I asked this on the other thread, but what about Article VI, Clause 2?

Does that not establish the Constitution as the Supreme Law of the land? And wouldn't any Amendments automatically supersede state law or interests?

federal law and the federal Constitution are supreme where they conflict with state law.

The Bill of Rights did not apply to the states and thus there was no conflict to be resolved.

Nobody is questioning whether the Bill of Rights would apply to the states if they did apply to the states.

Throughout the process of Incorporation it has been held that the 14th Amendment secures a particular Bill of Rights right for an individual against her state government, and from that point the Supremacy Clause is clear and the contrary state laws are struck down.

That doesn't make sense. The Bill of Rights doesn't state anywhere that the rights are only designed to control the federal government. They are the first 10 Amendments or additions to the Constitution, which states in its original body that all of the laws herein supersede those of any state law.

I am trying to understand all of this, could you please give me some links which explain your contention that the Bill of Rights was not designed to be applied to the states? This is the first time I have ever heard this. We studied the Constitution extensively last year, including the Constitutional Congress, and this was never mentioned.

I am not doubting you (well, I am, sort of. But I am open to this new information), I have just never heard any of that before and I would have said I know more about the Constitution than the average American.

[div class='excerpt']The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

The states (those bodies who sent representatives to the convention) worried that the federal government would have too much power.

Just google Incorporation of the Bill of Rights and see where it leads. (But I would advise skipping "Yahoo Answers" for any political or constitutional question

It isn't a matter of my credibility. Neither you nor I were around in 1791. We are both limited to what we read.

And Incorporation is not taught well, perhaps because it is mostly irrelevant since (most of) the Bill of Rights does apply to the States today.

and have always been, legally A PART OF THE CONSTITUTION. They may as well be written on the same piece of paper. They are NOT separate documents floating in space.

The is no need to "incorporate" them into the Constitution. That happens the very second they are signed into law.

Are you sure you're not getting your info on the Constitution from FR or Prison Planet or their ilk??

The legislators who crafted the 14th amendment intended it to apply the bill of rights directly to the states, in whole.


[div class='excerpt']Will it be contended, sir, at this day, that any State has the power to subvert or impair the natural and personal rights of the citizen?

As citizens of the United States they have equal right to protection, and to keep and bear arms for self-defense.

Senator James Nye of Nevada, debates surrounding the 14th amendment. February 28, 1866

The "they" in Senator Nye's statement refers to the newly-freed slaves.


Various southern courts, and eventually the SCOTUS, decided to ignore that fact, and we ended up with selective incorporation.

That used the 14th amendment to apply the bill of rights to the states. 1920s.

has been very much right-by-right.

First it was established that they could apply to States, with that case being key.

But that they could did not mean they were... just that they could be Each right was dealt with over the better part of a century, and a few things in the BoR do not apply to states even today. (Like right to jury trial for civil cases)

A lot of key 1960s cases were Incorporation rulings, and the 2nd Amenment was only incorporated a couple of years ago.

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

You are saying you reject the OP, which is 2+2=4, because you don't like it?

The key elements of the OP are recitation of historical fact, not a matter of interpretation.

You are not entitled to your own facts.


http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

http://legal-dictionary.thefreedictionary.com/Incorporation+(Bill+of+Rights)

I did include the IANAL in my post, so be easy, eh?

If the BOR does not apply to the States, does that mean that a state could make an official religion? (Before the 14th Amend.)

If the amended Constitution does not apply to the States, just where does it apply? You say the federal government.

But when the Constitution says in Article VI that no religious test for office under the United States, can a State violate that?

Where does one draw the line? It seems like it's either all or nothing. Are you really suggesting that it 's nothing?

Either the thing applies in the States, or it applies nowhere. Don't Federal laws have to apply to the States, otherwise what use are they?

And don't the X and XIV Amendments nullify any claim such as in the OP?

Since when is the law of the land not the law of the land? Maybe I just don't get it. Sorry, but I am confused by this claim.

Thanks for the links. Will check them out.

Before the Civil War there were all sorts of amazing state laws, including religious tests for state office, mandatory sectarian prayer in state schools, state and city lists of banned books... double jeopardy was okay in state court in places.

I know this is surprising to people, but it's not my opinion or interpretation, just the history of American law.

Here's a good list of when different rights were applied to the states by federal court decisions:

http://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights#Specific_amendments

That is new to me. Interesting.

The bill of rights limited the federal government.

Even Amendment X is an abridgement of federal authority.

Every government power is the power to place a limitation on some citizen's rights. The power to tax is the power to place a limit on the enjoyment of property or income (income taxes were an excise tax). The power to levy a tariff is the power to limit an importers' property rights. The power to arrest is the power to limit a citizen's freedom.

To maximize the citizens' freedoms under natural law, you restrict government. By saying that every other power not listed in the Constitution belongs to somebody else is to limit the federal government and maximize rights. Amendment X is still all about limiting the feds.

(We can have another discussion about things like "human rights" and things like right to work, health care, etc. All of these make decisions about obligations and rights--"right to work" says you can't be compelled, as condition of employment, to pay to a union; it can be argued that a healthy labor movement requires limiting workers rights and transferring their authority to the union. A right to health care ultimately requires compelling others to turn over their property to pay for others' health care and will finally end in requiring that service providers lose control over their own privacy and free will when it comes to providing services--as a condition of employment, they have to help those that the government say they must help. These balance the rights of one group against the rights of another group. The Constitution was concerned with the rights of the population versus the powers of the central government.)

a 7-0 decision declared this

Except about the 14th Amendment.

The winning side did NOT pass it with the intention to do the things that the Supreme Court decided much, much later that it did.

Courts are "funny" that way. Our ancestors passed the 14th Amendment to ensure civil rights for the freed slaves, and to change the 3/5ths of a person clause of the Constitution.

They did NOT pass it with the intent of "Making it unconstitutional to pray or use the Bible in school" as the Supreme Court decided it did in 1947 with Everson vs. Board. Nobody was told at the time "If you pass this law, then it will mean the Bible cannot be used in school". If they had been told that, they would not have passed that law, or they would have modified it with a line like "No part of this Amendment shall be interpreted to mean that the Bible cannot be used in school, and this means YOU, Hugo Black."

Again, though, I have to say it, because some people will refuse to understand. I am NOT arguing pro or con on whether the Bible should be used in school.

What I am saying is that when we the people pass a law, it should do what we intended, and only that. No court, not even SCOTUS, should be able to decide that a "law passed for the purpose of doing A, B, and C" also requires "D, E, and F".

I'd be willling to propose that as an amendment.

by explaining the doctrine of incorporation. It's a concept that is rarely taught and is difficult for the layman to grasp.

I have been told I have fallen for Fox News bullshit, that I am spouting RW Fascist lies... Sigh.

You know this is basic stuff, like how a bill becomes a law, what year Pearl Harbor was, etc..

And I know that.

But not everyone does... obviously.

And, I would suggest, there is little reason for people to know. It isn't widely taught because it's like talking about how there used to be a pot-hole on 3rd Street that was filled in.

It is good for people to know and expect that the BoR today does (mostly) limit state and local governments as well as the federal.

But when a citizen wants to publish (which internet posting is) a history of the 2nd Amendment based on deduction they will sound like Saucer-kooks (on merit) if unfamiliar with Incorporation.

(In another thread I was informed by a person with "years of constitutional learning" that they had never heard of Incorporation, and thus knew it wasn't real.)

And it isn't vague. It's pretty black and white.

I'm surprised at how many people in that other thread were so set on ignoring facts.

One guy there called the simple statement of the fact that anyone can google in ten seconds "fascist" and another called it "Fox-News bullshit."

incorporation was discussed in Poli Sci 101 at my university. Granted, I didn't take learn it in depth until a take a Con. law class, but still the basic history of the American legal system should be taught to everyone.

eom

It is not very complicated.