Perhaps “contradictory” is the wrong word to use. Fine. But the fact is you haven’t shown “a different Constitutional conflict.” If want to show that the feds can do something but the states cannot, it is incumbent on you to explain the rationale for that position. The only rationale that I can think of for such a distinction would be federalism grounds or the Supremacy Clause, neither of which is implicated here.
So on what grounds would such a distinction in this case make any sense at all? All you’ve said is “I think the 14th amendment should mean X” without explaining why this is a sensible division of federal and state power by the drafters of the 14th amendment. **
You won’t convince me that the states are prohibited from enforcing it precisely because such an interpretation would render the 14th amendment into nonsense.
Look, the second sentence of the first section of the 14th amendment clearly applies only to the states, always has applied only to the states, has never bound the federal government, period, full stop, end of argument. And as I noted, the states would have little opportunity to be involved in enforcing this act. So even if I took your position regarding the 14th amendment as given, it doesn’t change much about the constitutionality of this proposal – UNLESS you also mean that somehow the 14th amendment also binds the federal government.
That is contrary to both the language of the amendment and to years of interpretation (consider Brown v. Board – based on the 14th amendment’s equal protection clause – could not be used to desegregate D.C. schools; for that, the court had to find another, non-14th amendment hook, and did in Bolling v. Sharpe).
I think when your view conflicts with such a fundamental, well-established principle of law, you ought to consider that your construction might be wrong.
So again I ask: let’s say, hypothetically, that the states can’t participate in this act’s enforcement. So what? What possible impact does that have on the act?
What do you mean? This is what the 14th Amendment says. Whether it’s sensible isn’t relevant to the fact that this is what is says. It’s not that I think it should mean this, it’s that it does.
It suggests that it is contrary to the spirit of the Constitution, even if it does not violate it.
Boy, wouldn’t that be a swell thing to say at oral arguments: “Gee, your honor, I can’t make head or tail of it myself, it doesn’t make any sense at all and I can’t think of one reason why the authors of the 14th amendment would have wanted the text interpreted this way – but you should favor my interpretation anyway!”
Good luck with that one, Sparky. **
So are you also saying that existing law is “contrary to the spirit of the Constitution”? Because the federal government can still take away your citizenship for things like treason or joining a foriegn military; under your view of the 14th amendment, the states can’t participate in enforcing those determinations because it removes the privileges and immunities of citizenship; thus, you’ve got the same dichotomy under existing law as you do under Patriot II. Do you really want to stick with that argument?
I’m sure you’re being sarcastic, since you are well aware that any judge presented with your blatant and completely nonprobative strawman would reprimand you. I have told you what the Constitution says. You have responded that that is nonsensical, contradictory, and irrational… but you haven’t been able to show that it’s not what the Constitution says. Why don’t you try your tactics in an actual courtroom. Instead of arguing why your client is innocent, simply present a bunch of reasons why the law he broke is silly and shouldn’t have been passed, and the DA himself has admitted that he doesn’t understand the motivations for enacting it. See how far that takes you. I don’t know why the Constitution says what it says, but so what? That’s completely irrelevant to the discussion.
Existing law allows for abuse. The proposed change invites abuse. The shifting of the burden of proof from the government to the accused endangers the rights guaranteed by the constitution.
An analogy:
Existing law: Nothing from a search, except under certain circumstances, may be entered into evidence unless that search was in accordance with a warrant. It is up to the prosecution to prove that the search was in accordance with a warrant.
New law: Nothing from a search, except under certain circumstances, may be entered into evidence unless that search was in accordance with a warrant. It is up to the defense to prove that the search was not in accordance with a warrant.
(Note: this is meant as an analogy/hypothetical, not a description of current law).
Do you see how the new law makes fourth amendment rights much more vulnerable? It should be up to the government to prove that they are acting in accordance with the Constitution, not the citizens to prove they aren’t. “We can do whatever we want, as long as we make sure that no one can prove anything” is not an attitude I want the government to have.
I missed this last post of yours when you originally posted it. Suffice it to say that you’re simply being absurd to the point that productive discussion is impossible.
What you’re essentially saying is that existing law is abusive when, say, a person joins a foriegn military and is stripped of his citizenship, and that therefore the states cannot, under the 14th amendment, assist in any way with the enforcement of existing law as applied. That is, simply put, a bizzare interpretation.
I’m not going to continue down this particular rabbit hole. If you want to live in a bizzaro world where the above statement is an accurate description of constitutional law, fine; I’ll wait for your return to the real world to continue the discussion.