Calling All Counsel -- Is The Bill of Rights "Being Eroded Away"?

[Danimal]

*Originally posted by Jodi *

Originally posted by usurper
The framers only made one real mistake in the scripting of the Constitution. I hope I can convince any lawyer reading this of what is really happening. The founders never envisioned that one day the three branches of government who conspire together to circumvent the Constitution. This is the plight of today.

Ah, yes, the Great Conspiracy to Torpedo the Constitution. I wonder if you could explain in a little more detail what you mean?
**

I can think of one instance where usurper’s view might be valid; for a number of decades the judiciary and the legislature pretty well tacitly agreed that the Commerce Clause could be stretched to cover absolutely anything. The executive hasn’t been part of that, really, but neither has it done anything to prevent it, so if you really stretch you could call it a collusion between all three branches of government.

Of course, that comfy arrangement is now breaking down, as the Rehnquist court has finally suggested that there actually are some things Congress doesn’t have power to do under the Commerce Clause. That will be the true lasting legacy of the Rehnquist court, IMO: the change in the balance of power between the states and the federal government, not its effect on the Bill of Rights.

[minty_green]

*Originally posted by Danimal *
Lower courts, state and federal, have treated the 2nd amendment as applying only to the federal government. The states have been given carte blanche to impose any restrictions on keeping or bearing arms that they wish. This diverges somewhat from the traditional view that the 14th amendment applies the restrictions of the Bill of Rights to the state governments.

I’ve seen that idea in a couple of gun control threads recently, so I figured I’d toss in my $250/hr to say that it’s incorrect. As a matter of fact, the Supreme Court has expressly rejected the notion that the 14th Amendment’s Due Process clause (which applied to the states) incorporates the Bill of Rights wholesale against the states. Although the Court has decided that XIV incorporates most of the BoR, it has on at least one occasion (grand jury-related, IIRC) rejected the notion that a BoR provision applies to the states as well as the feds. The Court has not, however, decided to what extent the 2nd Amendment applies to the state governments. Not surprising since they haven’t even clarified very much what it means w/r/t the federal government.

[schplebordnik]

Good for Danimal for actually reading my whole post. Shame on Jodi for not.
Kind of like reading the 2nd Amendment without reading the part about well-regulated militias. Oh, oops, I forgot, that’s mere sursplusage…

Scalia’s arguably a civil libertarian. Flag burning and heat-sensor search case support that supposition. And a lot of the complaints about Rehnquist court taking away our civil liberties can be chalked up to limiting or restricting unenumerated rights. Which one can credibly argue isn’t taking away any true Constitutional right. If you really want those penumbral rights, you can always get your state legislator, and U.S. Congressperson, to work on a Constitutional amendment…

[SuaSponte]

*Originally posted by Danimal *
I can think of one instance where usurper’s view might be valid; for a number of decades the judiciary and the legislature pretty well tacitly agreed that the Commerce Clause could be stretched to cover absolutely anything.

The federalism v. Commerce Clause debate does not constitute a threat or erosion of the constitutional freedoms of the people. It is an argument about which level of government may regulate certain activities. If the Rehnquist court determines that, due to federalism concerns, the Federal guvmint can’t regulate X, it means that the States can regulate X. There is no impact on what amount of regulation the people may be subject to.

Sua

[december]

*Originally posted by SuaSponte *
**The federalism v. Commerce Clause debate does not constitute a threat or erosion of the constitutional freedoms of the people. It is an argument about which level of government may regulate certain activities. If the Rehnquist court determines that, due to federalism concerns, the Federal guvmint can’t regulate X, it means that the States can regulate X. There is no impact on what amount of regulation the people may be subject to.
Sua **

I agree that there’s no impact on what amount of regulation people may be subject to, but there’s big impact on the amount of regulation we are subject to. Had the Commerce Clause not been expanded, the states might not have enacted as massive an amount of regulation as the federal government has.

[SuaSponte]

*Originally posted by december *
I agree that there’s no impact on what amount of regulation people may be subject to, but there’s big impact on the amount of regulation we are subject to. Had the Commerce Clause not been expanded, the states might not have enacted as massive an amount of regulation as the federal government has.

Ya know, december, this may be the first time I’ve noticed you fall back on a conservative stereotype - in this case “federal government bad, state government good”. When Congress enacts legislation, it “occupies the field”, precluding state legislation. Thus we will never know how much regulation the states would have enacted in the affected area. There is no reason to believe that the states, given free rein, would not have enacted more onerous regulation. After all, ya know, some states are run by Democrats.

Sua

[december]

*Originally posted by SuaSponte *
**
Ya know, december, this may be the first time I’ve noticed you fall back on a conservative stereotype - in this case “federal government bad, state government good”. When Congress enacts legislation, it “occupies the field”, precluding state legislation. Thus we will never know how much regulation the states would have enacted in the affected area. There is no reason to believe that the states, given free rein, would not have enacted more onerous regulation. After all, ya know, some states are run by Democrats.

Sua **

I didn’t say regs were “bad,” I said there was a “massive amount” – a non-judgmental, factual statement. Many peoploe believe regulation is good.

Here’s a quote relating to the magnitude:

…in fiscal year, FY, 2000, some 54 federal departments and agencies and over 130,000 federal employees spent over $18.7 billion writing and enforcing federal regulations. …

Rochester Institute of Technology’s Professor Thomas Hopkins estimates that the total cost of federal regulation will be $721 billion in 2000, which is equal to about 40 percent of all federal spending-- …

See: http://www.senate.gov/~inhofe/fl101800.html

[DSYoungEsq]

Back tomorrow when I can devote some time to an answer.

[Weird_AL_Einstein]

*Originally posted by minty green *
**
As a matter of fact, the Supreme Court has expressly rejected the notion that the 14th Amendment’s Due Process clause (which applied to the states) incorporates the Bill of Rights wholesale against the states. Although the Court has decided that XIV incorporates most of the BoR, it has on at least one occasion (grand jury-related, IIRC) rejected the notion that a BoR provision applies to the states as well as the feds. **

Could you give me a cite for this please? And in the meantime, tell me what you know about what standard(s), if any, have been established to determine what parts of the BoR do or do not apply to the states as a consequence of the 14th amendment?

[minty_green]

Simplicity itself, Al. I get back home to my books and notes this evening, and will be happy to provide the cites then.

Lessee, where did I leave that Crim Pro outline . . .

[MEBuckner]

The framers only made one real mistake in the scripting of the Constitution.

So giving constitutional protection to slavery (“Representatives and direct Taxes shall be apportioned among the several States…according to their respective Numbers [population], which shall be determined by adding to the whole Number of free Persons…three fifths of all other Persons” and “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”) and not guaranteeing women’s suffrage were mere triffles? For that matter, the Bill of Rights is a series of amendments.

[minty_green]

Here ya go, Weird_Al. Let’s start with the pre-14th Amendment jurisprudence. If you take a look at Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833), you’ll see Chief Justice Marshall stating that:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.

So in the beginning, the states could pretty much ignore the Bill of Rights, as you probably knew.

The 14th Amendment, however, specifies that “nor shall any State deprive any person of life, liberty, or property, without due process of law . . .” (emphasis added). Because of this language, many of the rights guaranteed against the federal government in the Bill of Rights have been incorporated against the individual states. But as my Constitutional Law casebook puts it:

The majority of the Court has never accepted the view that the 14th Amendment in effect “incorporated” all the provisions of the Bill of Rights. Instead, the dominant position has been that due process merely requires “fundamental fairness” in state proceedings. But for decades the majority has recognized that “fundamental fairness” may afford the defendant rights that correspond to some of the guarantees in the Bill of Rights.

That is, in fact, the position of the Court in Twining v. New Jersey, 211 U.S. 78 (1908), Palko v. Connecticut, 302 U.S. 319 (1937), and Adamson v. California, 332 U.S. 46 (1947). Note particularly Justice Black’s dissent in Adamson, in which he advocates wholesale incorporation of the Bill of Rights. Note especially particularly that Justice Black lost that argument.

The more modern approach to the due process problem is typified in Duncan v. Louisiana, 391 U.S. 145 (1968). In that case, the Court articulated a test that inquires whether a right is “fundamental to the American scheme of justice.”

To be sure, pretty much everything in the Bill of Rights has been held to apply to the states as well as the federal government, even though each asserted right had to be considered individually. Nevertheless, it is certainly not the case that a right guranteed by the Bill of Rights necessarily applies to the states. To wit, I present Hurtado v. California, 110 U.S. 516 (1884). Hurtado held that the Fifth Amendment’s requirement of indictment by grand jury does not apply to the states, and it is still good law.

I think there are other cases out there that limit the applicability of the BoR against the states, but I’m not completely sure of that. However, I am quite certain that there are no Supreme Court cases holding that the 14th Amendment incorporates the 2nd Amendment (whatever it may mean) against the states. To quote one of my favorite movies, anybody who says otherwise is selling something.
[sub]Note: My links seem to be acting weird on preview. If they don’t work properly, just fill in the “___ U.S. ___” numbers from the findlaw.com search engine: http://guide.lp.findlaw.com/casecode/supreme.html

[MEBuckner]

Just a quick hijack, but have the courts ever said anything in particular about the “priveleges or immunities” clause of the Fourteenth Amendment? (which says “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”)

[minty_green]

The privileges and immunities clause is of rather limited usefulness. It protects a few minor rights, but nothing huge. The leading opinion is known as The Slaughtehouse Cases, 83 U.S. 36 (1872). It’s old, but it’s still pretty much definitive on the privileges and immunities clause. Here’s the crucial language:

Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so.

But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws.

One of these is well described in the case of Crandall v. Nevada. It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, ‘to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language of Chief Justice Taney in another case, it is said ‘that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.

Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, [83 U.S. 36, 80] are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon a fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered.

But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration.

So your privileges and immunities are: [list][li]The right to redress of (federal?) grievances.[/li][li]Access to (federal?) courts.[/li][li]Protection on high seas and in foreign countries. (Take that, Afganistan!)[/li][li]Peaceable assembly.[/li][li]Habeas corpus. (Take that, Texas Court of Criminal Appeals!)[/li][li]Use of navigable waters.[/li][li]Rights granted by treaty. (As if such rights existed.)[/li]
And that’s pretty much it.

[MEBuckner]

You know, sometimes constitutional law is just downright weird.

Thanks, minty.

[minty_green]

Guess that’s why they make us take six or more hours of Con Law, huh?

No sweat, MEB. Didn’t even have to change chapters in my Con Law casebook.

[Weird_AL_Einstein]

minty:

First off, thanks for the info. The links didn’t work, but in any case it seems that the cases cited dealt with defendents rights in court proceedings, and thus the tests created for applicability of the BoR to the states would be concerned with that. I infer this from statements like, “‘fundamental fairness’ in state proceedings” and “fundamental to the American scheme of justice.” Also, the one case you cited in which a right in the BoR did not apply to the states involved grand jury indictments.

So now I am curious as to how and when rights not involving judicial proceedings, like the 1st amendment guarantees of freedom of speech, religion, etc, came to be applied to the states. A standard regarding these rights strikes me as a better indicator of how the 2nd amendment might be applied, if it were to come up. Assuming of course, that the judges in the case do not put a political agenda above interpreting the constitution.

[minty_green]

I don’t think the fact that those cases involved criminal prosecutions diminishes their relevance to the 2nd Amendment problem. As the bumper sticker goes, when guns are outlawed only outlaws will have guns. When California tosses Charlton Heston in jail for stockpiling assault muskets, it will be a criminal case.

[sub]Freakin’ findlaw links . . . gotta find out what’s up with that. Like I said, just punch the reporter numbers or a party name into the findlaw.com Supreme Court search engine and they should show right up.[/sub]

[minty_green]

*Originally posted by Weird_AL_Einstein *
Assuming of course, that the judges in the case do not put a political agenda above interpreting the constitution.

I.e., as long as they follow your political agenda, right?

[Polycarp]

So now I am curious as to how and when rights not involving judicial proceedings, like the 1st amendment guarantees of freedom of speech, religion, etc, came to be applied to the states. A standard regarding these rights strikes me as a better indicator of how the 2nd amendment might be applied, if it were to come up. Assuming of course, that the judges in the case do not put a political agenda above interpreting the constitution.

Well, ordinarily such things come to the Supreme Court in one of two ways: Someone attempts to exercise one of those rights in some particular way, is arrested under an extant law of his jurisdiction for doing so, and takes the case up the line to the USSC (or rather to the highest court he can appeal to, then petitions the USSC for cert.); or he tries to do something he believes he has the Constitutional right to do, is denied permission to do so by local authorities (you can’t have a Bible rally in Harry’s vacant field without a mass gathering permit from the town – which will cost you for port-a-potties, off-duty police, and so on), sues them and takes that up the line through the courts in the same way.

And I was inquiring about all ten amendments in the Bill of Rights, not just the First or the Second. (And of course the Fourteenth.)

I think many of my questions were cleaned up by some quite rational analysis by Jodi and Sua.