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Old 04-04-2018, 07:28 PM
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bluewpc (Offline)
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staff has removed the opening paragraph - personal attack

So ostensibly this thread advocates the repeal of the 14th amendment for the purposes of reducing the federal government and thereby returning power to the states and presumably to the people. He doesnt actually say people in the initial post but thats the charitable reading but this also is undermined later and well get to that. The actual title of the thread is to restore X, by which he means the tenth amendment which states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Now if we take what he himself has stated and here we quote exactly what he wants:

The 14th amendment is rescinded
Citizens still have their rights, including suffrage.
People born on land to non US citizens are not citizens.

Now when it is pointed out that this amendment has no relation to 'restoring' the tenth amendment because the power of naturalization is clearly spelled out in S8.4 A1 of the constitution his response is:

Article 1 can state that, but is that current judicial practice.

That line undermines his entire argument. Supposedly hes advocating for a strict constitutional reading (nevertheless erroneous in this case) but in the instant that strict reading comes into conflict with his true and ulterior motive he performs a bait and switch. Now its not about constitutionality but about judicial practice which is nevertheless irrelevant to the question.

Which leads me to my second point. His argument already destroyed by his own hand he further reveals himself through the mention of Hugo Black whom he does not identify other than to vaguely disagree with [his],

"incorporated the 14th amendment to apply some of the amendments referred to as the Bill Of Rights against the states.["]

Now he never defines incorporation or explains his opposition to it so let me define it now and give the briefest of histories to the justice. Hugo Black was a Justice who served on the Supreme Court. He hailed from Alabama. He argued for total incorporation of the bill of rights. Now this is the thing Mo decries.

Now the specific definition of incorporate germane to the constitution is that the bill of rights are applicable to the states. This means that the states have to respect the rights afforded citizens by the federal government. Without incorporation the states are free to abridge your speech, refuse you guns, compel you to testify against yourself, seize your property without just compensation etc. Justice Black in his dissent to Adamson V. California lists a number of such cases. His dissent can be read here

Notable excerpts:

This decision reasserts a constitutional theory spelled out in Twining v. New Jersey, 211 U.S. 78, that this Court is endowed by the Constitution with boundless power under "natural law" periodically to expand and contract constitutional standards to conform to the Court's conception of what, at a particular time, constitutes "civilized decency" and "fundamental liberty and justice."

After the Slaughter-House decision, the Court also said that states could, despite the "due process" clause of the Fourteenth Amendment, take private property without just compensation, Davidson v. New Orleans, 96 U.S.[p79]*97, 105; Pumpelly v. Green Bay Co., 13 Wall. 166, 176-177; abridge the freedom of assembly guaranteed by the First Amendment, United States v. Cruikshank, 92 U.S. 542; see also Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543; Patterson v. Colorado, 205 U.S. 454; cf. Gitlow v. New York, 268 U.S. 652, 666 (freedom of speech); prosecute for crime by information, rather than indictment, Hurtado v. People of California, 110 U.S. 516; regulate the price for storage of grain in warehouses and elevators, Munn v. Illinois, 94 U.S. 113.

At the same time that the Twining decision held that the states need not conform to the specific provisions of the Bill of Rights, it consolidated the power that the Court had assumed under the due process clause by laying even broader foundations for the Court to invalidate state and even federal regulatory legislation. For, under the Twining formula, which includes nonregard for the first eight amendments, what are "fundamental rights" and in accord with "canons of decency," as the Court[p83]*said in Twining, and today reaffirms, is to be independently "ascertained from time to time by judicial action. . . ." Id. at 101; "what is due process of law depends on circumstances." Moyer v. Peabody, 212 U.S. 78, 84. Thus, the power of legislatures became what this Court would declare it to be at a particular time independently of the specific guarantees of the Bill of Rights such as the right to freedom of speech, religion and assembly, the right to just compensation for property taken for a public purpose, the right to jury trial or the right to be secure against unreasonable searches and seizures.

In Palko v. Connecticut, supra, a case which involved former jeopardy only, this Court reexamined the path it had traveled in interpreting the Fourteenth Amendment since the Twining opinion was written. In Twining, the Court had declared that none of the rights enumerated in the first eight amendments were protected against state invasion because they were incorporated in the Bill of Rights. But the Court in Palko, supra, at 323, answered a contention that all eight applied with the more guarded statement, similar to that the Court had used in Maxwell v. Dow, supra, at 597, that "there is no such general rule." Implicit in this statement, and in the cases decided in the interim between Twining and Palko and since, is the understanding that some of the eight amendments do apply by their very terms. Thus, the Court said in the Palko case that the Fourteenth Amendment may make it unlawful for a state to abridge by its statutes the
freedom of speech which the First Amendment safeguards against encroachment by the Congress . . . or the like freedom of the press . . . or the free exercise of religion . . . or the right of peaceable assembly . . . or the right of one accused of crime to the benefit of counsel. . . . In these and other situations, immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered[p86] liberty, and thus, through the Fourteenth Amendment, become valid as against the states.

Divining his intentions beyond this point becomes somewhat muddled and from here were forced to speculate but since the argument up to this point has been duplicitous its understandable if we assume the worst. If we go back to exactly what he states:

The 14th amendment is rescinded
Citizens still have their rights, including suffrage.
People born on land to non US citizens are not citizens

The motive becomes clear he does not want non-citizens to be able to have children who are citizens. Theres a problem with his second statement though too because we also know that he is against incorporation which would allow courts to abide by natural law in which case they could deny at will rights to individuals whether they are citizens or not.

In such an instance it is all too apparent how an underclass, already extant, would become more vulnerable to exploitation because all pretense of due process or any right whatsoever would be denied them. In this case the judicial branch approaches omnipotence because they can decide the scope of laws, afford and deny rights however capriciously.

Another note, perhaps telling, is that as he wishes it the citizens have yet their rights but can still be deprived of them.

This is what concerns me and I may venture to say concerns others.

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Last edited by Mohican; 04-06-2018 at 01:58 PM..
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