View Single Post
Old 03-13-2007, 09:29 PM   #46 (permalink)
smooth
Junkie
 
Location: Right here
First of all, there is nothing in anything you've posted, other than your opinion, that substantiates your claim that "An individual doesn't have inalienable rights that the federal government can't intrude upon, but the states can freely do so as long as it's not in their state constitutions. That ideology is patently absurd."

That is the very essense of federalism--dual sovereignty. The federal constitution places restrictions on what the *federal* government can do to individuals. The BoR was never intended to interfere with how the states dealt with their own citizens in their own court systems. The states have always been able to do what they want with their citizens. *Now*, the states are only able to do what they want with their citizens so long as it is accordance with the federal government's bare minimum of protections. I don't feel the need to fight this issue with you, our nation already resolved its recalcitrant states' beef with federal sovereignty by 1865.

What I find strange is that you post links you think support your argument, yet whenever I take the time to read them I find them in opposition to your claims. For example, this is from the link you provided on the Shipp case:
Quote:
In 1906, there was little reason to expect relief in the federal courts. Federal judges could not reconsider the evidence presented in state trials. They could only act when the federal constitutional rights of the defendant had been violated. Moreover, the Supreme Court had narrowly interpreted the Fourteenth Amendment's due process clause. The protections of the Bill of Rights--to an impartial jury, to effective counsel, right against self-incrimination, and all of its other guarantees--had not yet been found by the Court to be applicable in state trials. As of 1906, there existed not one case in which the federal courts had reversed a state court conviction on the basis of the due process clause.
This indicates to me that up until this case the BoR protections were only thought to be applicable in federal courts--even after the passage of the 14th amendment, according to sentences I bolded.

Quote:
Solicitor General Henry Hoyt argued that the Court did have jurisdiction. Hoyt contended that Johnson's right to be heard on his application for habeas corpus was protected by the Constitution and that the Court acted appropriately in staying his execution. "This proceeding is about nothing less than establishing and protecting the rule of law," Hoyt told the justices. Judson Harmon, a Cincinnati lawyer representing Sheriff Shipp, countered by arguing that none of Johnson's federally protected rights had been violated and that therefore the Court improperly granted its stay. Since the stay was improperly issued, Harmon argued, no one who violated the Court's orders should be found in contempt. Harmon was interrupted by Justice Holmes who asked, "But you would agree that this Court has the authority to determine that the Sixth Amendment [with its guarantee of a fair trial] is binding on the state courts, do you not?" The possibility that the Court might actually be ready to apply the protections of the Bill of Rights to state courts shocked Harmon, and he understood for the first time how strongly incensed some of the justices must have been with the handling of the Johnson case.
emphasis mine


So it appears that not only is my point that the federal constitution was not historically applied to state proceedings correct, it seems these protections were not all applied to state proceedings even *after* the 14th amendment had been in effect (which I also stated)...this by your own evidence.

Now, out of curiosity, you claim that Shipp was the first time the court applied the BoR against the states. You also claim his trial was due to denying a black man's "due process." The BoR are the first 10 amendments of the constitution, and does not include the 14th amendment. Yet, if what I am saying is untrue about the BoR not intended to be applied to the states, what possible reason would there be a right to due process in the 5th amendment, and the *same* right in the 14th? And why would this article discuss the 14th amendment and not the 5th when it details the jurisdictional issues?


I found an alternate analysis. This analysis argues for the 2nd Amend. to apply to DC because it falls under federal jurisdiction. Notice, however, that he doesn't dispute what I've been claiming--that the BoR applied to the feds and that the 14th doesn't require the states to recognize all of the amendments.
Quote:
Just as important, Congress has plenary legislative authority over the nation's capital. That means the D.C. government, a creature of Congress, is constrained by the Second Amendment as much as the federal government itself. Yes, the 14th Amendment, ratified in 1868, requires the states to honor many -- but not all -- provisions of the Bill of Rights. Like the other nine amendments, the Second Amendment originally applied only to the federal government. Unlike many of the other amendments, the applicability of the Second Amendment to the states has not been resolved. Yet because D.C. is not a state and is controlled by Congress, that complex and widely debated question need not be addressed when D.C. law is challenged on Second Amendment grounds.
--http://www.law.com/jsp/article.jsp?id=1024079035166

So here the author arrives at an alternate conclusion than I, based on a different legal theory of how one interprets the status of DC as a non-state entity in the US. That's fine, and it's these variances of legal arguments that led me to not definatively state whether the USSC would agree or disagree with the minority opinion...even if her logic was sound.
__________________
"The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann

"You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman

Last edited by smooth; 03-14-2007 at 12:39 AM..
smooth is offline  
 

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360