April 2, 2013 at 4:21 pm #20599bwmooneyParticipant
Let me see if I can phrase my question properly.
Aside from explicit restrictions placed on States entering the Union, at what point did the Federal Government start applying the restrictions in the Constitution to State or local jurisdictions?
Now, let me elaborate. It’s my understanding that as originally drafted and subsequently ratified, was purely intended to proscribe the boundaries of the Federal government and limit its powers. Aside from explicit things like requiring a republican form of government to enter the Union, the various States were free to exercise any powers not explicitly forbidden them (e.g., to make treaties with a foreign nation). Thus the Bill of Rights was a restraint only upon Congress, and the various States could pass laws restricting free speech, firearms, religion or the expression thereof, etc. as long as these laws did not violate their own internal state constitutions and respective bills of rights, which fortunately most states had either separately or had incorporated directly into their respective state constitutions.
Yet somehow, today, we regularly hear that this state law or that local ordinance is “unconstitutional.” I can give specific examples for freedom of speech, religion, the press, assembly, firearm ownership, etc. At some point this concept of the Constitution applying only to the Federal government, with notable exceptions, was abandoned in favor of it being a universal “law of the land?” This certainly fits with the shift from a federal form to a de facto national form of government if not in name.
Having listened to the US Constitution and History to 1877 lectures so far, the best I can figure is that the Yazoo land scandal was probably the first step in that direction and the subsequent 14th amendment more explicitly appropriates what was formerly a power of the individual states. Yet I don’t really understand the argument that the Second amendment, for example, applies to state laws as well as federal, or that the US Supreme Court has jurisdiction over state laws in such cases. It seems inconsistent.
I am looking purely at the legal argument, not the natural rights argument, such that when I get into a discussion with a person who favors gun control I can maintain a logically consistent and principled argument. Same for when I’m discussing “free speech zones” or whistleblowers with someone else. Would I be better off referring to my own State’s constitution (Arkansas, in my case)?
It strikes me that, at some level, by carrying on a national level discussion over the actions of various states, perhaps we are reinforcing the concept of a national government rather than a federal one. In other words, when should we resort to “that’s an issue left to the states to decide for themselves.” Especially since our now national government seems to be deciding everything.April 2, 2013 at 9:27 pm #20600Brion McClanahanMember
“Having listened to the US Constitution and History to 1877 lectures so far, the best I can figure is that the Yazoo land scandal was probably the first step in that direction and the subsequent 14th amendment more explicitly appropriates what was formerly a power of the individual states.”
You answered your own question. Fletcher v. Peck in 1810 was the first instance of a state law being invalidated by the SCOTUS. In fact, John Marshall swore at the VA Ratifying Convention in 1788 that the SCOTUS would never invalidate a State law unless it conflicted with Article 1, Section 10. He lied. The 14th Amendment was not supposed to incorporate the BOR, but it has been argued it did; Madison himself attempted to insert an incorporation amendment into the BOR but he was rejected. Very few members of the founding generation thought it was necessary or wise to have incorporation.
As to your last point, you are also correct, but we are talking baseball and the nationalists are blitzing with their linebackers. I know we have bats, but they wear pads and helmets. With the current de facto unitary construct of the central government, it has become precedence to make everything a national issue. It will take time and perseverance to correct that.April 3, 2013 at 2:46 pm #20601jathrinthoyanMember
Building on this, you may or may not have heard that North Carolina’s new “Establishment of Religion” bill is being used by the Nationalists to demonize those of us who support the tenth amendment and nullification.
I am aware that certain colonies did have state religions(like Massachusetts), so how do we deal with the argument from progressives who see everything as a national issue and just salivating at the chance for the supreme court to strike down a state law?April 4, 2013 at 6:17 am #20602gutzmankParticipant
By “certain colonies,” you mean “all of the colonies except Rhode Island, Pennsylvania, New Jersey, and Delaware.”April 4, 2013 at 1:10 pm #20603jathrinthoyanMember
Thanks for the clarification. So how can we counter the argument that state nullification is being used to restrict the bill of rights?April 4, 2013 at 1:14 pm #20604gutzmankParticipant
The right to decentralized government — to decide most political questions through local legislative elections — is part of the Bill of Rights. Refer people to the 10th Amendment. This was, after all, the cause of the Revolution.
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