POLL- Incorporation: 14th amendment, 2nd amendment, etc.

[colecrowe]

I believe that the Federal government must ensure the protection of all its citizens against violations of their civil liberties by State or Local governments. This absolutely must include the 2nd Amendment--just as it must include all the others that guarantee civil liberties and equal protection of the laws.

One thing that would be very important to me about Ron Paul's beliefs would be if he believes in the incorporation clause. Or if he believes in it only for the 2nd Amendment and not the others.

I bring this up because of the upcoming Supreme Court hearing on the DC gun ban. The incorporation clause of the 14th amendment is incredibly important to this issue. Now, I believe that the states have no right anymore (since the 14th amendment) to outlaw gun ownership, establish an official religion, nor to UNEQUALLY restrict voting rights (with poll taxes, etc.). I say that because I think there are many people who are very much for states rights and would disagree with me on those last two points (incorporation of the 1st Amendment and Equal Protection Clause and voting rights laws designed to implement equal protection) but who are very much for the 2nd Amendment being incorporated. [note: I AM NOT SAYING I AGREE WITH EVERY VOTING RIGHTS LAW OR CIVIL RIGHTS LAW AT ALL!]

So, I say it should be across the board--and I will say why.

I agree very much with Ron Paul about strict adherence to the constitution. I do believe in the great importance of the tenth amendment. And I know it has been raped and that we are no longer a limited federation (as reiterated and confirmed in the tenth amendment) at all--that even having states anymore is almost a joke because of how trampled that important, once-cherished idea of limited, defined central control, states rights, etc. has become. I mean, obviously we have completely abandoned such a hugely important part of the Constitution. And for those reasons Ron Paul is the best thing we could hope for and we need him badly.

But I also think (my opinion--I'm not saying this is fact or settled) a necessary change happened to our Constitution after the Civil War that made our country quite a bit different than what the founders (their consensus) wanted or laid out. In this way:

Before (and this was the founders' consensus from what I've read--tell me if I'm wrong), the Congress--the Federal government--could only prevent the States from doing things that were prohibited to them, such as signing treaties, declaring war in almost all cases, regulating interstate commerce in almost all cases. Other than that, the states could do anything they wanted. And the restrictions in the Bill of Rights guaranteeing civil liberties only applied to the Feds. The states could have stifled free speech, outlawed gun ownership, completely denied fair trials, etc.

But with the Fourteenth Amendment the power structure was changed so that the Federal Government had the power to enforce the protection of civil liberties if the states violated them and to require the states to provide equal protection under the law. [The Incorporation Debate: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm -- Equal protection clause: http://en.wikipedia.org/wiki/Equal_Protection_Clause -- Civil Rights Act of 1866: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866]

That incorporation site has an interesting list of the first 8 amendments and the precedents and consensus that have developed on whether or not the incorporation clause theory applies to them and how. Very interesting is the 2nd Amendment, and they refer to this case: United States v. Cruikshank: http://en.wikipedia.org/wiki/United_States_v._Cruikshank

I think that this change established an entirely necessary and good power for the Federal Government to possess and that it should be required to enforce such provisions.

Now, that is my opinion--and if the historical record shows that that indeed was not the purpose of the 14th amendment, and that therefore under the constitution and history we should be much more of a confederation (weaker central power) in that regard, then I will cede that point.

But even if that were true, I would not want to live in that type of confederation (I'm talking only about in our unique country and considering our history, culture, etc). And I would advocate (if the 14th amendment doesn't already do it) that an amendment be passed doing what the incorporation clause theory and equal protection theory says. Radical belief in confederation and states rights to the point that it is believed the states should have the right to restrict or violate civil liberties is unnecessary. If we can trust in the wise standards set up by the Constitution such as separation of powers and checks and balances to ensure that federal government stays in control in the matters of foreign policy, regulation of interstate commerce, taxation, etc, then why can't we trust it to protect every citizen's individual civil liberties from violation by State or Local governments and to make sure the States apply their laws evenly and protect all citizens equally.

AFTER ALL, we believe in Liberty first--the Constitution was made to ensure liberty and the rule of law. The Constitution is not the most holy thing--if it restricts liberty or has provisions that allow the circumvention rule of law (3/5 of a person violated equality under law, and therefore the rule of law, and that was rightly changed).

So what does Ron Paul say about incorporation--and what do you think? [Don't yell at me--I have searched and looked, but haven't really found anything.]

 

[vertesc]

One of the few proper tasks of the Federal Government is to ensure that all the states adhere to the Constitution. These all violate constitutional rights, the Feds would be completely justified in intervening.

 

[nickcoons]

I believe this is the Incorporation Clause the courts have used to enforce some of the Bill of Rights to the states:

"nor shall any State deprive any person of life, liberty, or property, without due process of law;"

However, I think this clause in the 14th amendment is much more appropriate:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"

And there's a portion of Article IV in the unamended version of the Constitution:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

So it could be argued that the states have always been bound by the Bill Of Rights. If not, it could be argued that the "Privileges or Immunities" clause bound the states to the Bill Of Rights.

In either case, I think the only valid arguments are that the states are bound by all of the Bill of Rights, or none of them. The argument that the states are bound by some of them come from Supreme Court decisions in certain cases that the a state violated someone's "X" Amendment rights. The Supreme Court's authority to make that decision must come from the Constitution, and no where in the Constitution (that I can find) does it say that the states are bound by some of the Bill of Rights. So if the Supreme Court finds that states cannot violate some of the first 10 amendments, then it must find that the states cannot violate any of the others as well.

Regarding Ron Paul's stance on this; I'm not sure. I don't recall him ever talking about it. I've heard him talk about the 1st Amendment and the 2nd Amendment, but I don't recall him saying anything that I could infer as being either in support or against incorporation.

 

[nickcoons]

I'm a little confused by your poll, though. The first four answers are all forbidden in the Bill of Rights, so anyone agreeing with total incorporation would agree with those options. However, how does the option "Systematically ALLOWING lynching" fit in with the others? I feel like I'm on Sesame Street and I need to pick the one that doesn't belong .

 

[colecrowe]

RE: allowing lynching

I'm a little confused by your poll, though. The first four answers are all forbidden in the Bill of Rights, so anyone agreeing with total incorporation would agree with those options. However, how does the option "Systematically ALLOWING lynching" fit in with the others? I feel like I'm on Sesame Street and I need to pick the one that doesn't belong .

because of the 14th amendment, which guarantees equal protection under the law (which isn't really a civil liberty, because that entails a restriction on the government, not a requirement for it to do something--but is a 'right' under the Constitution). After all, the Constitution is about guaranteeing civil liberties AND rule of law, thus both must be protected. So if a gov't is enforcing the law differently for different people (not protecting some people and protecting others--so, 'systematically'), then there is no equal protection. It would be the same as if say in a state there was a religious majority, and the gov't there allowed people in that majority to kill or restrain or something people in the minority. That STATE wouldn't be violating the civil liberties of those people, but it wouldn't be applying the law equally.

 

[Tarzan]

[The Incorporation Debate: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm -- Equal protection clause: http://en.wikipedia.org/wiki/Equal_Protection_Clause -- Civil Rights Act of 1866: http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1866]

Please don't be offended. Your arguments and reasoning are going in a bit of a circle. I strongly suspect the materials you are using are causing the confusion. You should read the constitution WITHOUT anyone telling you want THEY think it means. It is relatively short and comparatively easy to understand. A good source is here: US Constitution . I find their notes useful and accurate... but, find your own sources when in doubt about the meaning of a passage or word. I think a nice clean read of the constitution will help clear up some of the circular arguments you are encountering.

You should STOP using wikipedia for information. You need to consider using genuine SOURCED materials. Wikipedia is NOT reliable. As much as possible I recommend going to the actual source materials. If further explanation is necessary reviewing the notes of the source creators should be the next stop.

For example, when reading the constitution don't depend on the notes of others... particularly when the notes come from a law school... these are some of the most suspect. The next best source are the notes of those who wrote the constitution... then, the federalist papers.

And, don't fall into the trap of "clever" debates. There is a right and wrong answer based on the words of the constitution. The constitution is and was not perfect... but, remember that we have the ability to change the constitution. It is an arduous process and rightly so... we are a Republic, and not a democracy, as democracy quickly leads to mob rule. The Greeks learned the hard way as did the French. The US supreme court OFTEN has 5-4 decisions. Does that make any scense? All they need do is rule on the constitutionality of a given issue. But they, like many others, fall into the trap or not reading the words and original intent. Instead they follow their own prejudices or credit current "social or international" norms. They are just... well, WRONG!

The notion of a debate is to prepare you to argue both sides of the subject. A nice mental exercise but not based in the real world where they ARE right an wrong answers based against a given standard. In our case the standard is the constitution.

What does Ron Paul think about this? I don't know.
best of luck and happy reading

 

[nickcoons]

because of the 14th amendment, which guarantees equal protection under the law (which isn't really a civil liberty, because that entails a restriction on the government, not a requirement for it to do something--but is a 'right' under the Constitution). After all, the Constitution is about guaranteeing civil liberties AND rule of law, thus both must be protected. So if a gov't is enforcing the law differently for different people (not protecting some people and protecting others--so, 'systematically'), then there is no equal protection. It would be the same as if say in a state there was a religious majority, and the gov't there allowed people in that majority to kill or restrain or something people in the minority. That STATE wouldn't be violating the civil liberties of those people, but it wouldn't be applying the law equally.

But these things:

Outlawing gun ownership
Establishing/prohibiting a religion
Abridging free speech
Denying a fair trial

...all exist in the Bill of Rights. "Systematically ALLOWING lynching" (or anything regarding lynching) does not. While I agree with Ron Paul's statement that everyone deserves equal protection under the law, I don't think this has anything to do with the Bill of Rights or incorporation. Since incorporation is the topic of discussion, it doesn't seem to fit in your poll.

 

[Patriot]

But these things:

...all exist in the Bill of Rights. "Systematically ALLOWING lynching" (or anything regarding lynching) does not. While I agree with Ron Paul's statement that everyone deserves equal protection under the law, I don't think this has anything to do with the Bill of Rights or incorporation. Since incorporation is the topic of discussion, it doesn't seem to fit in your poll.

I think that would be covered under the right to life.

 

[nickcoons]

I think that would be covered under the right to life.

An interesting interpretation. Ron Paul has stated that murder and other violent crimes are rightly dealt with by the states. Wouldn't it be true, by extension, that states could decide not to deal with these acts?

 

[Kade]

I love the responses to this poll, way to go people with brains.

 

[colecrowe]

re: murder

Patriot >>
I think that would be covered under the right to life.

nickcoons >>
An interesting interpretation. Ron Paul has stated that murder and other violent crimes are rightly dealt with by the states. Wouldn't it be true, by extension, that states could decide not to deal with these acts?


Well, there is no 'right to life' under the Constitution--because it's not a civil liberty (restriction on the state) in the sense of murder by an individual, not committed by the state. But the state is supposed to protect the right to life EQUALLY, which the 14th amendment states ("nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws"). So, yes they are absolutely SUPPOSED to be covered by the states, but, the federal gov't would have to step in if and only if the State wasn't providing equal protection, i.e., allowing murder, lynching, etc.