James Leroy Wilson's blog

Wednesday, December 21, 2005

two new ones

I have two articles just posted.

Will Real Conservatives Become Democrats? is at the Partial Observer.

Ain't Nobody's Business What They Do is at LewRockwell.com.


  1. Anonymous9:07 AM PST

    I agree with most of the arguements in your article about the ID decision, but I am puzzled about a statement that you make about constitutional rights: "The states can't violate Constitutional protections that were never intended to apply to them in the first place . . "
    Do you mean that the framers of the constitution thought that the bill of rights protected americans only from the power of the federal government but that the states could limit, say, free speech or institute unreasonable searches with impunity? That is not my understanding of the purpose of the bill of rights. Am I wrong? Can you document what appears to be your interpretation of the bill of rights?

  2. I'm with you James in that the Bill of Rights restricts the ability of the federal government to act and not the ability of state governments. That's what the Founders wanted to create, the way I see it. But I'm having a devil of a time overcoming the 14th Amendment. I am relatively certain that the Radical Republicans WANTED to create a way for the federal government to intervene and restrict the actions of state governments.

  3. Wikipedia does a good job on its article on the Bill of Rights. It was understood at the time they were written that the Bill of Rights was a clarification of the limited powers of the new federal government, and did not remove any powers from the states except those the Constitution explicitly mentions. That's why the First Amendment begins "Congress shall make no law..." but doesn't say anything about state or local governments.

    In the 1925 decision Gitlow v. New York, however, "the Court ruled that the Fourteenth Amendment (which had been adopted in 1868) made certain applications of the Bill of Rights applicable to the states."

    This is really the bone of contention. I disagree that the 14th Amendment does such a thing, and it's a stretch to give credibility to this theory, called the "Doctrine of Incorporation" when it was invented nearly six decades after the 14th Amendment was ratified.

    My interpretation of the 14th Amendment can be found here.

  4. Good article, I remember reading it now. What about the view that the 14th Amendment creates a group of United States citizens. How do you respond to an argument based on the idea that the federal government has a say in how United States citizens are treated everywhere, both by the state governments and by foreign governments. The federal government is saying to the state governments, "These people are also United States citizens, and we won't allow you to treat them the way you are treating them." I suppose that the state government doesn't have to listen, but the federal government may be justified in taking some form of action to protect its citizens.

  5. I would say that the 14th Amendment gives power to Congress to enforce its provisions. If they want to take a broad reading, that's their Constitutional prerogative. Federal judges could then rely on federal law, and not their own fanciful notions of what the 14th Amendment should mean.

    But even if there was more Constitutional legitimacy toward intervening in local affairs, I would still generally oppose it. I would still feel that it "ain't our business what they do."