Susan Hogarth wrote:
> The constitution is designed (poorly, alas) to
> protect us from the depradations of the *federal government*, not to
> strengthen that government by making it a protector against our local
> governments.
Let me correct the apparently widespread misconception, even among
Libertarians, that the U.S. Constitution only serves to limit the
federal government. True, that is its primary purpose, but it also
contains a number of explicit restrictions on the behavior of state
governments. For example, from Article I, Section 10:
"No State shall enter into any Treaty, Alliance, or Confederation; grant
Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make
any Thing but gold and silver Coin a Tender in Payment of Debts; pass
any Bill of Attainder, ex post facto Law, or Law impairing the
Obligation of Contracts, or grant any Title of Nobility.
"No State shall, without the Consent of the Congress, lay any Imposts or
Duties on Imports or Exports, except what may be absolutely necessary
for executing it's inspection Laws: and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the
Use of the Treasury of the United States; and all such Laws shall be
subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger as
will not admit of delay."
From the Fourteenth Amendment: "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."
From the Fifteenth Amendment: "The right of citizens of the United
States to vote shall not be denied or abridged by the United States or
by any State on account of race, color, or previous condition of servitude."
I could go on, but I think you get the idea.
Article VI establishes that the U.S. Constitution takes precedence over
state laws and constitutions in the case of conflicts, and explicitly
mentions judicial functions:
"This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
"The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial Officers,
both of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution ..."
What the U.S. Constitution *doesn't* do is restrict the rights of
individuals. (It doesn't *grant* those rights, either, nor does it
exhaustively list those rights; it merely recognizes a specific subset
of those rights, while acknowledging (in the Ninth Amendment) that
others exist: "The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people.") It clearly *does* restrict the powers of both the federal and
state governments.
As Michael Badnarik is fond of pointing out (and as the Democratic and
Republican politicians do their best to ignore), the Constitution
establishes a republic, not a democracy. (In a democracy, 51% of the
voters can vote away your rights; in a republic, your rights are secured
even if 99% of the voters disagree with you.)
Not only does the Constitution create a federal republic, but it
guarantees that the states will also have republican governments in
which individual rights trump democratic mob rule (or the interests of
greedy developers). As Article IV, Section 4 states: "The United States
shall guarantee to every State in this Union a Republican Form of
Government, and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence."
Property rights are fundamental. In fact, Michael Badnarik would argue
that all rights are based on property ownership. You have the right to
freedom of speech because you own your mouth; you have the right to
freedom of religion because you own your conscience; and so on. Rights
derive from ownership.
Property rights are therefore key to a republican form of government.
When a state government (or a local government empowered by a state
government) violates private property rights, it is violating the
principles of republican government and under Article IV, Section 4 the
federal courts may step in to rectify the situation. Unfortunately, in
the Kelo decision they failed to do so.
> Viewing the federal government as an all-powerful
> protector is, I beleive, a mistake.
I agree. But, the U.S. Constitution is (or should be) an important
safeguard for individual rights that might be violated by the federal
government, state or local governments, or private parties. It is just
one of many tools (also including the state constitutions and local
government charters, as well as personal self-defense if necessary) that
we can and should use to protect our rights. As our rights are further
encroached upon at all levels, anything -- including suits in federal
court -- that helps us defend Liberty is worth an effort.
>> On 7/3/05, [EMAIL PROTECTED] wrote:
>> > > The Fifth Amendment's provisions on
>> > > eminent domain limit the federal government only.
I disagree. As I pointed out above with several examples, certain
portions of the Constitution obviously apply to state governments.
Other portions of the Constitution apply limitations or delegate powers
to the federal government by referring explicitly to "Congress" or "the
United States."
For example: "The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States ..." (Article I, Section 8)
"No Title of Nobility shall be granted by the United States ..."
(Article I, Section 9)
"The Congress shall have power to declare the Punishment of Treason ..."
(Article III, Section 3)
"Congress shall make no law ..." (First Amendment)
I contend that since some portions of the Constitution explicitly limit
state governments, and others explicitly limit the federal government,
that where neither level of government is specifically mentioned, the
limitations logically apply to *all* levels of government (federal,
state, and of course local governments which are created/incorporated by
the states).
For example, where the Fourth Amendment states "The right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated ..." that
means that those rights shall not be violated by *any* level of
government. Where the Sixth Amendment states "In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public
trial ..." that means in *all* criminal prosecutions the accused have
those rights, whether the prosecution occurs in federal or state courts.
And where the Fifth Amendment states "nor shall private property be
taken for public use, without just compensation", the requirements that
the taking be for public (not private) use, and that just compensation
must be paid, logically apply to federal, state, *and* local
governments. To allow state or local governments to seize property for
private use and/or without paying fair compensation violates the
requirements for a republican system of government that apply to all
levels of government. The Constitution guarantees *all* Americans a
republican form of government, no matter which state they happen to live in.
Therefore, the Supreme Court *would* have been correct in denying the
taking of property by New London, Connecticut. Too bad only 4 of 9
justices had the guts to make the right call.
In Liberty,
Joe Dumas
--
"So this is how Liberty dies ... to thunderous applause."
-- Senator Padme Amidala, Star Wars Episode III
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