February 09, 2006

ACLU vs the Constitution

In 1787, the Congress of the newly formed United States met to discuss changes in the Articles of Confederation. What resulted was a complete redrafting of the Constitution under a Federalist system. The new document contained 7 Articles outlining the duties and responsibilities of the federal government. It was written very specific on certain issues to clearly define the duties and restrictions of the federal government. It was written vague on other issues as to leave enough uncertainty that the matter should be defined by the individual states.

Some of the original signers of the Constitution actually refused to sign it. When a guarantee was made that if they would sign the document to be referred to the people for ratification, the first order of business would be to write a "Bill of Rights" defining individual rights of the people.

It then it became a responsibility of those who were stressing the federalist government to sell the American people on the idea. From this came the Federalist Papers which were written in order to be reassurances to the people that they would have specific rights and the government would be limited in scope.

Then as promised, the first Congress took up the matter of adopting a "Bill of Rights". Ten Amendments were written into our founding document which outlined specific rights and limitations on the government. The catch all of these rights as defined by our first Congress was the 9th and 10th Amendments.

Amendment IX.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X.

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.

In opposition to this new "Bill of Rights" was our first Secretary of the Treasury, author of several of the Federalist Papers, and member of the Constitutional Convention, Alexander Hamilton. He said in Federalist 84,

I...affirm that bills of rights...are not only unnecessary...but would even be dangerous. They would contain various exceptions to powers, which are not granted; and on this very account, would afford colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?

I doubt that Hamilton would fully understand exactly how prophetic this actually was.

And everything was fine until the Civil War. In the wake of the war, while it was still being fought as a matter of fact, several more Amendments were added outlawing slavery within the Union and conferring the full rights and benefits of citizenship to the newly freed slaves. The most prominent of which was the 14th.

Amendment XIV.

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.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,4 and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Fast forward to the twentieth century and Justice Hugo Black and other liberal activists on the court under the spell of the newly formed American Civil Liberties Union. It then became fashionable to attempt to apply the restrictions and requirements that the Bill of Rights holds the federal government to on the states.

Robert S. Sargent, Jr wrote in his essay about Hugo Black the following:

In 1868, in order to protect ex-slaves, the 14th Amendment did apply certain rights that the states couldn't intrude upon: "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." Somehow Hugo Black, in his dissent in Adamson v. California (1947) found this to mean that all the rights enumerated in the Bill of Rights applied to the states: "My study of the historical events that culminated in the Fourteenth Amendment...persuades me that one of the chief objects that the provisions of the Amendment's first section were intended to accomplish was to make the Bill of Rights applicable to the states." One must ask, if this was one of the "chief objects," why didn't they put it in the text? (For a scholarly, devastating refutation of this interpretation of "the original purpose," see Raoul Berger's book on the 14th Amendment, "Government by Judiciary.")

This concept of "Incorporation Theory" goes against the idea of federalism envisioned in the Constitution. Now that Justice Black's dissent is accepted jurisprudence, state laws can be reviewed in federal court, which means that the Supreme Court now decides what our rights are. The 9th Amendment in its original sense is now irrelevant.

And the culmination of this happens in 1973. In the Roe v Wade decision, the court decided that a medical procedure regulated or banned under state law was not valid because it did not protect a woman's right to privacy in what happens to her body. In other words, the Warren court decided that a state law, in a state matter, was invalid because it did not protect the privacy of the individual.

Privacy - I can't find it in the Constitution anywhere. The ACLU claims that it's there. Some liberal Senators would have you believe that it is there, but I can't find it. The words right to privacy do not exist in any of the 7 Articles or 26 Amendments of the Constitution. Neither is federal regulation of medical procedures. But under the Hugo Black mentality and approach to applying the restrictions and powers of the federal government to the states and making state laws subject to federal review, has now greatly expanded the reach of the federal government.

And if we can expand the federal government to so that states laws are reviewable in the federal judiciary, why not expand the reach of the Establishment Clause. And as such, the ACLU in its arguments have consistently tried to apply the restriction on the Congress of the United States to the individual states and local governments.

Hamilton was right.


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Posted by: Ogre at 05:08 PM | Comments (5) | Add Comment
Post contains 1476 words, total size 9 kb.

1 That has to be one of the most assinine posts I've ever read. First of all, Justice Scalia even admits that there is a right to privacy. Because yo obviously don't understand the law, you should probably talk about something you do know. Besides other glaring falsities I think you should probably get the dunce of the year award for your comment that Roe v. Wade was the culmination of this movement. Yeah, there definately has been a change in the courts, but it certainly culminated well before that. I would mention the cases in which privacy rights were found, but it is obvious that you wouldn't be able to understand what they stood for. Just for giggles you should probably read Griswold v. Connecticut, that case was the culmination of the movement. Also, I believe you paint yourself as a biggot by declaring that everything was fine until the 14th Amendment. Should we revert back to slavery? Or from the point of view of your post, I guess we should just allow the states to decide if they want slavery.

Posted by: Sean Sirrine at February 09, 2006 09:23 PM (5/A71)

2 Oh, I almost forgot to add my distaste for how ridiculous your premise was in this post. Not only do you quote Hamilton before the Bill of Rights was written, you fail to mention that the 9th and 10th Amendments were added because of him. He felt that if these amendments were added nobody would believe that the Constitution declared all the rights that were held by Americans. The right of privacy that you are so against actually is constructed from the 9th Amendment. Our Founding Fathers couldn't possibly write all of the rights we had down, and so they said that whatever wasn't given to the government is reserved to the people. That includes privacy. Your own argument is so flawed that even 5th graders should be able to pick it apart.

Posted by: Sean Sirrine at February 09, 2006 09:40 PM (5/A71)

3 Thanks for stopping by! I'm sorry that you have such a dislike for the U.S. Constitution.

Posted by: Ogre at February 09, 2006 09:50 PM (+Gl1m)

4 Although little taught in schools anymore, THIS was the reason behind the American Civil War. A bunch of states said "We are soverign states, allied under a federal government. United, but seperate." The federal government replied. "No. This is a nation, of which you are all partitions. You have some laws, but federal law and rule in supreme." Several states said "Wrong. We are an alliance - a set of United Nations. We can and WILL pull out of this alliance if you don't back off." The federal government replied "You are NOT seperate states! If you try to pull out, you will be branded traitors, and forced to return." The South gave Washington the finger and declared the Confederacy. The rest is history. Or is it? We may yet see another uprising against the insistance that federal power overrides State power. Only time will tell.

Posted by: The Small Town Hick at February 11, 2006 12:18 AM (ZINSp)

5 Most certainly that is the real cause of the civil war. But I don't see enough people with enough guts to attempt to stand up to the federal government any more. There's too many people that are on the government gravy train that won't bite the hand that feeds them.

Posted by: Ogre at February 11, 2006 12:28 AM (+Gl1m)

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