# States' Rights in the USA - why? **URL:** \ **Category:** Great Debates\ **Created:** [November 13, 2007, 2:12pm UTC](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234 "2007-11-13T14:12:50Z")\ **Posts on this page:** 5\ **Page:** 4
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [November 15, 2007, 4:46am UTC](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234/61 "2007-11-15T04:46:25Z")
> [@](#): > > Why is the 1st amendment valid to the states, but the 7th amendment (jury trial in matters over $20) has no validity to the states? It makes no sense to me. They were all ratified together. > > I know the real reason is because SCOTUS hasn’t said so, but why? One possibility, as others have mentioned, is that the Supreme Court doesn’t feel all rights are applicable to the states. But another possible reason is that the Supreme Court will only address actual challenges; it won’t offer rulings on theoretical issues. So if all states are in compliance with some protection offered by the Bill of Rights then there would be no court cases arising from that issue and nothing to be appealed to the Supreme Court. The Third Amendment for example is notable for having almost no case law regarding it because it’s so completely complied with. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 15, 2007, 11:15pm UTC](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234/62 "2007-11-15T23:15:57Z")
[QUOTE=Little Nemo] One possibility, as others have mentioned, is that the Supreme Court doesn’t feel all rights are applicable to the states. But another possible reason is that the Supreme Court will only address actual challenges; it won’t offer rulings on theoretical issues. So if all states are in compliance with some protection offered by the Bill of Rights then there would be no court cases arising from that issue and nothing to be appealed to the Supreme Court. The Third Amendment for example is notable for having almost no case law regarding it because it’s so completely complied with. [/QUOTE] Okay, let’s say that I am getting a divorce (I’m not really) and I demand a jury trial because the matter, obviously, is a civil matter with assets in excess of $20. The state of Florida won’t grant a jury trial in a divorce case (and no other state does that I am aware of) Isn’t the state denying me a “privilege” granted to me as a citizen of the United States (the 7th amendment) ? Maybe nobody has presented this case to the court, but again, how could a judge consider the first amendment a fundamental right, but not consider a right to a jury trial in matters over $20 the same thing? I mean, if they aren’t going to use the BOR as a guide, then what are they using? Their own opinions? I know they are judges, but what do they base their opinion on as to what fundamental rights are? The bible? Forsooth! Or do they just pick and choose depending on their own personal thoughts? For example, maybe if I was a judge I could find a right to own dogs as the basis of liberty, or I could see the same thing as animal slavery and punishable by death. In short: If we are going to talk about “fundamental rights” don’t we need a base level to define that term? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [November 16, 2007, 1:51pm UTC](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234/63 "2007-11-16T13:51:21Z")
Just a guess, but the Florida state judge would probably use the Florida state constitution as a starting point, given the fact the divorce would be controlled by Florida state law. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [November 16, 2007, 2:37pm UTC](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234/64 "2007-11-16T14:37:33Z")
[QUOTE=jtgain] Okay, let’s say that I am getting a divorce (I’m not really) and I demand a jury trial because the matter, obviously, is a civil matter with assets in excess of $20. The state of Florida won’t grant a jury trial in a divorce case (and no other state does that I am aware of) [/QUOTE] Probably not the best example. > [@](#): > > Those matters which were tried by a jury in England in 1791 are to be so tried today and those matters which, as in equity, were tried by the judge in England in 1791 are to be so tried today, and when new rights and remedies are created ‘‘the right of action should be analogized to its historical counterpart, at law or in equity, for the purpose of determining whether there is a right of jury trial,’’ unless Congress has expressly prescribed the mode of trial. Were divorce cases tried by a jury in England in 1791? > [@](#): > > Isn’t the state denying me a “privilege” granted to me as a citizen of the United States (the 7th amendment) ? No. The Court rejected this argument in The Slaughter-House Cases: > [@](#): > > The language is, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose. > > **Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State** , and what they respectively are, we will presently consider; but we wish to state here that it is **only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment…** > > Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Washington in the Circuit Court for the District of Pennsylvania in 1825.“The inquiry,” he says, “is, what are the privileges and immunities of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would be more tedious than difficult to enumerate. **They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.** ” > > It would be the vainest show of learning to attempt to prove by citations of authority, that up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States – such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. **But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.** Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?.. > > The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt. > > **We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.** > > **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. (Emphasis added.) > [@](#): > > Maybe nobody has presented this case to the court, but again, how could a judge consider the first amendment a fundamental right, but not consider a right to a jury trial in matters over $20 the same thing? Way back in 1877, the Court was already saying: > [@](#): > > We have held over and over again that art. 7 of the amendments to the Constitution of the United States relating to trials by jury applies only to the courts of the United States, Edwards v. Elliott, 21 Wall. 557 [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=95&invol=294#296](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=95&invol=294#296) _and see_, Alexander v. Virginia, 413 U.S. 836 (1972) (“A trial by jury is not constitutionally required in this state civil proceeding”): [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=413&invol=836](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=413&invol=836) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 16, 2007, 2:50pm UTC](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234/65 "2007-11-16T14:50:53Z")
[QUOTE=jtgain] Okay, let’s say that I am getting a divorce (I’m not really) and I demand a jury trial because the matter, obviously, is a civil matter with assets in excess of $20. The state of Florida won’t grant a jury trial in a divorce case (and no other state does that I am aware of) Isn’t the state denying me a “privilege” granted to me as a citizen of the United States (the 7th amendment) ? Maybe nobody has presented this case to the court, but again, how could a judge consider the first amendment a fundamental right, but not consider a right to a jury trial in matters over $20 the same thing? I mean, if they aren’t going to use the BOR as a guide, then what are they using? Their own opinions? I know they are judges, but what do they base their opinion on as to what fundamental rights are? The bible? Forsooth! Or do they just pick and choose depending on their own personal thoughts? For example, maybe if I was a judge I could find a right to own dogs as the basis of liberty, or I could see the same thing as animal slavery and punishable by death. In short: If we are going to talk about “fundamental rights” don’t we need a base level to define that term? [/QUOTE] Well: First, it has to be a “federal question.” That is, it’s not the case that this dispute _can be_ decided completely on the basis of state statute and constitution while taking everyone’ arguments into account. For example, suppose you’re advancing an argument based on a right guaranteed both in the First Ten Amendments to the U.S. Constitution and the Article in the State Constitution enumerating citizens’ rights (I avoided saying “Bill of Rights” because that’s generally the name for both of them) – the court does not have to take the Federal constitution into account because the exact same right is spelled out in the State constitution. So the state court renders a decision in accord with state law, a decision that covers all the rights-based arguments raised. The Supreme Court of the United States has no more reason – and no more entitlement – to review that decision than they do to fix your speeding ticket – and possibly less. Second, it has to be a **real** “case or controversy.” In other words, it can’t be a hypothetical question raised on an Internet message board – it has to be something that is both a real dispute between two or more people with someting at stake in the outcome, and one that someone feels strongly enough about to take it to the SCOTUS level. While it’s entirely plausible that a SCOTUS majority at some time in the past, present, or future might find a right to a jury civil trial to be constitutionally guaranteed in response to an appeal of a trial before a judge where the argument for right to a jury trial was raised and ruled against, SCOTUS does not and cannot pull such rights out of their collective rectums in the absence of a clear “case or controversy” where someone brings suit and it’s clear that that right, if it does exist, is being denied. Third, there are three clauses in Article XIV, Section I which could enable incorporation. The first is the “privileges and immunities” clause – but a SCOTUS majority has never interpreted this to guarantee anything significant to anyone whatsoever (except for five years it was deemed a limitation on state taxing power, a ruling now reversed). The second is the “due process” clause and the third the “equal protection” clause. In general, rights relative to trials and the like are subsumed under a generalized right to due process of law – that is, you are getting fair and equal treatment as regards the equity and justice of the results. For example, you cannot be tried for a felony in Federal court without first being indicted by a grand jury – a majority of 23 of your fellow citizens must agree that there’s enough evidence suggesting you might have done it to warrant conducting a trial to determine if you did in fact do it. This requirement has **not** been incorporated – but what **has** been incorporated is a requirement of equivalent due processs. If your state doesn’t require a grand jury, they must have some other protection in place to assure you don’t get tried for a felony on the bare accusation of a cop or D.A. who may have it in for you – for example, a mandatory preliminary hearing at which the prosecution must convince the judge it has enough evidence to warrant binding you over for trial. For you to be entitled to a civil trial by jury as a fundamental right, you would need to convince a SCOTUS majority that (a) you ‘suffered a loss’ in the legal sense, (b) that loss was directly related to losing a civil suit, and (c) that you did not receive the equal treatment and due process from the judge trying the original case that you would have received from a jury. So far, nobody has felt strongly enough about a violation of the 3rd or 7th Amendments or a few clauses in the others to have warranted taking a case to SCOTUS. Because that’s how binding precedents get set – Gideon or Dolly Mapp or Miranda and their counsel had a Federal case, and believed in their case enough to take it all the way up. [Previous page](https://boards.straightdope.com/t/states-rights-in-the-usa-why/426234.md?page=3)