MCViewPoint

Opinion from a Libertarian ViewPoint

Posts Tagged ‘14th Amendment’

Judicial Review? No. Nullification | Abbeville Institute

Posted by M. C. on February 24, 2021

https://www.abbevilleinstitute.org/blog/judicial-review-no-nullification/

By Earl Starbuck

“Acts of congress, to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity.” -St. George Tucker

“There is no danger I apprehend so much as the consolidation of our government by the noiseless, and therefore unalarming instrumentality of the Supreme Court.” -Thomas Jefferson

As a pro-life Jeffersonian, I am constantly frustrated by the endless line of pro-life activists who talk about the Supreme Court overturning Roe v. Wade.[1] There are multiple reasons this irks me. For one thing, the Supreme Court will never overturn Roe because its members are dedicated to the preservation of precedent. Add on top of that the absurd kangaroo courts that Senate confirmation hearings have become, with their character assassinations and incessant prattling about the vital importance of Roe, and it’s clear that the potential Justices are being reminded not to tread on that particular landmine if they wish to be confirmed. The brutal character assassination of Robert Bork is ample evidence of this, as are the farcical witch-hunts against Clarence Thomas and Brett Kavanaugh.

My other objections to this pro-life reliance on Federal Courts are constitutional and practical. To begin with, accepting the Incorporation Doctrine (the legal justification for Roe and its descendants) means accepting the idea that the 14th Amendment incorporates the Bill of Rights against the State governments, including the implied right to privacy and the subsequent right to obtain an abortion. The legal and historical problem with this is that the Bill of Rights was never intended by the Founding Fathers to be applied to the States.[2] There were two primary arguments against the Bill of Rights. The first of these (advanced by men like Roger Sherman, Hugh Williamson, and Theophilus Parsons) was that, since the States already had their declarations/bills of Rights, and since Congress had been given no authority to infringe upon them, a Federal Bill of Rights would be redundant and unnecessary, and might even undermine the sovereignty and authority of the States. 

The second reason for objecting to the Bill of Rights had to do with its length and scope. Enumerating all of the rights protected would be impossible, and therefore would result in an implied surrender of whichever rights they forgot to explicitly protect in the Bill of Rights. Moreover, why say that the government can’t do something (like restrict freedom of speech or the press) if the government hasn’t been granted that power to begin with? (James Wilson and Alexander Hamilton presented these arguments; Hamilton’s is easily found in Federalist Essay #84).

See the rest here

About Earl Starbuck

A native of East Tennessee, Jake Starbuck is an independent historian and a descendant of soldiers on both sides of The Late Unpleasantness and of Governor John Sevier. His father, who was a member of the Sons of Confederate Veterans, taught him to love history and the South. Starbuck holds a BA in History and Political Science from Carson-Newman University and an MA in History from Liberty University. He has no connection to the coffee company. More from Earl Starbuck

Be seeing you

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »

The First Freedom – LewRockwell

Posted by M. C. on June 18, 2020

“Our troubled world continues along its current revolutionary path with no clear idea as of yet just how far the diabolical disorientation that has been unleashed may go. One thing and one thing alone seems definite to me in the midst of the general uncertainty. With a few very notable exceptions, the leadership of our beloved Church, legitimate though that leadership is, has proven itself to be utterly subservient” to the state.

It was not the governors who shut the churches; it was — with some courageous exceptions — the gutless American Catholic bishops who did so.

https://www.lewrockwell.com/2020/06/andrew-p-napolitano/the-first-freedom/

By

Here is a pop quiz on the Constitution. What is the first freedom protected by the Bill of Rights? If you guessed speech or press, then you are close. The first protected freedom is religion. The two religion clauses in the First Amendment keep the government out of our pockets for religious purposes and out of our churches for all purposes. That was, at least, the intent of the framers.

The tyrannical behavior of many state governors, who have issued executive orders purporting to regulate private behavior on private property — even religious behavior in houses of worship — and in the process have enforced these orders as if they were laws, has ignored this. In America, governors do not write laws; only legislatures do. There are no pandemic or public health or emergency exceptions in the Constitution.

Here in New Jersey, Catholics were permitted — permitted — to attend public Masses last Sunday for the first time in 88 days.

This has deeply troubled many of the faithful, and many non-adherents, who understand the concepts that only legislatures write laws and that no legislature can write a law telling a religious institution when and how to permit worship.

So, who closed all the houses of worship? Why did Catholic bishops dispense with a nearly 1,600-year-old rule — which survived all sorts of wars and pestilence — requiring attendance at Sunday Mass? What became of the wall of separation?

Here is the backstory.

When first-year law students are asked the meaning of the Establishment Clause and the Free Exercise Clause in the First Amendment, they often argue that these clauses mandate a wall of separation between church and state. Some students even offer to find the “wall of separation” language in the Constitution. They are still looking for it.

While it is accurate to use the wall of separation phrase, it is nowhere in the Constitution or in any federal statute. It was first publicly used in an 1802 letter from President Thomas Jefferson to a congregation of Baptists in Danbury, Connecticut. The congregation had written to Jefferson complaining that Connecticut was taxing all landowners to pay for the state-supported Congregationalist Church.

They told him that the state regarded their religious freedom as a privilege to be doled out, rather than as an inalienable right as the congregation believed it to be and as he had characterized it and other rights in the Declaration of Independence.

Jefferson understood the values underlying the religion clauses of the First Amendment to mean that while only Congress was prohibited from establishing a church or interfering with worship, the states should not do so either. In his famous letter, he opined that the First Amendment erected “a wall of separation between church and state.” To Jefferson, the word “state” in that context meant all governments.

Though the imposition of state taxes to support churches ended during the 19th century, it wasn’t until 1947 that the Supreme Court ruled with clarity that the First Amendment — the language in which only restrains Congress — applies to the states as well.

We know that it does because the 14th Amendment prohibits all states from abridging the privileges or immunities of citizens of the United States. The phrase “privileges or immunities” connotes attributes of national citizenship — first among which are a prohibition on government establishing a religion or interfering with its free exercise.

Stated differently, the right to worship or not, and the right not to be charged for someone else’s worship, are personal human rights — as Jefferson called them, inalienable rights.

Now, back to the governors and the bishops.

The governors permitted crowds at Walmart and arrested folks for attending funerals. They permitted thousands of demonstrators in public streets and arrested not one of them for marching without masks or not socially distancing.

My friend Professor John Rao of St. John’s University wrote: “Our troubled world continues along its current revolutionary path with no clear idea as of yet just how far the diabolical disorientation that has been unleashed may go. One thing and one thing alone seems definite to me in the midst of the general uncertainty. With a few very notable exceptions, the leadership of our beloved Church, legitimate though that leadership is, has proven itself to be utterly subservient” to the state.

It was not the governors who shut the churches; it was — with some courageous exceptions — the gutless American Catholic bishops who did so. Never before in the history of America has the Church become an arm of the state. The governors told the bishops to close their churches, and they complied. Their predecessors were martyrs. They are cowards.

That is not rendering to Caesar what is Caesar’s. That is rendering to Caesar what is God’s.

Faithful Catholics believe that we consume the Bread of Life at Mass. The bishops have no more moral right to deny us that salvific sacrament than do the governors. Faithful Catholics also believe that Holy Mother Church is the route to eternal salvation and the Bread of Life is the food for that route. What mother would deny her children food? One in the hands of state-subservient bishops.

When the Supreme Court explained the two religion clauses, it ruled that they prohibit both conspicuous governmental aid to religion and all government interference with it, and all excessive entanglement between church and state.

In another time and place, how different this might have been. One hundred years ago, the Church was outlawed in Mexico and militias hunted down priests. Saying a public Mass then was the functional equivalent of a capital offense. Yet, there were more Masses celebrated for the faithful per day in Mexico in those years than in America in the last 88 days.

The wall of separation insulates our religious beliefs and practices from governmental tyranny. But without episcopal fidelity and courage, the wall crumbles.

Be seeing you

 

 

 

Posted in Uncategorized | Tagged: , , , , | Leave a Comment »

The Incorporation Doctrine Broke the Constitutional System | | Tenth Amendment Center

Posted by M. C. on June 11, 2020

The BIll of Rights Was Never Intended to Apply to State or Local Governments

The application of the Bill of Rights to state and local governments was not a feature of the original constitution. It came about through a series of federal court cases based on the 14th Amendment.

https://tenthamendmentcenter.com/2020/05/30/the-incorporation-doctrine-broke-the-constitutional-system/?fbclid=IwAR3PT549ncYVFvDfJDANg-V9mVTx4USDc2WyM0r3kX-RkVbDRHcjO2CZxPA

By:

I think centralizing power is always a net loss for liberty. So did the founding generation. This is why the framers of the Constitution emphatically rejected a proposal to give the federal government veto-power over state laws. It’s also why the first Congress rejected applying some provisions of the Bill of Rights to the states.

When I say this, it tends to confuse people because, in today’s political system, the federal government vetoes state laws all the time through federal courts. And virtually every time somebody perceives that a state government has violated their rights, they run straight to federal courts to stop the offending state action.

Despite my protests, the application of the federal Bill of Rights to the states has become a key feature of the American political system.

As I said, I believe this will ultimately prove to be a net loss for liberty. When you turn to federal courts to protect your liberty from state actions, you’re playing a game of Russian roulette with five bullets loaded into your six-shooter. Despite a few minor victories here and there, federal courts almost always come out with opinions that expand government power, not protect individual liberty. And these expansions of government power become the law of the land across the entire United States. In a decentralized system, bad state court decisions only impact the people in that one state.

The risk isn’t worth the reward.

And yet here we are.

Among friends of liberty, you will find a great deal of support for using federal courts to stop states from violating individual rights. Despite my misgivings, I can understand the impulse. When we see state governments trampling rights, we want somebody to step in. The feds are more than happy to step. Why not take advantage of their service. But if you’re going to support the enforcement of the federal Bill of Rights on state and local governments, you need to understand where this purported power comes from and its implications on the American constitutional system.

The BIll of Rights Was Never Intended to Apply to State or Local Governments

The application of the Bill of Rights to state and local governments was not a feature of the original constitution. It came about through a series of federal court cases based on the 14th Amendment.

A lot of people believe that the Bill of Rights always applied to state governments. This is simply not true. The Bill of Rights was never intended to bind the actions of state governments.

The preamble to the Bill of Rights makes its purpose absolutely clear: to further restrict federal government power.

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 ensure the beneficent ends of its institution. [Emphasis added]

The words “its powers” clearly refer back to the Constitution. The Bill of Rights was intended to “prevent misconstruction or abuse” of the Constitution’s powers as exercised through “the government” – the federal government. Notice the word “government” is not plural.

The preamble of the Bill of Rights makes no mention of limiting the power of state governments. The state ratifying conventions had no intention of restricting their state’s own powers. They already had state constitutions to do that job.

This is an undebatable fact  — no founding-era evidence exists that Congress or the state ratifiers intended for the protections included in the Bill of Rights to bind state governments. None.

Doing so would have essentially created a federal veto over state laws. As I’ve already said, this idea was rejected during the framing of the Constitution. It would have allowed for a massive expansion of central government authority – the exact opposite of the stated purpose of including a bill of rights.

The Incorporation Doctrine

The federal courts enforce the Bill of Rights on the states today through a legal framework known as the incorporation doctrine.

In a nutshell, the Supreme Court invented the incorporation doctrine through the 14th Amendment. It relies on a dubious legal principle called “substantive due process,” invented out of thin air by the court more than 50 years after the ratification of the amendment.

There is some basis to argue that the 14th Amendment was intended to incorporate the Bill of Rights onto the states. The operative clause of the amendment reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” The question is: are the provisions of the Bill of Rights included in the 14th Amendment’s “privileges and immunities?”

In my educated opinion, the answer is no. The 14th Amendment was intended to constitutionalize the Civil Rights Act of 1866. This was asserted over and over again both in the congressional debates and as supporters presented the amendment to the states. The civil rights act specifically enumerates the privileges and immunities that were to be protected. (The privileges and immunities listed in the Supreme Court case Corfield v Coryell were also mentioned in debates.) They include the right to enter into contracts, own property, inherit property, travel freely and access to the courts. The act made no mention of the Bill of Rights.

In fact, in the 1873 Slaughterhouse case, the U.S. Supreme Court rejected the idea that the privileges and immunities clause in the 14th Amendment applied the Bill of Rights to the states.

Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?

We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

This is why the Court later made up the concept of “substantive due process” to justify incorporation. The previous Court had closed the door on basing it on the more logical privileges and immunities clause.

I admit there exists some evidence that undermines my view on incorporation through the privileges and immunities clause. But the concept of substantive due process is every bit a product of “living breathing” constitutional interpretation as any progressive Court opinion conjured up during the New Deal.

Regardless, incorporation is now the law of the land and is ensconced in the legal system. You can try to use the federal courts to protect your rights from state governments if you choose. But you should at least understand how the idea evolved and what it has done to the constitutional system.

Incorporation Breaks the Original Constitutional System

The founding generation warned us over and over again about consolidating the states into a single national government. It was the greatest fear voiced by opponents of the Constitution during ratification and was a prime reason for the inclusion of the Bill of Rights.

During the Massachusetts ratifying convention, delegate Fisher Ames asserted that “a consolidation of the States would subvert the new Constitution.” And during the Virginia ratifying convention, Patrick Henry warned, “Consolidation must end in the destruction of our liberties.”

“When he asks my opinion of consolidation, of one power to reign over America with a strong hand, I will tell him I am persuaded of the rectitude of my honorable friend’s opinion, (Mr. Mason,) that one government cannot reign over so extensive a country as this is, without absolute despotism. Compared to such a consolidation, small confederacies are little evils; though they ought to be recurred to but in case of necessity.”

Supporters of the Constitution didn’t defend consolidation. They acknowledged its danger and swore it would never happen. In Federalist #32, Alexander Hamilton wrote:

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

The incorporation doctrine did what Hamilton promised wouldn’t happen. It effectively obliterated state sovereignty and consolidated the state into a single national government.

Whether legitimate or not, the incorporation doctrine made real the founders’ worst fears. Using federal courts to police the states and enforce the Bill of Rights fractured the original constitutional structure, broke the Tenth Amendment and effectively consolidated the states to be ruled by an oligarchy of federal judges.

You can’t simultaneously support incorporation and the original Constitution. They are hopelessly at odds.

Be seeing you

 

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

My Corner by Boyd Cathey BIRTHRIGHT CITIZENSHIP and the Future of America

Posted by M. C. on August 28, 2019

http://boydcatheyreviewofbooks.blogspot.com/

Friends,

Kamala Harris is very angry with Donald Trump.

With her usual condescension and scorn, she tweeted out on Thursday, August 22, that Donald Trump should go read the 14th Amendment—the implication being that when the president brought up, once again, the possibility that he might issue an Executive Order regulating birthright citizenship, he was woefully misreading the application of that Reconstruction amendment.

Of course, for a supercilious Leftist elitist like Harris, Trump will forever be that ignorant, brash, illiterate, racist New Yorker who is just way out of his league. It doesn’t really make any difference that he graduated with a B.S. in Economics from the prestigious Wharton School of Business at the University of Pennsylvania. You see, he doesn’t have all the fineries and veneer of the self-proclaimed East Coast-West Coast Brahmin Elites who have controlled this country, its economy, its foreign policy, and its government for more than a century. Despite the fact that he has—in my view—given in far too often to those same Elites, nevertheless, they will only accept 100% obedience and compliance. Upsetting the apple cart, thwarting the advance of globalism in the slightest will get you—the Russia Hoax, the White Nationalist/Racist Hoax, the Gun Control Hoax, endless investigations and multiple mini-impeachment efforts, plus the extreme and active (even violent) hostility of almost all the media, academia, Hollywood, and the political class.

You can’t get off the Deep State reservation, even a hare, and expect any mercy.

So, when once again the president declared that his administration was looking into ending “birthright citizenship” through a presidential Executive Order—something he had suggested back in October of 2018—all hell broke loose, and the officious and ideologically crazed Harris jumped like a famished black snake on a defenseless toad. Once again it was the Trump template of “full blown racism,” “appeals to white supremacy,” “undermining and attacking our democracy,” and, of course, since Trump is an illegitimate president, an interloper—then almost any type of resistance is permissible.

What such an Executive Order would do is clarify the application of the 14th Amendment and, essentially, end birthright citizenship for children of illegal aliens who come across the US border and then produce offspring who, then, as if by magic become American citizens.

Recall that the amendment was enacted after the War Between the States to guarantee the rights of citizenship to manumitted slaves and their offspring. And, indeed, there is a serious legal question about whether the amendment itself was ever legally and legitimately ratified. But be that as it may, it has applied ever since 1868.

Here is how Section 1 of the 14th Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Harris and other open border zealots always quote the first section: “All persons born or naturalized in the United States…are citizens of the United States and of the State wherein they reside.” But the leave out, either by mistake or by direction: “and subject to the jurisdiction thereof.”

It’s a key phrase, critical to understanding what the authors of the amendment intended and what for nearly 100 years was settled law up until the 1960s when leftist lawmakers got into the act simply by de facto practical applications. In other words, between the very clear and forthright intention of its authors that the 14th Amendment only applied to slaves and their offspring born in the United States who are necessarily “subject to the jurisdiction thereof,” and the imposed practice we now have which enables a foreign woman to illegally slip across the Rio Grande and have a child who then, by that simple act, becomes a citizen and an “anchor baby,” permitting its illegal relations to all come across—between these two interpretations and applications there is an absolute irreconcilable difference.

The key figures in drafting the amendment at the time were clear: Senator Lyman Trumbull, pivotal in the drafting the 14th Amendment, declared “subject to the jurisdiction” meant subject to “complete” jurisdiction of the United States, and “[n]ot owing allegiance to anybody else.” Senator Jacob Howard of Michigan, responsible for the critical language of the jurisdiction clause, stated that it meant “a full and complete jurisdiction,” that is, “the same jurisdiction in extent and quality as applies to every citizen of the United States now.” In other words, a non-citizen simply by giving birth on this side geographically of the Rio Grande does not produce a new citizen of the United States.

Presented with this history, those defending the current practice, including Judge Andrew Napolitano on Fox, appeal, like Harris, to constitutional practice and to the courts.

But, actually, the Supreme Court has spoken on this question, at least indirectly.

In 1884, sixteen years after the 14th Amendment was ratified, John Elk, an American Indian, went to court to argue that he was an American citizen due to his birth in the United States. In Elk v. Wilkins, 112 U.S. 94, the Supreme Court ruled that the 14th Amendment did not grant Indians citizenship. As Ann Coulter cites that decision:

[The] “main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free negroes and to put it beyond doubt that all persons, white or black … should be citizens of the United States and of the state in which they reside.”

And she adds: “American Indians were not made citizens until 1924. Lo those 56 years after the ratification of the 14th Amendment, Indians were not American citizens, despite the considered opinion of Judge Napolitano.”

Ending birthright citizenship, based on a false and specious reading of the 14th Amendment, is an idea whose time has come, in fact, is far overdue. At the very least, an Executive Order would force the courts, including the Supreme Court, to take a serious look at the historic abuse of our immigration system and the definition of American citizenship.

Let us hope that this time—nearly a year since he raised it—President Trump will follow through on his consideration: birthright citizenship has been and is an Achilles’ Heel in American immigration policy. Ending it would be a major step in securing our border and preserving the integrity of our culture.

**************

I believe I passed on to you last year the following legal essay by Professor of Law, John Eastman. It is a succinct but thorough restatement of the points made in my commentary:…

Be seeing you

La-Raza-Founder (1)

…from the USA

Posted in Uncategorized | Tagged: , , , | Leave a Comment »

The Reasons Behind The Relentless Ideological Onslaught – LewRockwell

Posted by M. C. on April 5, 2019

https://www.lewrockwell.com/2019/04/no_author/the-reasons-behind-the-relentless-ideological-onslaught-against-free-markets/

By Brandon Smith
Alt-Market.com

…The suppression of free markets began in the aftermath of the Civil War and the passage of the 14th Amendment, which was intended to protect the citizenship rights of former slaves, but was instead used as a legal loophole by the elite to establish what we now know as “corporations”.

Corporations are defined by their corporate charter, which is granted by the government, as well as their “corporate personhood” derived from the exploitation of the 14th Amendment. Corporate personhood allowed for limited liability as well as many other government protections. Unlike partnerships, leaders of corporations cannot be prosecuted for many crimes if those crimes were executed by “the company”. The company can be sued as a “legal person” in civil court, or fined by the government, but in general CEO’s and major shareholders are protected from any consequences even if they were directly involved in the commission of a crime.

This relationship between government and corporations has become so egregious that today these monopolies receive special legal protections and immunity from some civil lawsuits, aid in the form of taxpayer funded welfare, massive tax cuts which smaller businesses and less connected corporations do not enjoy, and even central bank bailouts which keep them afloat. Major corporations are not allowed to fail, and no one is allowed to compete with them on a level playing field.

This is the exact antithesis to free markets. This is socialism. Yet many socialists point the finger at free market “capitalism” as the source of all our economic problems. This is impossible, because free markets on a level any higher than local trade do not exist today and have not existed for at least a century…

There is a group of people that do behave in a destructive way automatically or instinctually when engaging in commerce without regulation, and these people have become a fascination of mine. They are narcissistic sociopaths; the defining characteristic of most financial and political elites.

I have outlined the facts surrounding narcissistic sociopaths in numerous articles, and I recommend readers study these for greater details. To summarize, full blown narcissistic sociopathy is a psychological aberration present in around 1% of any given population from birth. That is to say, in most cases these people are not created by their environment. Many of them come from very balanced and sheltered childhoods. They are born the way they are.

Narcissistic sociopaths are a tiny portion of the population, but lacking any sense of empathy or conscience, they account for a vast percentage of all crimes committed in society. They also gravitate to positions of power and influence from the business world to politics…

I agree with Adam Smith in the idea that normal citizens will act to pursue success, but also to pursue balance. When given the opportunity to actually function within a true free market, most people are not going to destroy their surrounding environment and resources in some mad dash for gain. Why? Because it is in their self-interest not to. They know that if they abuse the structures around them they will lose their source of commerce. They know that if they ruin the system for others that they will be shunned in business. They also know that if they fail in such a spectacular manner and commit criminal sabotage of the free market system they will have to suffer the regret and shame that will follow.

The only factor that this does not apply to are the elites themselves; the narcissistic sociopaths devoid of conscience with whom we now contend for our freedoms. I would suggest that Smith’s free markets, unshackled from centralization and government interference, would function almost perfectly if these people were cut from the equation entirely.

Be seeing you

What is free market? definition and meaning ...

 

 

 

Posted in Uncategorized | Tagged: , , , , , | Leave a Comment »