(no subject)

[yahvah.livejournal.com]

Here's something for the community's U.S. citizens to consider. Cornell's website is very good at linking to sections of the U.S. constitution inkblotted by amendments. What it does not do is link Article III section II to the 14th amendment. Article III Section II, and the Judiciary Act of 1789, are very clear on the fact that the United States court system extends to every sphere except for The People vs Their State. If Article III Section II remains unchanged for all intents and purposes, and the 14th amendment extends the U.S. Bill of Rights to The People vs Their State, then is the only justification for the Supreme Court ruling on things like gun ownership in Chicago based on this clause of section II: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"?

If aforementioned clause is the justification for the judicial power extending based on the 14th amendment's assertion "No state shall break the 5th amendment" (my paraphrase), why is that statement valid in the context of the 14th amendment but not the 5th? Is not the lack of an explicit statement giving judicial power over The People vs Their State a contradiction?

I'll be going to bed soon. Please talk amongst yourselves.

Comments

[a-new-machine.livejournal.com]

Probably because Cornell is a site that adheres to mainstream views of the Constitution, which your interpretation of the Fifth (and for that matter, most other things) is, emphatically, not.

[a-new-machine.livejournal.com]

Also, the 14th doesn't extend all elements of the Bill of Rights to the states. The jury trial guarantee of the Seventh, for instance, is not incorporated against the States by the Fourteenth Amendment.

[yahvah.livejournal.com]

Irrelevant.

[a-new-machine.livejournal.com]

Yeah, just a minor factual correction (you said "the 14th amendment extends the U.S. Bill of Rights to The People vs Their State").

[yahvah.livejournal.com]

The 14th amendment does extend the U.S. Bill of Rights to The People vs Their State (and city) since, in fact, the Supreme Court ruled in favor of The People vs Chicago just recently.

[yahvah.livejournal.com]

Cornell's view of the constitution and your statement as such is irrelevant. For example, they link article 1's "no direct tax shall be laid" clause to the 16th amendment. This is not a matter of opinion on Cornell's part. In the same vein, they link part of article 3 section 2 to the 11th amendment. Again, not a matter of opinion. It's a link to the relationship between the amendments and the original text.

So, how does 'no state shall break the 5th amendment' have validity outside of there being no explicit statement of judicial power extending to The People vs Their State?

Does it have to be a majority opinion for it to be meritorious? That's kind of a bandwagon attitude, if you ever talk of such things outside of philosophy class.

[a-new-machine.livejournal.com]

Ah, I see. So you're wondering where jurisdiction comes from, if not from the Fourteenth implicitly overruling Art III sec 2? That's actually relatively easy to trace. Art III sec 2 says that "The judicial power shall extend to all cases, in law and equity, arising under. . . the laws of the United States." Congress gets the power to enforce the Fourteenth under Section V. Congress created laws, primarily 42 U.S.C. s. 1983, to allow citizens to enforce their civil rights against the states. (It is worth noting that most civil rights enforcement is still done by the Justice Department, not private citizens, due to the doctrine of qualified and absolute immunity that largely shields many public figures from federal lawsuits). So s. 1983 suits "arise under the laws of the United States." However, if s. 1983 did not exist, there would be no "law of the United States" that would allow the individual to sue, for jurisdictional reasons (to say nothing of the lacking right of action AKA permission from the government to sue).

So Art III sec 2 isn't violated by the Fourteenth - in fact it's directly related to the enforcement of the Fourteenth, in that it's where the federal judiciary claims its jurisdictional basis.

[yahvah.livejournal.com]

Explain in more certain terms how article 5 empowers the people to fight for gun rights against Chicago.

[a-new-machine.livejournal.com]

Not Article V, Section 5 of the Fourteenth Amendment, which reads: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

S. 1983 is "appropriate legislation." If s. 1983 didn't exist, there would be no right for individuals to sue Chicago to go after their gun rights, it'd be purely Congress's job to enforce it. They could create a regulatory body, the Bureau of Civil Rights, that doles out punishments to those who violate it, without ever invoking Article III courts. Instead, they decided to create s. 1983, a private cause and right of action, which empowers individuals to sue officers of the state (not the state or city directly) for violations of constitutional commands that are applicable against the states and her organs. Thus, the power to sue does not arise under the Fourteenth Amendment, but under "the laws of the United States," as embodied in 42 U.S.C. s. 1983.

So:
1.) Chicago is not being sued; officers of the city who are enforcing allegedly unconstitutional laws are being sued. Critical difference.
2.) There is no right in the Fourteenth Amendment to sue anyone, for anything.
3.) Congress has the power to enforce the Fourteenth Amendment, under Section 5 of the Fourteenth Amendment.
3.) The suit arises under federal legislation, which determined that a civilian-initiated lawsuit was the appropriate enforcement measure, under its Fourteenth Amendment powers.
4.) Federal courts have the power to hear cases arising under federal legislation (see Art III sec 2), even if the individuals involved have state jobs.
Ergo: The people of Chicago can sue individuals enforcing allegedly unconstitutional laws under s. 1983, which is in turn an exercise of the Fourteenth Amendment's enforcement power, vested in Congress by Section Five.

[yahvah.livejournal.com]

I just read that U.S. code.

Man!

No civil rights in the U.S. until 1983!

What a magical year for political science!

[a-new-machine.livejournal.com]

I *hate it* when oft-discussed sections coincide with years. "So, in section 1979..." [me, not listening: wait, did he mean Section 1979? or the 1979 version of the statute? or was the decision we're discussing made in 1979? so... so very lost all of a sudden]

[htpcl.livejournal.com]

My bro was born in that year, so yeah, it's magical.

[a-new-machine.livejournal.com]

Also: s. 1983 suits do not sue the state, ever, due to the immunity of the state from federal court judgments under sovereign immunity. They sue officers of the state for unlawful actions taken under color of law.

[yahvah.livejournal.com]

Yeah, those immunity clauses are a separate matter altogether. Never mind the fact that the philosophies of those who ratified the constitution were in favor of abolishing unjust governments since governments are by the people and for the people.

[a-new-machine.livejournal.com]

It's not an immunity clause, it stems from sovereign immunity principles, and did not originate in any statute.

IMO it's decent policy anyway. S. 1983 suits are as-applied suits, and thus should only be relevant where the individual sued had some discretion in the matter (which is the difference between qualified and absolute immunity). Otherwise, if their actions were non-discretionary (and thus meriting absolute immunity) you should be able to launch a facial challenge, because the non-discretionary nature means that the law is facially invalid, not just invalid as applied in a specific set of facts.

[underlankers.livejournal.com]

And then President Washington led an army on the field to gun down the 18th Century Taxed Enough Already types.....

[luzribeiro.livejournal.com]

I'll be going to bed soon.

Apparently not! :)))

[yahvah.livejournal.com]

i should've gone to bed earlier

[underlankers.livejournal.com]

Er, no, that is not how the US Constitution works. It is the highest law in the land, Federal courts dealing with the Constitution are precisely that: the uppermost rung of a court system. The Constitution is vague on a lot of things because the Founders feared being explicit guaranteed a disaster earlier.

[yahvah.livejournal.com]

If you're saying the highest law in the land means something other than what supreme is asserted to be in article 6 then I'd have to have explained precisely how state judges being required to uphold the constitution somehow means something totally different than what the words mean. The 11th amendment introduced a specific sovereign immunity contrary to article 5, and because of all this immunity nonsense and glorification of localized tyranny, you get to be a resident expert on the Civil War.

[underlankers.livejournal.com]

Translate that into words even Caesar can understand, Virgil-English, dude.

[gunslnger.livejournal.com]

Legal language isn't English, so that's an impossible request.

[yahvah.livejournal.com]

IT IS AND I THINK I FOUND MY SUPPORT FOR SUPREMACY AND FUCK JOHN MARSHALL WITH A GIANT SERRATED POLE

Translation:

[a-new-machine.livejournal.com]

He's asserting that states were bound by provisions of the Constitution that only bound the federal government, like the Bill of Rights. He then argues that the introduction of limited versions of state sovereignty via the Eleventh Amendment (which, I'll note, is emphatically not where the legal doctrine of sovereign immunity for states comes from) led directly to the Civil War.

Re: Translation:

[yahvah.livejournal.com]

I'm not making any argument about what led to the Civil War, so I'd appreciate if you'd not put words in my mouth. That's actually a really lame political tactic and shows weakness. Let's stick with me being an armchair law student trying to understand why we laud our Bill of Rights so much when it's supposedly so, so incredibly impotent. It's as if scores of years of legal tradition is implicitly racist and bigoted. How is it not?