On Mon, 13 Aug 2001, Paul M Foster wrote:
> But here's the thing that shocked me, and a question for you lawyer
> types. He says that the original Federal Constitution, as written and
> interpreted, was never intended to supersede state laws.
Absolutely -- see the 'forgotten' Tenth Admt. and its
reservation of all matters not specifically enumerated to the
States. We modern Americans have grown accustomed to the
Congress using the Commerce Clause to bully federal control in
... -- but this is a recent (post 1930's) invention by the
Legislative and Judicial branches -- the federal Judicial is
paring this back of late.
Anyone who thinks that the chartering documents of this
country were fashioned by a bunch of ignorant peasants is
sorely mistaken -- their subtlety, perception, maturity and
sophistication as politicians far exceeds the present average
'pol.'
> Only with the
> advent of the 14th amendment were provisions of the Bill of Rights
> brought under the Constitution in such a way that they superseded state
> laws.
The caspule summary is that the 14th Amdt imposed the
requirements of federal law -- Consitittioanl, and statutory -
upon the states -- a so-called 'section 1983' cause of action
for a person against violation by a state, or subdivision of a
state, of an individual's federal Constitutional rights was a
part of the 1868 Reconstruction Acts of Congress.
> What this means is that prior to the 14th Amendment, the 2nd Amendment
> (and others) had no effect on laws passed by the states.
It would not have occured to suggest that there was an issue
until then -- 'everyone knew' that before the 14th Admt., that
the federral Constitution and Amdt's 1 thru 12 did NOT
implicitly apply to a state (an independent and co-equal)
soveriegn. It had to be an explicit grant to the fed's.
Several state constitutions repeat the federal provision
essentially verbatim -- Ohio's does, And Ohio retained it
through a post-14th Amdt revision.
(I skipped Amdt. 13. The 13th Amdt. is the 'badges and
incidents' of slavery legislative authorization to fashion
federal remedies on private conduct; the 14th extended federal
power over the recalcitrant [and indeed all] states.)
... States Rights vs. Federalism -- Local control vs. whatever
the next level up is. A recurrent theme in America politics.
Yes -- your summary is essentially correct ["no effect" is too
strong -- "no implicitly assumed effect" might be better --
Congress could craft application to the States outside the
express grant of the Consitiutionally specified areas , but it
was rare, and usually not supported by the Courts -- The First
and Second Banks of the U S come to mind] --
The 'Founding Fathers' full well intended an emasculated
federal power, with very restricted funding (basically tarrif
and excise taxes, and little else); very expressly delimited
powers, and much retention of local control.
People used to the big[ger] federal government of the WPA, and
the rest of the F D Roosevelt'ian era 'New Deal' -- and used
to its intrusion -- find this hard to fathom -- but it is
still the case.
My $.0.02
-- Russ
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