On Mon, Aug 13, 2001 at 10:26:29PM -0400, Russ Herrold wrote:
> 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.
>
I've read about this, but I wasn't aware they were cutting back on this
liberal interpretation of that clause.
> 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.'
>
The book I mentioned explains quite a bit about what these fellows had
read. Their knowledge of political philosophy was far in excess of most
everyone in this country currently.
> > 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 brought under the Constitution in such a way that they superseded state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 suppose this goes along with the reluctance on the part of the
Federalists to include a Bill of Rights. They felt such a thing was
unneeded because the enumerated rights were common knowledge and
encompassed commonly held views of the time about inalienable rights.
It's unfortunate that there was no "Murphy's Law" at the time.
Otherwise, they might have thought better of it in the beginning.
<snip>
> 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
(That was actually about $1.50. ;-)
I can see that the framers intended the Fed Gov to be emasculated, but
it's hard to imagine that they intended it to be _this_ emasculated. It
must never have occurred to them that the "inalienable" rights granted
by the federal Constitution would be trampled by the states. That's the
only explanation I can imagine for why they didn't make the Constitution
the overarching document, enforced on all states. While I have the
utmost respect for the framers, this is a gaffe. They didn't see far
enough in the future to realize that someone would come along and void
the rights set out in the Constitution at the state level. It's a shame
that Congress had to enact the 14thAmdt to vaguely protect the first 8
of the Bill of Rights. And it's weak protection at that, since the
courts have apparently seen fit to avoid the 2ndAmdt question in most
cases.
This answers a question for me. With such a clear 2nd Amendment, it
puzzled me why every gun control law enacted by a state was not met with
a federal lawsuit. It's because the Constitution applies only with
respect to the federal government and its relation to the people and the
states. But this also means that in a perfect world, many of the
_federal_ gun control statutes would be invalidated by a reasoned
Supreme Court ruling, infringing as they do on the 2nd Amendment rights.
You learn something every day, I suppose.
Paul
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