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If that were the case, there would not have been a need for Miranda v Arizona to go to the Supreme Court. In fact, there would not have been a need for the Civil War.
What precisely did Miranda provide that was not previously?
It required that Government officers inform suspects of their rights on arrest, it did not incorporate the 5th Amendment, that was already incorporated, it was purely procedural. It reminds people arrested on suspicion of criminal activity of their rights.
So no if the populace were well informed there is zero requirement for Miranda, as every person in the US would be well aware of their constitutional rights, and thus no need to inform them of them.
Quote:
Originally Posted by Ralph_Kirk
But that's not what the 10th Amendment does. In the Constitution and its amendments, the federal government has "powers"--not rights--but people and states have both "powers" and "rights." The 10th Amendment was not intended in any way to restrict the states. The Bill of Rights was totally and utterly intended only to restrict the powers of the federal government.
The states have no intrinsic rights at all only what is granted under the constitution, or their state constitutions, but the rights granted to the state by the people of that state only apply within it's boundaries. The Bill of Rights was totally and utterly intended to restrict the powers of government as provided in the constitution, the 10th Amendment specifies which freedoms and restrictions have been applied to the States or the people.
Quote:
Originally Posted by Ralph_Kirk
Not a single one of the original states would have accepted a federal government that restricted the power of the states to manage its own internal social order. It was the Civil War that changed that relationship and only after the Civil War were there both amendments and Supreme Court judgments that ruled over internal state affairs.
But the Constitution was not the Federal government restricting power of the States, it was the People restricting the power of the Government, both the Republican Government, and the States governments.
Quote:
Originally Posted by Ralph_Kirk
This was born out by both Barren v Baltimore (1833) and Scott v Sandford (1857) in which the Supreme Court ruled that the Bill of Rights was not applicable to the states.
Barron ruled that the 5th Amendments no property taken for public use without just compensation was a violation of the ex post facto clause for State Eminent Domain, it did not rule that the Bill of Rights was not applicable to the States.
Dred Scott ruled that the the plaintiff had no standing as he was not a US Citizen, that Article IV's Federal Property and Territorial Clause only applied to states that were present at the ratification of the Constitution (1787) and the due process clause of the 5th Amendment prohibits the Federal Government from freeing slaves brought into Federal Territories. Indeed Dred Scott confirmed that the 5th Amendment in part applied to the States.
However if you read the 10th Amendment it is very clear it is both an expansion to include actions not permitted to the federal government yet still with limitations, it prevents states from acting in ways that they are prohibited, the second has no scope therefore logically it applies to all levels of government as does the Constitution in total.
Quote:
Originally Posted by Ralph_Kirk
The last of the Founding Fathers had just recently died back then, so people didn't even have to study hard to know what they meant to say in the Constitution.
Agreed, and for the 42 years between the ratification of the Amendments, and the first case heard in regards to the scope of their application, all of the founders had died. What's interesting is that the first case heard ruled that a small section of the bill of rights didn't necessarily apply, before then it's clear that the assumption was it did apply, given that Barron had every right to believe he was a wounded party, and therefore was entitled to some compensation. Indeed the ironic statement by Marshall in his opinion was
"amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."
However an equally valid opinion would be
"amendments contain no expression indicating no intent to apply them to the State Governments. This court will therefore so apply them"
However had that alternate opinion been written, then Marshall who was trying to expand the role of the Supreme Court, would not have been able to do so. The assumption that the BoR was exclusive to Federal government provides a lot more legal miles than the assumption that the BoR was to all levels of government, thus for someone who is trying to expand the role of the court, they're not going to select they apply to all levels for the precise reason that they need the legal mileage to expand the role of the court.
I always thought the answer was because it's the only amendment the subject of which can be used to massacre people. Then again, all those drive-by killings with free speech … mowing down of small children with the separation of church and state …perhaps we should rethink the matter after all.
"]I always thought the answer was because it's the only amendment the subject of which can be used to massacre people"
What precisely did Miranda provide that was not previously?
It required that Government officers inform suspects of their rights on arrest, it did not incorporate the 5th Amendment, that was already incorporated, it was purely procedural. It reminds people arrested on suspicion of criminal activity of their rights.
So no if the populace were well informed there is zero requirement for Miranda, as every person in the US would be well aware of their constitutional rights, and thus no need to inform them of them.
Correct.
Quote:
Originally Posted by Gungnir
The states have no intrinsic rights at all only what is granted under the constitution, or their state constitutions, but the rights granted to the state by the people of that state only apply within it's boundaries. The Bill of Rights was totally and utterly intended to restrict the powers of government as provided in the constitution, the 10th Amendment specifies which freedoms and restrictions have been applied to the States or the people.
Incorrect.
It is the States that have all the power. The only powers that the States do not have are the ones specifically prohibited to them by the US Constitution.
The original 13 colonies ceded a certain number of powers to create a federal government. Those powers are listed within the US Constitution. The 13 colonies did not give up all their powers, just those listed in the US Constitution. Education and all social programs were powers retained by the States, and never granted to the federal government.
All powers not specifically granted to the federal government by the US Constitution, except for those powers specifically prohibited to the States by the same document, belong to the States and/or the people.
Quote:
Originally Posted by Gungnir
But the Constitution was not the Federal government restricting power of the States, it was the People restricting the power of the Government, both the Republican Government, and the States governments.
Also incorrect.
The US Constitution was only intended to limit the federal government. It would not be until after the Fourteenth Amendment was added in 1865 that the Bill of Rights were applied to the States for the first time.
Furthermore, it is the State governments that are required to be a republican form of government, not just the federal government. See Article IV, Section 4, Clause 1 of the US Constitution.
The Founding Fathers certainly thought they were talking about a separation of Church and State, at least at the federal level. They wrote about it quite a bit.
That particular phrase, btw, "wall of separation between Church and State" was coined by Roger Williams in his 1644 treatise "The Bloudy Tenent of Persecution for the Cause of Conscience." Williams was a radical Puritan pastor, the man who founded the first Baptist church in America, the first American Abolitionist, and the founder of the state of Rhode Island--specifically as a state of total freedom of religion. In fact, in founding Rhode Island, Williams specifically identified freedom for Islam and atheism.
In "The Bloudy Tenent of Persecution for the Cause of Conscience," Williams traces the intertwining of religion with government from Constantine to his time--including the Thirty Years War and the situation leading to the English Civil War that was then brewiing--and why it's always a bad thing for the Church to be in bed with the king.
When Williams wrote that there needed to be a "hedge of separation between the garden of the Church and the wilderness of the State," he was speaking for maintaining the purity of Christianity from the evils that the king must perpetrate to maintain power and wealth.
When Thomas Jefferson was trying to convince the members of the influential Danbury Baptist Church (remember that Williams had founded the Baptist church in America), he cribbed Williams' words in his argument.
Rhode Island (still following the precepts of Roger Williams) was also the state that single-handedly blocked ratification of the Constitution until the Bill of Rights--specifically the First Amendment--had been written and ratified. The day after the Bill of Rights had been ratified, Rhode Island signed off on the Constitution as the last state necessary.
"]The Founding Fathers certainly thought they were talking about a separation of Church and State, at least at the federal level."
The Founding Fathers had a minister say a prayer BEFORE EVERY meeting the held.
From the very first session of Congress continued uninterupted through today, a PRAYER is said at the opening of EVERY session of Congress.
The Founding fathers attend Sunday RELIGOUS SERVICES IN THE CAPITOL building for over 7 years.
Why didn't they try to get the services stopped IF they belived that religious "things" should NOT be allowed on federal property?
Why didn't they protest against having a minister say a prayer before each session of Congress.
Why didn't they protest against Congressman and other federal officials taking the oath of office using a bible?
There are MORE instances in history where they mixed federal business with religion then without.
I would rather pay more attention to what they ACTUALLY did in regard to religion and government then what someone "thinks" they meant.
I really wonder how many people, or specifically posters on this board, spend a good portion of their life thinking and worried about this. How many actually lose sleep over it?
I really wonder why people who have NO interest in the subject keep posting.
If you don't like the subject, stay away. You won't be missed.
"]The Founding Fathers certainly thought they were talking about a separation of Church and State, at least at the federal level."
The Founding Fathers had a minister say a prayer BEFORE EVERY meeting the held.
From the very first session of Congress continued uninterupted through today, a PRAYER is said at the opening of EVERY session of Congress.
The Founding fathers attend Sunday RELIGOUS SERVICES IN THE CAPITOL building for over 7 years.
Why didn't they try to get the services stopped IF they belived that religious "things" should NOT be allowed on federal property?
When did I say the believed that? There are religious chapels and religious services on every military installation today. Regardless of what atheist extremists may claim, individuals merely having a voluntary religious observance on government property is not an abrogation of the separation of church and state.
NOR doe it mean that there is not a separation of chruch and state.
But they passed no laws either promoting or inhibiting any particular religion.
In Massachusetts, in order to lawfully purchase or possess a rifle or shotgun which is not large capacity, or ammunition, a person must have a FID.
One of the reasons why I am glad I moved to NH. I'd have to spend at least $200 to exercise my -RIGHT- (not privilege) to keep and bear arms in Mass. Screw that.
"]The Founding Fathers certainly thought they were talking about a separation of Church and State, at least at the federal level."
The Founding Fathers had a minister say a prayer BEFORE EVERY meeting the held.
From the very first session of Congress continued uninterupted through today, a PRAYER is said at the opening of EVERY session of Congress.
The Founding fathers attend Sunday RELIGOUS SERVICES IN THE CAPITOL building for over 7 years.
Why didn't they try to get the services stopped IF they belived that religious "things" should NOT be allowed on federal property?
Why didn't they protest against having a minister say a prayer before each session of Congress.
Why didn't they protest against Congressman and other federal officials taking the oath of office using a bible?
There are MORE instances in history where they mixed federal business with religion then without.
I would rather pay more attention to what they ACTUALLY did in regard to religion and government then what someone "thinks" they meant.
Actions speak louder then words.
I would like to clear up a couple misconceptions.
First, Thomas Jefferson may have been the author of the Declaration of Independence and the third US President, but he was not technically a "founding father." Jefferson was not even in the country when the founding document, the US Constitution, was written. In fact, Jefferson wrote that he opposed the original US Constitution as ratified by the States.
Second, Jefferson's letter to the Danbury Baptists about the "separation of church and state" referred to the prohibition of government creating an establishment of religion. Since the First Amendment was originally taken from the Virginia Statute for Religious Freedom, which Jefferson wrote, he could be considered the authority on the subject.
A traditional congressional benediction is not the "government creating an establishment of religion." A politician evoking a religious deity in a speech is not the "government creating an establishment of religion." A valedictorian speech evoking a religious deity in a public school is not the "government creating an establishment of religion."
Only through the enactment of laws can government create an establishment of religion.
Subject to rule.......need help with that, too?
It means people can't be running around willy-nilly, doing whatever they want. They have to follow the rules.
I see you're having problems with the word "regulated."
From your own link:
2. To adjust to a particular specification or requirement: regulate temperature.
3. To adjust (a mechanism) for accurate and proper functioning.
4. To put or maintain in order
A "well regulated militia" is one that is well maintained and well functioning.
Nice try, though. (Not really, actually. It was actually a pretty lame attempt, as your own link provides the argument against your position).
I see you're having problems with the word "regulated."
From your own link:
2. To adjust to a particular specification or requirement: regulate temperature. 3. To adjust (a mechanism) for accurate and proper functioning. 4. To put or maintain in order
A "well regulated militia" is one that is well maintained and well functioning.
Nice try, though. (Not really, actually. It was actually a pretty lame attempt, as your own link provides the argument against your position).
I'd say a "well-regulated militia" is one that has regulations, as all military organizations do.
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