From: dp
Subject: Re: Liberals want to remove Admendment #10? (was Re: rmgroup alt.fan.rush-limbaugh
Organization: Texas Instruments
Date: Wed, 11 Nov 1992 22:24:13 GMT

In article <1drdpfINN6od@agate.berkeley.edu>, curtis@cs.berkeley.edu (Curtis Yarvin) writes:
|> In article <1992Nov11.140406.2361@novell.com> bboerner@novell.com (Brendan B. Boerner) writes:
|> >>
|> >Conversely, if my state takes away my whiffle balls, I'd like the U.S. to be
|> >there to stick up for me.
|> 
|> And I, sir, would like a big fast Bugatti and hot apple pie a la mode
|> every morning with my coffee.
|> 
|> But I'm afraid that the Constitution does not guarantee either
|> of us our desires.  
|> 
|> Federal limitations on the states were a sort of jury-rigged
|> half-hack put in after the Civil War and are as much de facto
|> (a Latin term meaning "Constitution my ass!  Are you really
|> going to get uppity after what we did to Atlanta?") as anything
|> else.
|> 

Only partially true.  The federal limitations on the states were first
introduced in the 14th Amendment in order to force the abolition of slavery
from the federal level.  It wasn't until the SC began linking the 14th
amendment to other parts of the Constitution (began in 1947) that the
limits on states' rights had been expanded beyond simply restrictions on
slavery.  It was this link that has resulted in such decisions as the removal
of prayer from public schools (1963).  (Remember, the First Amendment
actually only mentions the (Federal) Congress; not the states, not school
boards, not any other agency or institution of government!)  This is one of
the hazards of a President appointing SC Justices using a litmus test (these
judges had to pass FDR's test regarding the constitutionality of his social
programs).

The Justices that FDR appointed (after his unsuccessful attempts to "fire" the
Justices that kept finding his social programs unconstitutional) re-defined
the SC decision process.  Suddenly gone was the search for authorial intent as
one of the main means of reaching an SC decision.  Suddenly gone as well were
a number of the SC decisions upon which ~170 years of previous SC had been
built.  With one decision in 1947, the SC gave itself the ability and
precedent to eliminate ANY state law, policy, or practice that it deems to
fall under the cover of the 14th Amendment.  Sound a bit cynical?  So did the
possibility of linking the 1st and 14th Amendments prior to the SC's landmark
decision in 1947.

< stuff deleted >

|> Unfortunately this "right to privacy," while a beautiful
|> invention, an invention of wonderful creativity and originality,
|> a real work-of-art invention if I may say so myself, is also an
|> entirely bogus invention, and thus its inventors feel free to
|> take it or leave it as the feeling moves them.

Actually, the Constitution specifically grants the right of the government to
restricted "search and ceasure" when it is in the interests of the nation as a
whole.  Laws prohibiting such things as sodomy, prostitution, the posession or
use of illegal drugs, etc. were/are considered in the interest of the public
health and were thus allowed under the Constitution itself, even prior to its
having been amended.

Where in the Constitution does it say that a criminal suspect must be "read
his rights"?.  Answer: nowhere.  One must read SC decisions in order to find
it "legislated" into practice by the Court.  Ah, yes, the SC has been such a
creative place to be since '47.  Since justice has had little to do with
SC opinions over the past 45 years, perhaps the title should be changed from
Justice to "Fairness".

< more stuff deleted >

dp

***  The opinions are mine (maybe) and do not necessarily represent those  ***
***  of my employer.                                                       ***