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Old 04-08-2013, 12:38 PM #1
barrel roll
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The Farce Known as Incorporation Doctrine.

The "due process" clause of the 5th amendment binds Congress, binds the general government, from depriving us (the citizenry) from life, liberty, and property WITHOUT due process.
It is a procedural right as the Supreme Court interprets it. NOT a source of substantive right like say... a right to be free from interference to exercise your rights to have an abortion.
Exactly the same language of the "due process" clause in the 14th amendment is that tool by which the Supreme Court has incorporated the Bill of Rights (first 10 amendments) against the states, BUT the Supreme Court's logic is twisted and its application is incomplete. The logic is twisted simply because the "due process" clause of the 5th and the 14th amendments are identical in language but at the hands of the modern Supreme Court, the 14th amendment's "due process" clause works a completely different purpose: it creates substantive rights rather than merely guaranteeing procedures that are proper before the government can take actions against one's life, liberty or property.
It is well known that Marshall and Black, who invented this Incorporation Doctrine, had no legal justification for the courts incorporating the Bill of Rights for use against the states. They had to make it up.

The application is incomplete, and this is ANOTHER reason the idea is so bizarre, if the 14th amendment's "due process" clause was intended to incorporate the Bill of Rights, why does it incorporate the 1st, 2nd, 4th, parts of the 6th and 8th, but not the others? Why is there federal protection against state interference based on excessive punishment BUT the same 8th amendment protection against excessive bail doesn't apply to the states but the standards against cruel and unusual punishment does? How can anybody possibly believe the court's lie that the 14th amendment's "due process" clause was intended to go in and selectively pick out portions of the Bill of Rights and apply them to the states when there is absolutely no evidence at all, and when the justices for the Slaughter-House cases (pretty much immediately after the 14th amendment was adopted) refused to apply the 14th amendment's privileges and immunities clause to impose the Bill of Rights obligations on the states?
It is not as though the states leave their citizens unprotected. The Bill of Rights was devized by looking to what the states were doing to protect their citizens (in speech, religion, press, right to trial, right to counsel, etc etc).



This has been a "stream of thought" post. Take that as you will.
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Old 04-08-2013, 02:56 PM #2
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I'll try to post more later, but is it your contention that, by using the DPC of the 14th Amendment for the purposes of incorporating of the BOR against the several states, the Supreme Court is thereby creating substantive rights? I need to make sure I'm clear on this before I post further.
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Old 04-08-2013, 03:02 PM #3
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Looking back at this... man, this experiment is not very fun to read I'm sorry.

Yes, that is my argument.
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Old 04-08-2013, 04:09 PM #4
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tl;dr?
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Old 04-08-2013, 05:28 PM #5
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tl;dr?
Go away.
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Old 04-08-2013, 05:52 PM #6
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Quote:
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tl;dr?
BR's argument is essentially the claim below:
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Originally Posted by StellarKnight View Post
...by using the DPC of the 14th Amendment for the purposes of incorporating of the BOR against the several states, the Supreme Court is thereby creating substantive rights...
Unfortunately, I have no idea what any of this means, so this one is beyond me, and I am unable to comment, save for stating that I cannot comment.
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Old 04-08-2013, 05:58 PM #7
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Ditto.
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Old 04-08-2013, 06:31 PM #8
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Unfortunately, I have no idea what any of this means, so this one is beyond me, and I am unable to comment, save for stating that I cannot comment.
The Bill of Rights gives a list of rights and the 5th Amendment states that the federal government cannot deprive/violate/abridge these rights without due process of law. In the 1820's (I think; it was sometime prior to the Reconstruction and enactment of the 14th Amendment) there was a US Supreme Court case which essentially held that state governments aren't subject to the guarantees of the BOR; only the federal government is restricted by those rights and thus can only deprive citizens in accordance with 5th Amendment due process.

After Reconstruction, the 14th Amendment was enacted which contains language similar to that of the 5th Amendment due process clause. "Incorporation" of the Bill of Rights is a doctrine by which the Supreme Court specifically finds that the several states are subject to a particular right recognized by the BOR, and the Court has premised the incorporation of these rights upon the due process clause of the 14th Amendment (rather than the 14th's privileges and immunities clause, which was shot down in the Slaughterhouse Cases).

BR's argument is that the 14th Amendment's due process clause is used as a vehicle for granting substantive rights because the incorporation doctrine holds that incorporated BOR rights cannot be violated by any governmental entity, not just the federal government. For example, prior to incorporation, the Constitution maintained that I may freely exercise any religion of my choice without interference from the federal government unless such interference is within the confines of the 5th Amendment's due process requirement. After the free exercise clause was incorporated, the holding is that the Constitution allows me to freely exercise any religion of my choice without interference from any governmental entity. This grants me additional substantive rights because it allows me to freely exercise my religion without fear of any governmental entity telling me I cannot do so, whereas before I was only secure in such right from the restraint of the federal government.

I believe the rub lies in the fact that the language of the 14th Amendment due process clause and the 5th Amendment due process clause are similar, yet one is treated as merely a procedural vehicle (the federal government cannot violate other rights unless the do so through the proper channels) and the other is a wholesale expansion of the right conferred by the BOR (no government entity can violate the BOR). I think
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Old 04-08-2013, 08:02 PM #9
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Originally Posted by StellarKnight View Post
The Bill of Rights gives a list of rights and the 5th Amendment states that the federal government cannot deprive/violate/abridge these rights without due process of law. In the 1820's (I think; it was sometime prior to the Reconstruction and enactment of the 14th Amendment) there was a US Supreme Court case which essentially held that state governments aren't subject to the guarantees of the BOR; only the federal government is restricted by those rights and thus can only deprive citizens in accordance with 5th Amendment due process.

After Reconstruction, the 14th Amendment was enacted which contains language similar to that of the 5th Amendment due process clause. "Incorporation" of the Bill of Rights is a doctrine by which the Supreme Court specifically finds that the several states are subject to a particular right recognized by the BOR, and the Court has premised the incorporation of these rights upon the due process clause of the 14th Amendment (rather than the 14th's privileges and immunities clause, which was shot down in the Slaughterhouse Cases).

BR's argument is that the 14th Amendment's due process clause is used as a vehicle for granting substantive rights because the incorporation doctrine holds that incorporated BOR rights cannot be violated by any governmental entity, not just the federal government. For example, prior to incorporation, the Constitution maintained that I may freely exercise any religion of my choice without interference from the federal government unless such interference is within the confines of the 5th Amendment's due process requirement. After the free exercise clause was incorporated, the holding is that the Constitution allows me to freely exercise any religion of my choice without interference from any governmental entity. This grants me additional substantive rights because it allows me to freely exercise my religion without fear of any governmental entity telling me I cannot do so, whereas before I was only secure in such right from the restraint of the federal government.

I believe the rub lies in the fact that the language of the 14th Amendment due process clause and the 5th Amendment due process clause are similar, yet one is treated as merely a procedural vehicle (the federal government cannot violate other rights unless the do so through the proper channels) and the other is a wholesale expansion of the right conferred by the BOR (no government entity can violate the BOR). I think
I see. The way BR put it out there was abstruse for my pea brain. I side on behalf of more liberty and less government.
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Old 04-08-2013, 09:05 PM #10
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I side on behalf of more liberty and less government.
At the heart of the incorporation discussion is the question of "what is less government?" Is requiring the states to recognize the same citizen rights that the federal government is required to recognize really an example of government "getting larger"? I have a hard time reconciling an explicit restraint on government action and "more government."
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Old 04-08-2013, 09:35 PM #11
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I see where you are coming from but I consider it the federal government getting larger seeing as they have to be the ones to enforce it.
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Old 04-09-2013, 12:40 PM #12
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Quote:
Originally Posted by StellarKnight View Post
At the heart of the incorporation discussion is the question of "what is less government?" Is requiring the states to recognize the same citizen rights that the federal government is required to recognize really an example of government "getting larger"? I have a hard time reconciling an explicit restraint on government action and "more government."
For this argument, yes, requiring the states to recognize the same citizen rights that the federal government is required to recognize is an example of government "getting larger". The states never gave up that right for the general government to have over them in the compact. Enumeration is very important in this argument.
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Old 04-09-2013, 01:07 PM #13
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the BOR wasn't written to grant rights, it was written to limit what the gov't can and cannot do.
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Old 04-09-2013, 09:47 PM #14
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The states never gave up that right for the general government to have over them in the compact.
What right are states giving up by becoming subject to the BOR? The right to act in direct contradiction to the precepts of the BOR against its citizens? The BOR isn't a list of things the government can do, it's a list of things the government cannot do, premised upon the idea of natural rights. If the BOR outlines inherent inviolable rights, then drawing an applicable distinction between "state" and "federal" government is, at best, irrelevant and at worst, contradictory.

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Enumeration is very important in this argument.
So you don't buy into the idea of natural rights? I'm not big on the idea either, but I really don't like the idea of adhering to doctrine for doctrine's sake. I think Jefferson said it best:

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A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.
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Old 04-10-2013, 10:26 AM #15
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Off the top of my head, the establishment clause only applies to the GG. I would think that submitting to that clause would be an example of a state giving up a right. I'm not trained in law though.
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Old 04-10-2013, 10:59 AM #16
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Off the top of my head, the establishment clause only applies to the GG. I would think that submitting to that clause would be an example of a state giving up a right. I'm not trained in law though.
The entirety of the 1st Amendment expressly proscribes Congress from abridging the stated rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

So without the 14th Amendment and the incorporation doctrine, the 1st Amendment textually only applies to the the federal/general government. But even with incorporation, the states aren't handing a reserved power over to the federal government for the federal government to exercise (ex. regulation of securities and exchanges); they're submitted to the authority of the US Constitution's declaration of inalienable rights.

What was the basis for the BOR?
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Old 04-10-2013, 11:06 AM #17
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The basis for it?

Hell i can't remember anymore. My first guess would be that side note jotted down by some dead guy about a wall.

Edit: whoops you said BoR. I for some reason took that as being about the establishment clause. Sorry.

Natural rights being applicable to all men would be my best guess.

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Old 04-10-2013, 11:15 AM #18
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The basis of the BoR is to prevent the general government from doing X, then reserving everything else for the state and the citizens.

I have another "Stream of thought" post in response to "what rights the state would be giving up?" (SK). I am going to go through and edit the hell out of it before I post so I don't repeat the grammatical massacre I committed earlier.
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Old 04-10-2013, 11:25 AM #19
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The basis of the BoR is to prevent the general government from doing X, then reserving everything else for the state and the citizens.

I have another "Stream of thought" post in response to "what rights the state would be giving up?" (SK). I am going to go through and edit the hell out of it before I post so I don't repeat the grammatical massacre I committed earlier.
I think he was asking about the basis for X. Sure the purpose of the BoR is limits, but what determines those limits. If it is the idea of natural rights, and those natural rights are applicable to all men, than some argument can be made for the necessity of the 14ths due process clause. Can it not?

I think this is what SK is getting at anyway.
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Old 04-10-2013, 11:31 AM #20
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Transcribe those for me?
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Old 04-10-2013, 02:32 PM #21
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the BOR wasn't written to grant rights, it was written to limit what the gov't can and cannot do.
This is really the core of BR's complaint in his first post IMHO. By delineating what the government CANNOT do, the founders did not intend to create affirmative rights that would be extended to become requirements on state governments. At least that is the gist of what I took from BR's post. Correct me if I am incorrect.

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Transcribe those for me?
Transcribe them heck. I can barely read them.

BTW, this so far has been the most constructive thread in ST in a while. Congrats.

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