was meant for... limitation upon the federal government only.  It wasn't just the federal court cases that decided that the Bill of Rights was not applicable to the states but the founders as well.   Which is why each state had their own constitution and their own bill of rights.   These  restrictions in the federal bill of rights were restrictions upon what the federal government can and can not do only.




> It would hardly be so easy to leave individual states, or enter others, if there were no federal government enforcing Article IV of the constitution. If states were truly sovereign countries to their own, they would have their own true borders and immigration among the states could easily be restricted. You might want to live in another state, but going through their immigration process may be quite difficult. The only reason you can just up and move and become a resident of another state is because of the federal constitution.


Immigration was restricted.. locally... many outside people were tossed out of town as vagrants.  But the Privileges and Immunity clause allows all member of the US union to freely reside within each state without having to be a citizen of that state.  You can be a citizen of the United States without being a citizen of the state in which you resided.  And why do you need the federal government to enforce Article IV?  The states ratified the Constitution and as a member of any contract they must abide by the terms. 

Many states refused to enforce the Fugitive slave law which was a violation of Article IV.  But the federal government didn't come in and force the states in breach to comply

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## Mesogen

> The states at the time of the Bill of Rights adoption knew what the federal constitution was meant for... limitation upon the federal government only.


I know what they thought, but it what matters most is what the words say (this is my opinion and would have argued such had I been there at the time).

"The right of the people to be secure..."
"the right of the people to keep and bear Arms..."
"No person shall be held to answer..."
"In all criminal prosecutions, the accused shall enjoy the right..."

and so on. 

Are you going to tell me that the second amendment means that as long as there is a well-regulated state militia with arms, a state could completely disarm all the rest of its residents, and do so constitutionally?

Are you saying that before the 14th amendment, a state could search and seize anything it chose, or take property at will, and do so constitutionally? 

Or take habeas corpus. Could a state deny a person habeas corpus and do so constitutionally? (Hey, I guess the institution of slavery answers that question).

And the way the bill of rights reads, the clause "...nor prohibited by it to the states..." sure makes it sound as if the power to violate a persons rights was prohibited by constitution. 





> It wasn't just the federal court cases that decided that the Bill of Rights was not applicable to the states but the founders as well.   Which is why each state had their own constitution and their own bill of rights.   These  restrictions in the federal bill of rights were restrictions upon what the federal government can and can not do only.


Well, damn. Huh. I guess the 14th amendment is pretty handy after all.





> Immigration was restricted.. locally... many outside people were tossed out of town as vagrants.  But the Privileges and Immunity clause allows all member of the US union to freely reside within each state without having to be a citizen of that state.  You can be a citizen of the United States without being a citizen of the state in which you resided.


Well, damn. Chalk up another victory for freedom to the 14th amendment.




> And why do you need the federal government to enforce Article IV?  The states ratified the Constitution and as a member of any contract they must abide by the terms.


 And when they don't abide by the terms? For a while the federal government DID have to enforce the whole US constitution in the south after the civil war (rebellion, northern aggression, whatever anyone wants to call it) to protect the rights of the former slaves. 




> Many states refused to enforce the Fugitive slave law which was a violation of Article IV.  But the federal government didn't come in and force the states in breach to comply


Were there Supreme Court cases? (any famous ones?)

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## CJLauderdale4

Keep in mind...at the formation of the nation, the States were their own "nations" per se, each having their own Constitutions and executives. Each State had its own militia and treasuries. 

However, the same Founding Fathers who authored the Federal Constitution, also helped author their home State's State Constitution. So many of the Federal restrictions on basic human liberties were also State restrictions as well (free speech, bearing arms, etc.). However, one to note that wasn't as pervasive was the State church, with some States having a State church (some up through the early 1800's). Didn't mean you couldn't worship in other ways, just that the State was Baptist or Presbyterian.

Up to the time of the Civil War, Washington D.C.'s jurisdiction didn't apply to the States. D.C. handled the District, and Federal territories. States handled their own business. The U.S. Supreme Court did handle issues between States as well. This all worked well and good until...Washington attempted to execute actions in the States without permission from the States and that ARE NOT granted in the U.S. Constitution (build roads, raise tarrifs, etc.).

Without going into a Civil War discussion, the outcome of the war is what is the issue in this discussion. The 14th Amendment is one of those results, and it's this amendment that takes the jurisdiction away from the States and People, and places it in Washington D.C. It does this by making everyone a U.S. Citizen and giving all of them "equal protection".

Sure, this was great in some instances (attempting to protect liberties of slaves, making U.S. Constitutional laws trump some State Constitutions) - sort of putting all States on the same page in a way. 

Harmless, right??  Wrong! Just as a gun can be used in defense, it can also be used in offensive measures.

Couple the 14th Amendment with what follows in the next 50-100 years after its ratification:
- Income Tax Laws increase
- 16th Amendment
- Social Security Act
- Selective Service (isn't this paradoxical to the 13th Amendment??)
- Medicare

All of these programs and laws have had a direct impact on the People, who prior to the 14th Amendment, would not have applied, nor would the Federal Government had the jurisdiction to do so.

Also, the result of the war changed the Washington mindset as well. Prior to the Civil War, many statesman would consult the U.S. Constitution and the powers granted in the Articles before acting, to see if the act/law was Constitutional or not. After the war, and even today, Washington passes laws without any consultation of the Constitution, and if the People or States do not sue in court on grounds of unconstitutionality, the law will remain on the books. 

Ther burden was now placed on the People to stop the government, rather than the government placing the burden on itself to do only what is permitted.

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## demolama

> I know what they thought, but it what matters most is what the words say (this is my opinion and would have argued such had I been there at the time).


Ah you are one of those... it doesn't matter what the founders, the ratifying conventions and the people of the states understood when they wrote and comprehended the damn thing... I just want it to mean what I want for my own interpretation... please step up and join the "general welfare clause", the "Necessary-and-Proper Clause" and all the other implied powers interpretation that gave us the huge government we got today... its a bad ideology and sets up for more abuse.. even if you think you are doing the right thing by protecting the people in the states from the state... what you are really doing is binding the states to the federal government.




> Are you going to tell me that the second amendment means that as long as there is a well-regulated state militia with arms, a state could completely disarm all the rest of its residents, and do so constitutionally?


The federal constitution is binding only on what the federal government can and can not do... to have it binding on the states while the states have their own bill of rights in their constitution creates redundancy....  again since he federal constitution is binding only on what the federal government can do...what the states can and cant do doesn't matter... so asking if its constitutional is moot.




> Are you saying that before the 14th amendment, a state could search and seize anything it chose, or take property at will, and do so constitutionally?


Do you know anything about English common law?   It was well establish since 1215 that taking property without just compensation was against established law.




> Or take habeas corpus. Could a state deny a person habeas corpus and do so constitutionally? (Hey, I guess the institution of slavery answers that question).


again.. solidifying basic rights of Englishmen in written form was all the Bill of Rights did.... each state with their own constitution compounded upon these basic English common law rights so that the people were both protected from the state by their state constitutions and from the federal government with the federal constitution.  




> And the way the bill of rights reads, the clause "...nor prohibited by it to the states..." sure makes it sound as if the power to violate a persons rights was prohibited by constitution.


So by your reading...the states could abride the freedom of speech and of the press?  After all only Congress is restricted by the first amendment... assuming by your understanding the states are restricted by the federal constitution






> Well, damn. Chalk up another victory for freedom to the 14th amendment.


I'll take a federation over a consolidated nation any day.... consolidated nation: where the national government is the final arbitrator of its own power is what we have today.




> And when they don't abide by the terms? For a while the federal government DID 
> have to enforce the whole US constitution in the south after the civil war (rebellion, northern aggression, whatever anyone wants to call it) to protect the rights of the former slaves.


ah so you advocate violence as a mean to enforce your interpretation... again... no thank you to this type of consolidated nation... Thanks again for proving to me why a federation of independent states is far superior than a consolidated nation who's government will force compliance upon its members.





> Were there Supreme Court cases? (any famous ones?)


Prigg v Penn... while it set up federal supremacy... it couldn't force states to comply with the fugitive slave law... instead federal marshals had to come into the state to retain the run away slave.

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## Mesogen

> Up to the time of the Civil War, Washington D.C.'s jurisdiction didn't apply to the States. D.C. handled the District, and Federal territories. States handled their own business. The U.S. Supreme Court did handle issues between States as well. *This all worked well and good* until...Washington attempted to execute actions in the States without permission from the States and that ARE NOT granted in the U.S. Constitution (build roads, raise tarrifs, etc.).


No, it didn't work well. 

The constitution, as a contract among 'sovereign states', is piss poor. There are so many loopholes and ways to interpret it that you get what you get. Besides, the states signed on. They said "go ahead and 'regulate Commerce with foreign Nations, and among the several States.'" "Go ahead and 'establish Post Offices and Post Roads.'" So they got tariffs and federal roads. "Go ahead and do what's 'necessary and proper.'" So they get "etc." 

Tariffs and federal roads ARE authorized by the constitution. Some states just had buyer's remorse for getting themselves into this binding "contract." 




> Without going into a Civil War discussion, the outcome of the war is what is the issue in this discussion. The 14th Amendment is one of those results, and it's this amendment that takes the jurisdiction away from the States and People, and places it in Washington D.C. It does this by making everyone a U.S. Citizen and giving all of them "equal protection".


So you don't want equal protection under the Bill of Rights? You don't want all your privileges (civil rights) and immunities (natural rights) to be protected? 

As for 'taking jurisdiction,' hell yeah. It takes away jurisdiction/power of a state to violate a person's rights. I don't care where the seat of jurisdiction is as long as that power is protecting my rights. Once it starts violating them, I'll turn to another jurisdiction/power for help. I could attempt to be totally self sufficient in defense of my liberty, but I don't think I'd last too long. 




> Sure, this was great in some instances (attempting to protect liberties of slaves, making U.S. Constitutional laws trump some State Constitutions) - sort of putting all States on the same page in a way. 
> 
> Harmless, right??  Wrong! Just as a gun can be used in defense, it can also be used in offensive measures.
> 
> Couple the 14th Amendment with what follows in the next 50-100 years after its ratification:
> - Income Tax Laws increase
> - 16th Amendment
> - Social Security Act
> - Selective Service (isn't this paradoxical to the 13th Amendment??)
> - Medicare


The 16th amendment did not require the 14th amendment to be ratified. 
And you know who ratified the 16th amendment? 

THE STATES. THE PEOPLE. 

These things were coming regardless of the 14th amendment. 

The SS Act was deemed constitutional because it "promoted the general welfare" and was seen to be part of congress's general taxing power. 

And yes, Selective Service is in violation of the 13th amendment. It has dick to do with the 14th amendment. 




> All of these programs and laws have had a direct impact on the People, who prior to the 14th Amendment, would not have applied, nor would the Federal Government had the jurisdiction to do so.


Yes, the federal government would have had the power to do all these things with or without the 14th amendment, if THE STATES AND THE PEOPLE allow it. 




> Also, the result of the war changed the Washington mindset as well. Prior to the Civil War, many statesman would consult the U.S. Constitution and the powers granted in the Articles before acting, to see if the act/law was Constitutional or not. After the war, and even today, Washington passes laws without any consultation of the Constitution, and if the People or States do not sue in court on grounds of unconstitutionality, the law will remain on the books.


Ha ha, yeah. We all talk about the Federal Reserve being unconstitutional these days, right? Were the 1st and 2nd Banks of the United States constitutional? And these banks were a lot better (and were actual banks) that the Fed Res. 

Either the Federal Reserve is constitutional, or prior to the civil war Congress did not always act constitutionally.




> Ther burden was now placed on the People to stop the government, rather than the government placing the burden on itself to do only what is permitted.


The burden has always been on the people. The people have been and are dumb. 
They let the politicians get what they want because they listen to the empty promises of politicians. Always. The majority do anyway.

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## Mesogen

> Ah you are one of those... it doesn't matter what the founders, the ratifying conventions and the people of the states understood when they wrote and comprehended the damn thing...


I guess you're one of those too. You don't seem to care what the framers of the 14th amendment intended. 




> I just want it to mean what I want for my own interpretation... please step up and join the "general welfare clause", the "Necessary-and-Proper Clause" and all the other implied powers interpretation that gave us the huge government we got today... its a bad ideology and sets up for more abuse.. even if you think you are doing the right thing by protecting the people in the states from the state... what you are really doing is binding the states to the federal government.


This is what our precious founding fathers wrote into our precious constitution. They knew what they were doing. 

They knew they were setting up a national government with broad powers. 

That's why a lot of the language in the constitution is so vague. 




> The federal constitution is binding only on what the federal government can and can not do... to have it binding on the states while the states have their own bill of rights in their constitution creates redundancy....  again since he federal constitution is binding only on what the federal government can do...what the states can and cant do doesn't matter... so asking if its constitutional is moot.


The constitution most indeed does apply to the states. 
What the hell do you think Article IV is all about? 
It tells states what they can and can't do.
The constitution also tells the states what they can and can't do with their representatives in the federal government. 

So then, when amendments were made to the constitution, the wording could make it very clear that this section or clause applied directly to the states. Or, you could have wording as in the Bill of Rights that just said in effects "rights are not to be violated" (by anyone). 




> Do you know anything about English common law?   It was well establish since 1215 that taking property without just compensation was against established law.


Sorry, were we still part of England after the revolution?
Common law depends on precedence and new precedents can be set. 
A judge or a jury can do this damn near at will. 




> again.. solidifying basic rights of Englishmen in written form was all the Bill of Rights did.... each state with their own constitution compounded upon these basic English common law rights so that the people were both protected from the state by their state constitutions and from the federal government with the federal constitution.


Not everyone in America was an Englishman. After the revolution, none of them were. 
If the state constitutions guaranteed rights so well, then I guess there was no slavery. 




> So by your reading...the states could abride the freedom of speech and of the press?  After all only Congress is restricted by the first amendment... assuming by your understanding the states are restricted by the federal constitution


Yeah, that's why they worded it that way. To give leeway to states that wanted to have less than free speech or press. 

That's why the other amendments aren't worded that way. 

They didn't say "The right of the people to have free speech and the right of the press to be free shall not be infringed..." 

They got specific with it here. They explicitly said that "Congress shall make no law..."

Our precious founding fathers knew what they were doing. They also had to bow to certain pressures from certain states. 




> I'll take a federation over a consolidated nation any day.... consolidated nation: where the national government is the final arbitrator of its own power is what we have today.


The 14th amendment didn't "consolidate the power" of the federal government. The only power it did "consolidate" was the power to protect you from slavery and having your rights violated.




> ah so you advocate violence as a mean to enforce your interpretation... again... no thank you to this type of consolidated nation... Thanks again for proving to me why a federation of independent states is far superior than a consolidated nation who's government will force compliance upon its members.


I advocate violence in certain circumstances as a response to tyranny and oppression, yes. 




> Prigg v Penn... while it set up federal supremacy... it couldn't force states to comply with the fugitive slave law... instead federal marshals had to come into the state to retain the run away slave.


And you said that the federal government did NOT enforce the constitution. 

It looks like, at least in this case, before the civil war, they enforced the constitution.

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## Matt Collins

Except that it is my understanding that the 14th Amendment was not ratified in accordance with the Constitution. Read the below information from the book "The Politically Incorrect Guide to the Constitution"...

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## Peace&Freedom

> I guess you're one of those too. You don't seem to care what the framers of the 14th amendment intended... 
> 
> And you said that the federal government did NOT enforce the constitution. 
> 
> It looks like, at least in this case, before the civil war, they enforced the constitution.


Whatever the 14th's framers intended, the actual practical result of the amendment was a vast and systematic increase in central government power. To go from the 'Congress shall make no law' to one where the Bill of Rights is deemed to incorporate the states, requires a massive increase in federal enforcement powers (as it implies the federal must act as supreme enforcer). Much less government force is involved in the federal legislative branch not making laws, than with the feds being tasked with ensuring the states don't make such laws. The judicial incorporation doctrine stemming from the 14th has procedurally decimated liberty by its defacto causing the centralization of power needed to enforce it.

The creation of a statutory class of citizen (also stemming from the amendment) led to the presumption that citizenship was primarily or exclusively a creature of federal government, rather than as a natural born sovereign state national (the constitutional status of such persons prior to this point). This has led to all manner of conversion of rights into privileges by way of simply defining the citizen as a person who partakes in federal privileges---hence redefining all his/her downstream rights as privileges. It's the difference between the simplicity of "you have rights the government cannot take away" versus redefining 'you' to mean an entity that contractually already forfeited them from the start, so the government can take them away anyway.

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## demolama

> I guess you're one of those too. You don't seem to care what the framers of the 14th amendment intended.


  Yeah they intended to fix Dredd Scott by giving slaves citizenship and to keep the states from interfering with their rights.... they however never intended it to be used as a way to bind the rest of us to the federal government's "unlimited national authority"




> They knew they were setting up a national government with broad powers.


I guess someone forgot to tell the states who authorized the convention and the ratifying conventions themselves who were lead to believe it was just a stronger form of government then what they previously had under the Articles.  "A more perfect Union".





> The constitution most indeed does apply to the states. 
> What the hell do you think Article IV is all about? 
> It tells states what they can and can't do.


Article IV does nothing but tells the states as a part of the union they must treat other members not as foreign nations. That is really not can and can not do list.

Article 1 section 10 is more of the do and do not list...its a continuation of what part of their sovereignty they are delegating to the federal government... if sovereignty was relinquished by states to the new constitution and to the new government then they wouldn't have these power to begin with and article 1 section 10 would be a grant of power not a relinquish.




> No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
> 
> No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
> 
> No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.



thus why they wanted the 9th and 10th added to remind the federal government that anything not in the constitution is retained by the sovereign states... because the true power is retained by the creator.  





> Sorry, were we still part of England after the revolution?
> Common law depends on precedence and new precedents can be set. 
> A judge or a jury can do this damn near at will. 
> Not everyone in America was an Englishman. After the revolution, none of them were.


If you don't understand that these united states were British colonies and the majority of them were once British subjects who loved being British but hated King George... then there is nothing more I can say to you... hell even our government acknowledges the magna carta as a basis for our legal system which is why its in the national archives with the Declaration and the Constitution.





> If the state constitutions guaranteed rights so well, then I guess there was no slavery.


The federal Constitution  no more a libertarian document than anything else has been... hate to break it to you but there has never been one.




> Yeah, that's why they worded it that way. To give leeway to states that wanted to have less than free speech or press.


lol I'm sorry but lol... are you just trying to argue for the sake of arguing or do you really believe the bull$#@! you are spewing?  Now you are trying to justify the federal constitution giving the states the ability to violate rights? What kind of libertarian are you?  I thought you were all about the federal government protecting rights against the evil states?




> That's why the other amendments aren't worded that way.


they aren't worded that way because it was already understood to be restraining on the federal government and not the states... hell even Hamilton argued against the Bill of Rights in the federal constitution because "Why say Congress shall not.... when article 1 section 8 doesn't give them the right to violate the freedom of press to begin with."  Why would he oppose it if it was also to be applicable to the states?  Because he, like everyone else at the time understood that the Bill of Rights were only applicable to the federal government.





> They didn't say "The right of the people to have free speech and the right of the press to be free shall not be infringed..."


no but Madison's original wording did.... remember they were just putting these Bill of Rights into the Constitution itself.  This idea was rejected by the committee of style because they didn't want to besmirch the newly hallowed document (Constitution) with the signers.  They wanted to keep the document as is with the signers named permanently attached for posterity.   

Madison's Bill of Rights proposal at Congress.  http://www.usconstitution.net/madisonbor.html



> Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
> 
> The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
> 
> The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
> 
> The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
> 
> No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.
> ...



What is article 1 section 9? Why its the Limits on Congress.  As you can see that was the intent to limit the Congress only... the outcome was just a styling choice not a limit on both state and federal governments.

The only Article 1 section 10 proposal which limited the states was 


> Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
> 
> No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.


and it was shot down in Congress.




> The 14th amendment didn't "consolidate the power" of the federal government. The only power it did "consolidate" was the power to protect you from slavery and having your rights violated.


The 13th amendment protects me from slavery and the state constitution with their bill of rights protect me from the state violation of rights.  Its much easier for me to fight a state and local violation than a national one.




> I advocate violence in certain circumstances as a response to tyranny and oppression, yes.


 Violence is always a last resort. Yet to radicals its the only choice




> And you said that the federal government did NOT enforce the constitution.


with what authority and what force?  Madison in the federalist papers never dreamed of the federal government using regular troops against a state.




> It looks like, at least in this case, before the civil war, they enforced the constitution.


 Ya with the whopping 25 Federal Marshals they had at the time lol

Please read your history... and not the textbook kind.  You don't care what history shows... you've let it known all throughout this post.. it doesn't matter what I've shown that the founders wanted and understood when they created the damn thing... because history shows you the opposite of what your beliefs are.

----------


## Aratus

amendments 13,14 & 15 are thought to be in tandem 
yet an' if they be viewed stand-alone, tis a curious idea?

----------


## Mesogen

> Except that it is my understanding that the 14th Amendment was not ratified in accordance with the Constitution. Read the below information from the book "The Politically Incorrect Guide to the Constitution"...


I can see how West Virginia was unconstitutionally formed, but I don't see how Nevada was.

Unless you are saying that because 11 states had rejected the Constitution and rebelled in order to secede from the Union, that the remaining Congress could never admit new states. 

Now, when the 14th amendment was proposed, the Congress was in the same shape. 1/3 of the states had rejected the Constitution and weren't there to set it for ratification, so the the issue is thorny. 

But eventually, by 1868, 28 out of 37 states DID ratify it. And by today, I think all the states have ratified it. They could have all rejected it, saying that it hadn't been proposed properly, but they didn't.

If the 14th amendment were deemed invalid, would you support the 14th amendment (or similar wording) in a new amendment? IOW, I'm just curious if you support the wording of the 14th amendment, regardless of how it came to be.

Or, if you don't, how would you word it, or would you rescind it altogether?


Would you also argue that the proposal of the 13th amendment is also invalid? And that since it was ratified under military occupation, that it is also invalid?

----------


## Mesogen

> Much less government force is involved in the federal legislative branch not making laws, than with the feds being tasked with ensuring the states don't make such laws. The judicial incorporation doctrine stemming from the 14th has procedurally decimated liberty by its defacto causing the centralization of power needed to enforce it.


Decimated liberty? Good lord. 

State power =/= liberty. 

_How is it that we hear the loudest yelps for liberty among the drivers of Negroes? -Samuel Johnson_




> The creation of a statutory class of citizen (also stemming from the amendment) led to the presumption that citizenship was primarily or exclusively a creature of federal government, rather than as a natural born sovereign state national (the constitutional status of such persons prior to this point).


Who cares? You care about this? The 14th amendment says that you are a "citizen" of the state where you reside. It also says that you are a "citizen" of the whole country, whose liberty is worthy of protection by the federal government. 




> This has led to all manner of conversion of rights into privileges by way of simply defining the citizen as a person who partakes in federal privileges---hence redefining all his/her downstream rights as privileges. It's the difference between the simplicity of "you have rights the government cannot take away" versus redefining 'you' to mean an entity that contractually already forfeited them from the start, so the government can take them away anyway.


Rights into privileges? How did the 14th amendment do that? Where in the hell are you getting  this crap?

----------


## Mesogen

> Yeah they intended to fix Dredd Scott by giving slaves citizenship and to keep the states from interfering with their rights.... they however never intended it to be used as a way to bind the rest of us to the federal government's "unlimited national authority"


You put it in quotes, so I suppose the phrase "unlimited national authority" comes from something before this? If not, nobody supposes that the federal government has unlimited authority. Some people would love it to be so, but it's not so. 

The framers of the 14th amendment never intended to "bind" anyone and no one was bound by it. All the usurpation that came afterward would have happened without the 14th amendment. 




> I guess someone forgot to tell the states who authorized the convention and the ratifying conventions themselves who were lead to believe it was just a stronger form of government then what they previously had under the Articles.  "A more perfect Union".


Yup. They got duped.





> Article IV does nothing but tells the states as a part of the union they must treat other members not as foreign nations. That is really not can and can not do list.
> 
> Article 1 section 10 is more of the do and do not list...its a continuation of what part of their sovereignty they are delegating to the federal government... if sovereignty was relinquished by states to the new constitution and to the new government then they wouldn't have these power to begin with and article 1 section 10 would be a grant of power not a relinquish.


Article IV is more of a do list.
Article I, section 3 is a huge do not list. 
If you are a king (sovereign) and you abdicate the throne, you once had the power, and then you do not. You can't just say to the new king, "I'd like my power back now, thanks." 




> thus why they wanted the 9th and 10th added to remind the federal government that anything not in the constitution is retained by the sovereign states... because the true power is retained by the creator.


Sure. So why didn't the 10th amendment say "All sovereignty is retained by the States." Because all sovereignty was not retained by the states. They had permanently delegated those powers to the federal government. 





> The federal Constitution  no more a libertarian document than anything else has been... hate to break it to you but there has never been one.


Hey, now! I think we're getting down to it. 

But some documents (laws, constitutions) are more libertarian than others. The state constitutions of the antebellum south were NOT for freedom and enforced slavery. 

The 14th amendment made it to where the new state constitutions after the war had to recognize the human rights of everyone, even former slaves. 




> lol I'm sorry but lol... are you just trying to argue for the sake of arguing or do you really believe the bull$#@! you are spewing?  Now you are trying to justify the federal constitution giving the states the ability to violate rights? What kind of libertarian are you?  I thought you were all about the federal government protecting rights against the evil states?


Wow. Talk about spewing bull$#@!.

I never advocated it. I'm saying they did it.

Here is another part of the constitution that allowed states to violate rights:

_No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due._

I don't advocate that part either. But all you 'south will rise again' types seem to not have a problem with it. 





> Why would he oppose it if it was also to be applicable to the states?  Because he, like everyone else at the time understood that the Bill of Rights were only applicable to the federal government.


We've already been through this. I know what they intended (or what they said they intended), but they worded these things a certain way and, which left some of them open to further interpretation in the future. There is no other explanation for the differences in wording between the 1st amendment and all the others. 




> no but Madison's original wording did.... remember they were just putting these Bill of Rights into the Constitution itself.  This idea was rejected by the committee of style because they didn't want to besmirch the newly hallowed document (Constitution) with the signers.  They wanted to keep the document as is with the signers named permanently attached for posterity.   
> 
> Madison's Bill of Rights proposal at Congress.  http://www.usconstitution.net/madisonbor.html


Dammit, you're making my point for me.

The NEW and IMPROVED Bill of Rights that was eventually adopted was the result of COMPROMISE.

But read the original BOR and tell me that the states were allowed to violate any one of those things. Know what that means? That Bill of Rights applies to the states. The new and improved one did too. Except the first amendment, because it is explicit about to whom it applies. 

First you say that the BOR can't apply to the states because none of the constitution applies to the states. I say this is ludicrous, because there is a laundry list of things the states can and can't do in the constitution. 





> What is article 1 section 9? Why its the Limits on Congress.  As you can see that was the intent to limit the Congress only... the outcome was just a styling choice not a limit on both state and federal governments.
> 
> The only Article 1 section 10 proposal which limited the states was 
> and it was shot down in Congress.
> 
> 
> 
> 
> 
> ...


Uh, read section 10 again and tell me that it doesn't totally limit the actions of states. 

And thank you for again making my point for me. 

States didn't want restrictions on them when it came to speech and press and such. That's why when the NEW and IMPROVED BOR came around, the 1st amendment had clearly different language than as originally proposed by Madison, as well as different language than all the rest of the amendments. 




> with what authority and what force?  Madison in the federalist papers never dreamed of the federal government using regular troops against a state.


FTFC:
_Treason against the United States, shall consist only in levying War against them...

The Congress shall have power to declare the Punishment of Treason..._

If the punishment for treason is the declaration of war upon the traitors, then Congress has the authority to do so as per the constitution.




> Please read your history... and not the textbook kind.  You don't care what history shows... you've let it known all throughout this post.. it doesn't matter what I've shown that the founders wanted and understood when they created the damn thing... because history shows you the opposite of what your beliefs are.


I only wonder at the type of "history" you've been reading.

----------


## demolama

ok.. lets play the word game.. since that's all you care about

What does congress mean?   why did they use congress to name the body of men in the legislature of the new federal government?  Why not parliament?  After all assuming the federal government was now the sovereign as you claim then a parliament like that of Great Britain would have been the correct choice of words.  But instead they used Congress like the continental congress, the Congress under the Articles, the Congress to create the federal constitution.  All the previous congress's authority came only from the sovereign creator. Were the delegates to out step their delegated authority their state would have recalled their representatives. 




> No word could have been selected with equal felicity, to convey the idea contemplated by a federal system. It avoided the implications which the usual words parliament or assembly might have furnished, and demonstrated that a body of men invested with powers equivalent to those exercised by such denominations, was not intended to be established. And it intimated the independence of the several states as being similar to the independence of the several provinces of each other, as well as to that of distinct kingdoms. The assemblage of men which framed the constitution, was called "A convention of deputies from the states of New-Hampshire, Massachusetts, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia." By what authority did the states appoint these deputies, if not in virtue of their respective sovereignties, existing in common with a "Congress of the United States?" If a Congress did not destroy the sovereignties of the states at that time, is it reasonable to suppose that the present "Congress of the United States" was constituted to destroy them? The deputies of the states in the convention, though representatives, could not have enacted a constitution, because it would have violated the limited powers which they received from state sovereignties; and in like manner, the deputies of the states now composing a Congress, though representatives, cannot exceed their powers. It is upon this principle, that Congress cannot alter the terms of the union.


 John Taylor, New Views of the Constitution pg 6.

Lets look at the Articles of Confederation.  The Articles created a perpetual union; yet, the federal Constitution does not use the word perpetual at all.  So if the union was meant to be perpetual then they would have said so correct?  (by your readings).  So forcing the Confederate states who recanted the signing of the federal Constitution should be considered an illegal war on a foreign nation without a declaration and their providence for protecting human rights had no weight.  

Where did the word federal come in.... and why do we call the government in DC a federal government when according to your understanding the founders set up a national government?  Federal and National are not the same.  Federal implies  a league between sovereign nations, has been so used by all classes of people from the commencement of our political existence down to this day, and is inapplicable to a nation consolidated under one sovereignty,

Why choose the name the United States of America?  because its interpretation is these states(nations) are united on the continent of America.  If consolidation was created by the federal constitution a name would reflect as such.

Why would they use the word state of the union?  and not state of the nation?




> The establishment of state governments, demonstrates the existence of state nations. No act can ascertain the existence of a sovereign and independent community more completely, than the creation of a government; nor any fact more completely prove that these communities were each constituted of a distinct people, than that of their having established different forms of government. If the art of construction shall acquire the power both of dispensing with the meaning of words, and also with the most conclusive current of facts by which these words have been interpreted, it will be able, like the dispensing power of kings, to subvert any principles, however necessary to secure human happiness, and to break every ligament for tying down power to its good behaviour.


John Taylor, New Views of the Constitution pg.8




> Sure. So why didn't the 10th amendment say "All sovereignty is retained by the States." Because all sovereignty was not retained by the states. They had permanently delegated those powers to the federal government.


It was stated by the previous contract to be retained and it was assume to continue after this one... the sovereign states seceded from Great Britain separately and were acknowledged by the Declaration as such, they were acknowledge by the Treaty of Paris as separate and independent states, they were acknowledged by the Articles of Confederation as sovereign independent nations and they seceded from the former confederation by an act only sovereign nations can do.....  after all this you still say that the new federal constitution just created a nation and not a more perfect union? As shown before the use of the same words such as Congress and union were continued and thus were understood the type of government that was created.... a federal not national




> I don't advocate that part either. But all you 'south will rise again' types seem to not have a problem with it.


  Funny.. I was raised in the north and educated in the north and I hate the confederacy.. they actually changed nothing by creating their new government... the US Constitution at least didn't forbade the notion of getting rid of slavery.. the Confederate did.  The Confed's did conscription and other things that were horrible against the people's rights... nice try though I'm no neo-confed




> If the punishment for treason is the declaration of war upon the traitors, then Congress has the authority to do so as per the constitution.


 except there was no declaration of war





> I only wonder at the type of "history" you've been reading.


  I've shown you my history.. I've shown you that they are primary sources from the people who were there at the time of its creation... you however refuse to acknowledge their understanding and thus refusing to acknowledge history... repeatedly

----------


## Mesogen

> ok.. lets play the word game.. since that's all you care about
> 
> What does congress mean?   why did they use congress to name the body of men in the legislature of the new federal government?  Why not parliament?  After all assuming the federal government was now the sovereign as you claim then a parliament like that of Great Britain would have been the correct choice of words.  But instead they used Congress like the continental congress, the Congress under the Articles, the Congress to create the federal constitution.  All the previous congress's authority came only from the sovereign creator. Were the delegates to out step their delegated authority their state would have recalled their representatives.


Well, you seem to be so worried about the state being sovereign. I'm not saying the federal government is or was sovereign (but the constitution does say that it is the supreme law of the land). I'm saying that the states were NOT sovereign. They could pretend they were as long as they wanted to, but when it came down to it, they weren't. 

So the states sent their delegates to the Congress to form a constitution, a contract. In that contract, they permanently delegated their sovereignty. 

If you and I sign a contract where you give me the keys to your house and in the contract you agree that I have the sole authority on who visits the house and how the house is run, you can call yourself "head of the household" all you want, but you are not the real head. You delegated that to me. If the contract is perpetual then the delegation is more like an abdication and the only way to become head of the household again is to break the contract. 






> Lets look at the Articles of Confederation.  The Articles created a perpetual union;


And everyone agreed to end that contract.




> yet, the federal Constitution does not use the word perpetual at all.  So if the union was meant to be perpetual then they would have said so correct?  (by your readings).


If they didn't want it to be perpetual, they would have said so, right? If they wanted the power of secession, they would have put that in right? 

The resulting document was a compromise between those that wanted a perpetual union and those who wanted a legal option of secession at a later date.

They left all talk of perpetual union or secession out of the document and hoped for the best. 

Lots of people had their opinion one way or the other. Hell, James Buchanan was trying to quell the South by telling them that the Union was intended to be perpetual but then he also said that Congress had no power to make a state stay in the Union. What a waffler.

Lincoln said that no state had the explicit power to secede. 

Can we look to the text of the Constitution to see who was right? Nope.




> So forcing the Confederate states who recanted the signing of the federal Constitution should be considered an illegal war on a foreign nation without a declaration and their providence for protecting human rights had no weight.


Ha. Legal war. Illegal war. What a stupid concept. 

The Union could have taken it, and DID take it, as Treason against the United States when the Confederate cabinet decided to and attacked Ft. Sumter.  

Tensions were high at the time and violence might have been sparked by either side, but never forget who fired first. 

There was no legal recourse for secession and the contract would have to have been broken, which doesn't require violence, but when Ft. Sumter was attacked by "treasonous rebels" what do you expect the US government to do? 

They would not recognize the Confederacy as a legal government and by their legal reasoning did not have to.

I'm not arguing what they should have done. I'm merely pointing out what was done and why they did it at the time.




> Where did the word federal come in.... and why do we call the government in DC a federal government when according to your understanding the founders set up a national government?  Federal and National are not the same.  Federal implies  a league between sovereign nations, has been so used by all classes of people from the commencement of our political existence down to this day, and is inapplicable to a nation consolidated under one sovereignty


Since we are playing word games... The definition of federal, let me show you it.

http://www.answers.com/federal

_federal 
1. Of, relating to, or being a form of government in which a union of states recognizes the sovereignty of a central authority while retaining certain residual powers of government.
2. Of or constituting a form of government in which sovereign power is divided between a central authority and a number of constituent political units._

Which is different from a confederacy.

_confederacy
1. A union of persons, parties, or states; a league.
2. The persons, parties, or states joined in such a union._


The Articles of Confederacy set up a union. The Constitution set up a federal nation.





> Why choose the name the United States of America?  because its interpretation is these states(nations) are united on the continent of America.  If consolidation was created by the federal constitution a name would reflect as such.
> 
> Why would they use the word state of the union?  and not state of the nation?


It is still a union. A more perfect union than a confederacy. By perfect they don't mean without flaw, they mean complete. A federation is more complete than a confederacy. 

Let's look at some other examples. 

Do you know the full name of Mexico? Estados Unidos Mexicanos. The United Mexican States. It is a federal constitutional republic. Are the states of Mexico sovereign national governments? $#@! no. 

How about the Russian Federation? It is a federal republic. Are the 83 federal subjects of Russia independent sovereign nations? Hell no.

India is a federal republic composed of states. It has a parliament like England. The states have their own legislatures. Are they sovereign nations. No way. 

On and on....




> It was stated by the previous contract to be retained and it was assume to continue after this one... after all this new federal constitution just created a more perfect union not a nation... as shown before the use of the same words such as Congress and union were continued and thus were understood the type of government that was created.


The previous contract was null and void. And you know what assuming does. The federal constitution formed a more perfect union, a nation. 

You can assume you are the head of the household all you want, but that's not what the contract that you singed says.




> Funny.. I was raised in the north and educated in the north and I hate the confederacy.. they actually changed nothing by creating their new government... the US Constitution at least didn't forbade the notion of getting rid of slavery.. the Confederate did.  The Confed's did conscription and other things that were horrible against the people's rights... nice try though I'm no neo-confed


So you agree that the confederacy was $#@! and yet you defend their "rights" to form a government that would enslave half their population. 

Ever take a look at the constitution of the CSA? It was stupid. It was damned near verbatim to the US constitution except it added provisions that protected slave ownership. Besides a thing or two about tariffs, that was about it. In the preamble it mentioned state sovereignty but then it kept the supremacy clause and said that it created a federal union. So stupid. They wanted just as strong a central government as the United States, they just wanted to keep slavery.




> except there was no declaration of war


Hmm. I'm looking at some pages that say Congress declared war on April 14, 1861, but then most other sources say there was no formal declaration of war. I think Congress was out of session at the time of the first battles between the state militias. 

Anyway, I'm not sure you need to formally declare a war for the military to put down an insurrection or rebellion.





> I've shown you my history.. I've shown you that they are primary sources from the people who were there at the time of its creation... you however refuse to acknowledge their understanding and thus refusing to acknowledge history... repeatedly


I didn't mean that you hadn't read lots of books or seen the opinions of people who wanted to preserve state power and sovereignty in order to perpetuate the institution of slavery. I'm saying that perhaps the history you've read is maybe a bit biased.

----------


## demolama

> So the states sent their delegates to the Congress to form a constitution, a contract. In that contract, they permanently delegated their sovereignty.


 you cant delegate sovereignty.. either you have it or you don't




> If you and I sign a contract where you give me the keys to your house and in the contract you agree that I have the sole authority on who visits the house and how the house is run, you can call yourself "head of the household" all you want, but you are not the real head. You delegated that to me. If the contract is perpetual then the delegation is more like an abdication and the only way to become head of the household again is to break the contract.


delegated is the word... sovereign states delegate their powers.. but the delegation of power is still theirs to give... meaning they can take it back anytime... they took back the power after the Articles were a failure.

As owner I certainly have the right revoke the conditions of the contract and take back the keys because I'm the original owner.  

The problem with you scenario is that after I take back the keys.. you still exist.  You may not have the keys or the house but you still live.  In the Constitutional world...the states revoke the powers of the federal government.. the federal government ceases to exist 





> And everyone agreed to end that contract.


actually that's not true... RI and NC refused to sign the Constitution... they were left behind when the other states signed the new constitution.  They were still out after George Washington was already sworn in as president.  It wasn't until the Bill of Rights were added did they reluctantly agreed to join.... they didn't have a choice since they knew they couldn't survive alone with such a huge union surrounding them.





> They left all talk of perpetual union or secession out of the document and hoped for the best.


they left perpetual out because it was rejected at the federal convention... read Yate's notes and they didn't add sovereignty because the states already had it... there is nothing in the Constitution that moves the power of sovereignty from the states to the federal government.  There is however that pesky 10th amendment stating that powers not delegated the the central authority was retained by the people or the states... the right of secession was not delegated to the central authority so therefore one must assume its retained with the states. 

The Supremecy clause: The truth is that the language in the Constitution about it being "the supreme law of the land" only applies to the seventeen specific powers enumerated to the central government in Article I, Section 8. Nothing more. The states remain the ultimate sovereigns by the Constitution. "The constitutional laws of the states are equally supreme with those of the federal government" pg 79 John Taylor New Views of the Constitution of the United States




> Lots of people had their opinion one way or the other. Hell, James Buchanan was trying to quell the South by telling them that the Union was intended to be perpetual but then he also said that Congress had no power to make a state stay in the Union. What a waffler.


Thats not waffling.. that upholding precedents that no federal branch is stronger than the other and that the federal government can not force its will on the states because that would be like the Supreme court forcing Congress to pass laws... you cant force equal members of the pact.




> Lincoln said that no state had the explicit power to secede.


at the expense of precedence and at the cost of millions of lives... something I would not be proud of.  Madison didn't try and stop the New England state from attempting secession in 1814... no one questioned their ability to do so.




> Can we look to the text of the Constitution to see who was right? Nope.


no but we can look at notes from the convention, the state ratifying conventions and the founders themselves... which you routinely ignore.




> Ha. Legal war. Illegal war. What a stupid concept.


not according to the laws of nations which all nations agreed to abide by




> There was no legal recourse for secession and the contract would have to have been broken, which doesn't require violence, but when Ft. Sumter was attacked by "treasonous rebels" what do you expect the US government to do?


ah yes those "treasonous rebels" who sent peaceful envoys to Lincoln who were constantly turned away, who had Napoleon offer to be the negotiator, who offered to buy all federal land, who told Lincoln not to supply the fort but ignored them anyway.  It was the states that were sending envoys... not always the Confederate government.  It was his choice to ignore peace.  Yeah Lincoln didn't see it coming  

Secession has had a legal precedence since the Glorious Revolution.  What right did the people of England have to replace James II with William and Mary? The Jacobites at the time said they had no right but the people of England did it anyway.  By your understanding they had no right because their king was sovereign and you can not throw off the head of power... but without the Glorious revolution...none of the founders would have dared asked the question... "should we secede... do we have the right to throw off one government for another that best suits us?"






> They would not recognize the Confederacy as a legal government and by their legal reasoning did not have to.


So you are saying they didn't have to recognize the state governments? the same ones that were always there... the same ones that sent senators to the US senate? There was no uprising.. there was no overthrowing of state governments... there was no rebellion or insurrection against the state governments... so Lincoln's bull$#@! excuse to invade to protect in every state of the union with a republican form of government was full of it... since nothing had changed within the states.





> Since we are playing word games... The definition of federal, let me show you it.
> 
> http://www.answers.com/federal
> 
> _federal 
> 1. Of, relating to, or being a form of government in which a union of states recognizes the sovereignty of a central authority while retaining certain residual powers of government.
> 2. Of or constituting a form of government in which sovereign power is divided between a central authority and a number of constituent political units._
> 
> Which is different from a confederacy.
> ...


Confederation was a weak central government with strong states.... a federation is a where the power is shared equally between the central and the states.

I'm quite aware of the definitions... however what you are advocating is neither these forms of government... you are advocating federal supremacy... or a national government





> It is still a union. A more perfect union than a confederacy. By perfect they don't mean without flaw, they mean complete. A federation is more complete than a confederacy. 
> 
> Let's look at some other examples. 
> 
> Do you know the full name of Mexico? Estados Unidos Mexicanos. The United Mexican States. It is a federal constitutional republic. Are the states of Mexico sovereign national governments? $#@! no. 
> 
> How about the Russian Federation? It is a federal republic. Are the 83 federal subjects of Russia independent sovereign nations? Hell no.
> 
> India is a federal republic composed of states. It has a parliament like England. The states have their own legislatures. Are they sovereign nations. No way. 
> ...


and how many of those "states" were sovereign before-hand? none... just because someone uses a term in today's society doesn't mean it has the same weight it did in 1789.  State and nation were equal in 1789... today they are not.. you have to use nation-state in order to differentiate between a nation and a providence which they wrongly term as a state.

All your examples are/were providences of a bigger nation and were not ever sovereign states

Just because a country is called a communist country doesn't make it so... there has never been a communist country in the history of the world.




> So you agree that the confederacy was $#@! and yet you defend their "rights" to form a government that would enslave half their population.


No I defend the English right of rebellion and ultimately the right to secede.  Do you acknowledge that by your definition the American Colonies had no right to either rebel nor secede from the British Empire?  




> Ever take a look at the constitution of the CSA? It was stupid. It was damned near verbatim to the US constitution except it added provisions that protected slave ownership. Besides a thing or two about tariffs, that was about it. In the preamble it mentioned state sovereignty but then it kept the supremacy clause and said that it created a federal union. So stupid. They wanted just as strong a central government as the United States, they just wanted to keep slavery.


Ever stop to think the reasoning behind they decision to use the US constitution minus some changes?  They saw the abuses being used by certain clauses out of context mainly those under the delegation of power to Congress under article 1 section 8.




> I didn't mean that you hadn't read lots of books or seen the opinions of people who wanted to preserve state power and sovereignty in order to perpetuate the institution of slavery. I'm saying that perhaps the history you've read is maybe a bit biased.


I have not yet.. nor have I ever in this post quoted anyone who wanted to preserve both state power and slavery.  All my quotes are from the founding generation who had nothing to do with the Civil war nor the CSA's intent.
The founding generation wanted slavery to die off they just didn't see how they could do it.. nor did they ever think the cotton gin would keep it flourishing longer than they thought it would have.

You with your general hatred towards state rights because of the states that abused the rights of its people refuse to see any of the good things that came from interposition and nullification by state governments and think that the federal government should be the final protector of everyone... in essence you want a national government with state administrative bodies that do what the national government wants... 

and you still didn't address the reason why they chose the word Congress and not parliament or assembly if what they created was federal supremacy or a national government.

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## Scofield

http://www.originalintent.org/edu/do...0Clarified.pdf

Must read for anyone interested in the 14th Amendment.

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## Mesogen

> you cant delegate sovereignty.. either you have it or you don't


Ok, they abdicated it.




> delegated is the word... sovereign states delegate their powers.. but the delegation of power is still theirs to give... meaning they can take it back anytime... they took back the power after the Articles were a failure.


When all parties agreed to dissolve the contract.




> As owner I certainly have the right revoke the conditions of the contract and take back the keys because I'm the original owner.


So when you sign over the title to your house, and someone else moves in, you can just move back in and kick out the new owner just because you USED TO live there? 

The states signed over title to their house with an agreement that they could still decide what kind of grass goes in the yard. 




> The problem with you scenario is that after I take back the keys.. you still exist.  You may not have the keys or the house but you still live.  In the Constitutional world...the states revoke the powers of the federal government.. the federal government ceases to exist


You can't _legally_ take back the keys. You could do so by force and kick me out. (Kick me out of federal bases, if you will.) But, legally, I have claim to my federal bases. 





> actually that's not true... RI and NC refused to sign the Constitution... they were left behind when the other states signed the new constitution.  They were still out after George Washington was already sworn in as president.  It wasn't until the Bill of Rights were added did they reluctantly agreed to join.... they didn't have a choice since they knew they couldn't survive alone with such a huge union surrounding them.


So, EVENTUALLY, everyone agreed to the contract.



> they left perpetual out because it was rejected at the federal convention...


What the hell did I say? 

They left it out. It was rejected. It's the same thing.




> read Yate's notes and they didn't add sovereignty because the states already had it... there is nothing in the Constitution that moves the power of sovereignty from the states to the federal government.  There is however that pesky 10th amendment stating that powers not delegated the the central authority was retained by the people or the states... the right of secession was not delegated to the central authority so therefore one must assume its retained with the states.


The power that the states gave up is listed plainly in Article 1, Sec. 10

"_No State shall enter into any Treaty, Alliance, or Confederation_"

The states "delegated" (abdicated, really) that power. When some of the southern states did this in 1860-61, they were in violation of the Constitution. 





> The Supremecy clause: The truth is that the language in the Constitution about it being "the supreme law of the land" only applies to the seventeen specific powers enumerated to the central government in Article I, Section 8. Nothing more.


Those powers are the powers of Congress, not of the entire federal government. 





> The states remain the ultimate sovereigns by the Constitution. "The constitutional laws of the states are equally supreme with those of the federal government" pg 79 John Taylor *New Views* of the Constitution of the United States


Which is not true. 





> Thats not waffling.. that upholding precedents that no federal branch is stronger than the other and that the federal government can not force its will on the states because that would be like the Supreme court forcing Congress to pass laws... you cant force equal members of the pact.


So you agree with James Buchanan that states cannot legally secede? 





> at the expense of precedence and at the cost of millions of lives... something I would not be proud of.  Madison didn't try and stop the New England state from attempting secession in 1814... no one questioned their ability to do so.


Yeah. People in power get pissy when things don't go their way. The Hartford Convention is a prime example of that. And threats of secession around that time were more like rumors and idle threats. If they took measures to actually secede, who knows what would have happened. 





> no but we can look at notes from the convention, the state ratifying conventions and the founders themselves... which you routinely ignore.


THESE ARE NOT THE LAW. 




> not according to the laws of nations which all nations agreed to abide by


It's still a stupid concept. 





> ah yes those "treasonous rebels" who sent peaceful envoys to Lincoln who were constantly turned away, who had Napoleon offer to be the negotiator, who offered to buy all federal land, who told Lincoln not to supply the fort but ignored them anyway.  It was the states that were sending envoys... not always the Confederate government.  It was his choice to ignore peace.  Yeah Lincoln didn't see it coming


They sent envoys to talk about buying back the federal lands and bases. The US government said "no thanks, we'll keep our bases." The South said, "You're gonna give us these bases one way or another since they are on our land." 

When the South asked the North not to resupply the federal bases, why would the North listen to them? That would be stupid from their standpoint. It would be utter capitulation and there would be no way to keep the country together after that. It's like the South sending a peaceful envoy to ask Lincoln pretty please will the North surrender all it's bases in the South. 

South: "GTFO"
North: "No"
South: "Bang Bang"
North: "Bang Bang"




> Secession has had a legal precedence since the Glorious Revolution.  What right did the people of England have to replace James II with William and Mary? The Jacobites at the time said they had no right but the people of England did it anyway.  By your understanding they had no right because their king was sovereign and you can not throw off the head of power... but without the Glorious revolution...none of the founders would have dared asked the question... "should we secede... do we have the right to throw off one government for another that best suits us?"


There is a difference between a right and a power (in real life not really, since rights are an illusion and power is not, but that's another discussion.) 

The people had the power to throw off a government, but they didn't have the legal backing to do so. 

The South had the power to rebel and attempt to throw off the government based in Washington, but when they did so, they broke the law. 

I know that's what we've been arguing about. You say it was legal. I say, according to the letter of the law, it wasn't. But so what, right? 

The South thought they had the power to secede. At first, it seemed like they did. Eventually, it was proven that they did not.




> So you are saying they didn't have to recognize the state governments? the same ones that were always there... the same ones that sent senators to the US senate? There was no uprising.. there was no overthrowing of state governments... there was no rebellion or insurrection against the state governments... so Lincoln's bull$#@! excuse to invade to protect in every state of the union with a republican form of government was full of it... since nothing had changed within the states.


O, so you're saying that the state governments of the south wanted to be recognized within the central government of the United States? 

I'm sure if any one of the state governments of the South came to Washington, DC and said, hey we want to stop violating the constitution (Article 1, Sec. 10) and be part of the US government again, the other states would have allowed it in one way or another. 

And you keep saying Lincoln this and Lincoln that. Don't forget that the remaining Congress at the time was littered with Radical Republicans who were far beyond Lincoln in any pro-Union fervor. Lincoln wasn't some hardliner, believe it or not. He was, though, under a $#@!load of pressure from all sides. 




> Confederation was a weak central government with strong states.... a federation is a where the power is shared equally between the central and the states.
> 
> I'm quite aware of the definitions... however what you are advocating is neither these forms of government... you are advocating federal supremacy... or a national government


Maybe you're arguing with the wrong person.
I'm not advocating central supremacy at all. 

The whole premise of the OP was that the 14th amendment was intended to promulgate the protection by the federal government of freedom from oppression.

If a government aims to protect my freedom, then I'm not too concerned about its location. Whether it comes from city hall, the state capital, or the national capital.

If a government aims to infringe on my freedom, then no matter where it's located, I'll look to some other source that could alleviate that infringement. 

I'm not too concerned, personally, about states rights (unless the states rights involve protecting freedom) or federal supremacy (unless the federal supremacy involves protecting my freedom). I just want as much freedom for as many people as possible.



> and how many of those "states" were sovereign before-hand? none... just because someone uses a term in today's society doesn't mean it has the same weight it did in 1789.  State and nation were equal in 1789... today they are not.. you have to use nation-state in order to differentiate between a nation and a providence which they wrongly term as a state.


State can mean either these days. A state can be independent or part of a federal union.

France is a state. England is a state. 

Why is everyone so concerned about "losing their sovereignty" in the EU? Because if the EU ever becomes more than a confederacy and becomes a federal union, the states involved will no longer have much of their sovereignty. They will give up much of their sovereignty. That is why so many people are concerned. 

Why are so many people in the US so concerned about the NAU? "We want to retain our sovereignty." Why would joining together in a federal union threaten a state's sovereignty if they never lose it? The truth is that they lose it. 

Now, maybe some of these states will be more lucky than their American state counterparts and be able to put a provision into their constitution that explicitly outlines a procedure for secession. 




> All your examples are/were provences of a bigger nation and were not ever sovereign states


Bull$#@!. India wasn't a unified nation in the 17th century when the British began to colonize it. It had been (sort of) in the past in one incarnation or another (it's a very old country). The British attempted to unify it and came pretty close. It sort of unified into a federal republic after the British left, but a few places, they realized, would never be part of India. You might know them better as Pakistan and Bangladesh. (Well, Bangladesh is the result of, he he, secession from Pakistan.) (my gf is a big George Harrison fan, so I learned about why the hell he gave a $#@! about Bangladesh, it's because in 1971 they were having their war for independence, or secession, or whatever.)

Some parts of the Russian federation sure as hell were independent at one point or another in history and keep their old boundaries. Some are more independent than others. 

Mexico is a weird case because most of the country was so disorganized back then that you can't really say that the central government was ever really that powerful back then. I mean, there was a constitution and a central government, sort of, but most people in the country, especially in certain parts, just didn't recognize it at first and then after a while didn't care because the central government wasn't very powerful.      




> No I defend the English right of rebellion and ultimately the right to secede.  Do you acknowledge that by your definition the American Colonies had no right to either rebel nor secede from the British Empire?


So no matter what the reason is, if someone wants to secede, you support them?

If I form an army and we successfully claim independence and form a nation in south Texas or somewhere, basically so we can preserve our right to sacrifice virgins and eat babies all day long, you'd cheer us on? Hoorah for secession and independence. They finally have their rights and don't have to be oppressed by that evil central government that won't let them eat babies. 




> Ever stop to think the reasoning behind they decision to use the US constitution minus some changes?  They saw the abuses being used by certain clauses out of context mainly those under the delegation of power to Congress under article 1 section 8.


The changes were to preserve slavery. 




> The founding generation wanted slavery to die off they just didn't see how they could do it.. nor did they ever think the cotton gin would keep it flourishing longer than they thought it would have.


But the generation after them did. They knew if they could admit more free states and keep out more slave states, then eventually the free states would be 3/4 of the total. Enough for a constitutional amendment ending slavery. 

Why do you think there were so many fights coming from the South to admit more slave states? Did they want competition? No, they wanted support against any proposals for constitutional amendments ending slavery.





> You with your general hatred towards state rights because of the states that abused the rights of its people refuse to see any of the good things that came from interposition and nullification by state governments and think that the federal government should be the final protector of everyone... in essence you want a national government with state administrative bodies that do what the national government wants...


Nope. Like I said, if a state's "rights" protect freedom I'm for them. If they violate freedom I'm against them. But I'm not going to argue simply for the principle of state's rights. States have powers. Some powers I want them to have, some I don't. So I'm never going to argue that a state should be able to have whatever power it wants. I want that power limited somehow.

Same goes for the federal government. Some powers I want it to have. Other powers I don't want it to have. But I'm never going to argue to completely decimate the federal government or to completely empower it. At this moment in time it has too much power, generally speaking. But I think completely getting rid of it would be idiotic.




> and you still didn't address the reason why they chose the word Congress and not parliament or assembly if what they created was federal supremacy or a national government.


Oh, you need me to address this? 

A parliament works totally differently than the system they set up. The Westminster system, for example, is organized very differently than the a government with divided powers and it operates very differently. The parliamentary system relies on political parties and groups and the "government" in power just happens to be the one with the majority in parliament.

So the Congress is not a parliament because it is a completely separate power from the executive. 

It's called "Congress" because they just kept the name they gave it under the Revolution and the Articles of Confederation.

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## demolama

I'm done.. can't argue with someone who refuses to acknowledge basic English common law as the basis for what type of government we created.  

You refuse to refute history with history.. to do so shows you wrong... so you make up some bull$#@! and say the intent or understanding at the time they created the federal constitution doesn't matter.  All that matter is you what you want it to mean.  You want it to be obscure so that you can interpret it any way you like.  $#@! looking at history to show what they really meant when they said "to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; "  Of course it means paper money right?  its so obscure.. I'm not sure what they meant... poof grats you got inflation... poof you got worthless paper as money.





> The whole premise of the OP was that the 14th amendment was intended to promulgate the protection by the federal government of freedom from oppression.
> 
> If a government aims to protect my freedom, then I'm not too concerned about its location. Whether it comes from city hall, the state capital, or the national capital.
> 
> If a government aims to infringe on my freedom, then no matter where it's located, I'll look to some other source that could alleviate that infringement.


typical libertarian response... $#@! rule of law... $#@! separation of powers..... if I'm being oppressed it doesn't matter if China comes in to save me from the bad government types and their oppression.  World government come save me from the evil bad nation!

Don't you know its easier to change a state or local law than it is to change a national law?  There is more freedom when government is small and governs less people than government that spreed through different culture and attempts to pass blanket laws to appease everyone.




> I'm not advocating central supremacy at all.


but you are... by bypassing the separation of power and giving the federal government total control over review of all rights... you are opening them up to controlling.. the economy, education, health care, etc.  all in the name of protecting the "rights" of the people.  Thus again proving what the outcome of the 14th amendment has done.


Ever wondered why no one has come to this post to back up your opinion?  because its wrong and everyone has repeatedly told you so

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## Mesogen

> I'm done.. can't argue with someone who refuses to acknowledge basic English common law as the basis for what type of government we created.  
> 
> You refuse to refute history with history.. to do so shows you wrong... so you make up some bull$#@! and say the intent or understanding at the time they created the federal constitution doesn't matter.  All that matter is you what you want it to mean.  You want it to be obscure so that you can interpret it any way you like.  $#@! looking at history to show what they really meant when they said "to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; "  Of course it means paper money right?  its so obscure.. I'm not sure what they meant... poof grats you got inflation... poof you got worthless paper as money.


There are differences among these things:

1. What the law says
2. What someone originally intended it to mean
3. What the judge or jury now wants it to mean

If I need to use a law for some reason, I like to go by #1. Sure, you could argue in court that #2 is important and maybe a judge will agree with you. You could argue all sorts of things, but the judge may end up going with #3 anyway, which seems to be par for the course. 

Now, you could argue that by picking #1, I'm really picking #3 because what the law says is up to interpretation. Fine. But by going with #2, you also can fall into that trap. Maybe not as easily, because there are more words in an explanation of the law than there are in the law itself (in the case of the constitution, especially). 

I think that may be the problem that a lot of those who framed and ratified the constitution and all the amendments. The framers might have originally intended something. The ratifiers might have read something else into it. But, what we ultimately have to go by is the letter of the law. What are the words that these people put on paper, signed their name to it, put a stamp on it, and called it law? 

I keep coming back to the analogy of a contract. If some housing contractor wants you to sign the contract that he drafted, he might tell you certain things in certain terms to convince you that the contract means certain things. You might read it thoroughly and determine that it does mean those certain things (for the most part  ). Well, one day you end up suing the contractor and end up in court. You say "Your honor, he said that the contract I signed meant this and that." And the contractor says, "But your honor, what I meant was who and what." The judge says, "I know how to settle this. I'll look at what the contract actually says." 





> typical libertarian response... $#@! rule of law... $#@! separation of powers..... if I'm being oppressed it doesn't matter if China comes in to save me from the bad government types and their oppression.  World government come save me from the evil bad nation!
> 
> Don't you know its easier to change a state or local law than it is to change a national law?  There is more freedom when government is small and governs less people than government that spreed through different culture and attempts to pass blanket laws to appease everyone.


So smaller countries with more uniform culture have more freedom? Tell that to the long list of small countries with oppressive governments. 

In fact, most of the really annoying and onerous laws come from local and state government (besides the federal income and payroll taxes). But $#@! like what you can do in your house or to your house and land, what kind of business you can run, what kind of licenses and permits you need, what you can and can't wear, etc etc etc are all local and state laws. Yeah, and we all know how easy it is to change all those laws, huh. It's easy squeezy, right? $#@! no. It's hard as hell because there are so many damned busybodies ready to tell you how to live your life and so many good old boys that want to keep control of who does what business in the neighborhood. 

One thing that makes life easier with respect to those laws is if the "lawmakers" understand that there are certain laws they simply cannot make. When they finally get it through their thick skulls, then very seldom are those laws ever made again. This is why it is good to have some "higher" law that prevents them from doing this.

If there is some sort of NAU, I'll be against it. If there are NAU laws recognized by the governments of US, Canada, and Mexico, then there won't be a whole hell of a lot I can do about it anyway. But, if the NAU law says "All persons are free to do as they will without infringing on the rights of another person," and "There shall be no taxes on personal income from whatever source derived." I will sure point police and government $#@!s to that law and say "Hey, isn't that the law you are supposed to follow? Follow the law!" And it will work about as well as "Hey, follow the constitution!" does today. But it's what we've got.




> but you are... by bypassing the separation of power and giving the federal government total control over review of all rights... you are opening them up to controlling.. the economy, education, health care, etc.  all in the name of protecting the "rights" of the people.  Thus again proving what the outcome of the 14th amendment has done.


Bypassing separation of powers? No way. I said if the state government is going to protect my rights in certain areas (say, they prevent the federal government from taxing my income) I will cheerlead for that check on federal power. 

If the federal government is protecting my rights in certain areas, (say, by saying that the state can't do anything to me that the Bill of Rights forbids) then I will cheerlead for that check on the state's power.

And the 14th amendment has nothing to do with all that stuff that you listed. This all comes from misapplication of the Commerce Clause, the General Welfare Clause, and the 16th amendment. 

The misapplication of the 14th amendment happened right after it was enacted. No one gave a $#@! about original intent then either. Eventually, the 14th amendment began to be interpreted in court accurately (and by accurately, I mean a reasonable interpretation of the words).




> Ever wondered why no one has come to this post to back up your opinion?  because its wrong and everyone has repeatedly told you so


Who, two people and you? Anyone who is not determined to re-write history in favor of the south in the civil war wouldn't care enough to even bother with this thread.

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