royal nitwit
steffan kinsella the psychopathic fool has again claimed that the "bill of rights" isn't applicable to the states. catch this "logic":
[...] In any event, what is clear is that the first eight amendments of the bill of rights specify limits on what Congress can do, while the ninth makes it clear that this listing is not exhaustive (for example, so that the listing of rights can’t be used to infer general federal powers were granted, that could be used to infringe these other, unenumerated rights), and the tenth emphasizes again that the feds have only the powers delegated to them, and no others. Now Amendments 1 through 8 limit the federal government either by saying "Congress shall not..." do something (like make a law abridging freedom of the press) or by listing a "right" that the people have (which would trump any exercise of federal power and thus also serve as a limit). [...]
"In any event, what is clear..." ha! it isn't clear at all, either before or after that pose. typical lawyer trash. i dabble in "law" here and there, and one of the early tips i got from my advisor (a real lawyer, unlike kinsella) is that you should avoid using "clearly" or similar in pleadings when it's not clear. "clearly" is often the lawyer alarm for "please ignore that i have no case, because i'm about to conclude that i have a case. buy my rhetorical momentum, won't you?"
naturally, those who are flummoxed by word tonnage pat the IP poster boy (one trick pony) on the back.
same old same old. kinsella wants to let everybody know that he's a "lawyer", and that he can spit out enough bleh that it gets its own gravity field — most of it, as usual, talking about everything but the very thing he claims to be analyzing (the US constitution). the old bench-sniffing lawyer routine; never mind that he's wrong — it's a long article, dammit!
not going to waste my time debunking his turd-a-thon paragraph by paragraph. i'll just ask the usual simple question for this subject, and then you can debunk it yourself if you care:
"where in the constitution does it say that the bill of rights is limited to constraining the federal government?"
i've written about this before, of course. while there are plenty who disagree with me (on grounds of tradition and other extralegal hoowah), no one has refuted my position on applicability as stated here.
it's kinsella the contrarian, overreacting because some "libertarians" are even stupider than he is, if you can believe it. the "decision" is a joke, and whatever point he might have made is eclipsed by inaccuracy and overreaching.
steffan, plenty o' LRC readers know that you're a nasty widget with zilch on the ball. if, allah forbid, you and jeff tucker end up playing footsies one day over the carcass of the mises institute, it might just be time to torch the joint. (as mollification, we can "argue" afterward that at least we kept our matches and gasoline from crossing state lines, thereby squaring away our states' rights position and justifying a rabid thumbs up from the "libertarian" peanut gallery, which often would rather argue about nonsense than open half an eyeball.)
Labels: constitution
posted by saltypig @ 00:09
I'm afraid I have to disagree. It doesn't have to explicitly say in the Bill of Rights that it only applies to the federal government. The basis for construction should be original understanding, established by legislative history and the evils it was intended to rememdy. And the Bill of Rights was created to mollify anti-federalists who feared the central government would become a tyranny. They already had protections against the state governments, in their own bills of rights, and were quite confident in the ability of the states to manage their own internal affairs.
Come to think of it, one part of the B of R--the First Amendment--explicitly says *Congress* shall make no law.
right; the first amendment is a limitation only on congress. i've probably written about that in more than 20 places on this blog, as well as in the article linked in the post.
original understanding is relevant when the law is unclear or obviously contradictory/absurd as written (more absurd than the bill of rights itself which, as i've said many times, was a drastic error except for the 10th). that's not the case here. (see the beginning of article i section 8 and this letter for a great example of an obviously screwed up section of the constitution which requires original-intent-style analysis.)
most of the "doesn't apply to the states" crowd is reacting to the "incorporation doctrine" fools. when the "bill of rights" is applied as written, it includes the states as written. in other words, the first amendment BS commonly understood in this country as "free speech" wouldn't exist, because the federal government wouldn't be involved. again, i said all this in the article i linked to.
i didn't write the constitution, and i wouldn't have. but it is "law", and not at all confusing with regard to applicability of the bill of rights to the states: they apply as written. any argument to the contrary is usually so steeped in 14th amendment overreaction and gnosticism as to be... well, as stupid and irrelevant as kinsella's article. regardless of how heartfelt the opinion, the law is inescapable. it's funny to hear people argue against the state applicability conclusion, because pretty much nobody will admit straight out of the gate that the written law is in direct contradiction to their thesis. that's especially rampant in the steffan k article.
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