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> One of the central points of a Constitution is to mark certain things off-limits to democracy. This only applied to federal portion of "democracy" until the

> One of the central points of a Constitution is to mark certain things off-limits to democracy. This only applied to federal portion of "democracy" until the 14th amendment which added restricting the states re Bill of Rights. 14th wasn't adopted until 1868. I don't think it's that central. > The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure. The Supreme Court has ruled this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government, as well as to recognize substantive and procedural requirements that state laws must satisfy. -- https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_Un... The Constitution is primarily about limiting the powers of the Federal government vis a vis State government, and then both vs people. As outlined by the 10th amendment. > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The government can't pass laws against "Turtles Suck!" because that power is not granted them. It is reserved to The People. This is why "people" like youtube and twitter and cancel culture are free to censor and ban.

PaulDavisThe1st 4y ago
> > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. > The government can't pass laws against "Turtles Suck!" because that power is not granted them. I find this way of explaining things somewhat disingenuous. Very few powers are delegated to the federal government, but all of those that are are (because of the limitations of language) sufficiently ambiguous that they can interpreted as allowing all manner of legislation and regulation. > > One of the central points of a Constitution is to mark certain things off-limits to democracy. > This only applied to federal portion of "democracy" until the 14th amendment which added restricting the states re Bill of Rights. 14th wasn't adopted until 1868. I don't think it's that central. (1) you're suggesting that before the 14th amendment, a state could pass a "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." ? That seems preposterous. (2) It seems generally accepted that the supremacy clause of Article VI of the constitution is the basis for the US Constitution covering state law. (3) we live in 2022, and the US Consitution is as-it-is-today. The fact that something may have been added via an amendment (though above I dispute this) doesn't make it more or less "central".
- areyousure 4y ago
  > (1) you're suggesting that before the 14th amendment, a state could pass a "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." ? That seems preposterous. The words immediately preceding your quote are "CONGRESS shall make no ...", and so "preposterous" seems a bit too strong, doesn't it? In case anyone is curious, https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/First_Amendment_to_the_United_... says > Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment. (Fun facts: "Gitlow was the first major First Amendment case that the American Civil Liberties Union argued before the Supreme Court." Also, although Freedom of speech was incorporated in this case, Gitlow's conviction was nonetheless upheld.) You're welcome to read more about it yourself at https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R... . Therein, you'll find references to fun cases like Barron v. Baltimore (1833), finding "State governments are not bound by the Bill of Rights" before the 14th amendment, and United States v. Cruikshank (1876), finding "The right of assembly under the First Amendment and the right to bear arms under the Second Amendment are only applicable to the federal government, not the states" even after the 14th amendment. You may also find Article III of the Constitution of the Commonwealth of Massachusetts (1780) interesting: > As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily. When do you think Massachusetts stopped taxpayer funding of churches?
PaulDavisThe1st 4y ago
> This only applied to federal portion of "democracy" until the 14th amendment Just occured to me ... this just isn't the case for state constitutions. They serve the precise same role: marking out what is off-limits to "regular" democratic processes. To the extent that state and federal constitutions do not agree, there's some space for conflict and litigation there (or at least, there was), but the principle of A constitution (vs. "The Constitution") remains the same.

PaulDavisThe1st 4y ago

> > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. > The government can't pass laws against "Turtles Suck!" because that power is not granted them. I find this way of explaining things somewhat disingenuous. Very few powers are delegated to the federal government, but all of those that are are (because of the limitations of language) sufficiently ambiguous that they can interpreted as allowing all manner of legislation and regulation. > > One of the central points of a Constitution is to mark certain things off-limits to democracy. > This only applied to federal portion of "democracy" until the 14th amendment which added restricting the states re Bill of Rights. 14th wasn't adopted until 1868. I don't think it's that central. (1) you're suggesting that before the 14th amendment, a state could pass a "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." ? That seems preposterous. (2) It seems generally accepted that the supremacy clause of Article VI of the constitution is the basis for the US Constitution covering state law. (3) we live in 2022, and the US Consitution is as-it-is-today. The fact that something may have been added via an amendment (though above I dispute this) doesn't make it more or less "central".

areyousure 4y ago
> (1) you're suggesting that before the 14th amendment, a state could pass a "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." ? That seems preposterous. The words immediately preceding your quote are "CONGRESS shall make no ...", and so "preposterous" seems a bit too strong, doesn't it? In case anyone is curious, https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/First_Amendment_to_the_United_... says > Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment. (Fun facts: "Gitlow was the first major First Amendment case that the American Civil Liberties Union argued before the Supreme Court." Also, although Freedom of speech was incorporated in this case, Gitlow's conviction was nonetheless upheld.) You're welcome to read more about it yourself at https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R... . Therein, you'll find references to fun cases like Barron v. Baltimore (1833), finding "State governments are not bound by the Bill of Rights" before the 14th amendment, and United States v. Cruikshank (1876), finding "The right of assembly under the First Amendment and the right to bear arms under the Second Amendment are only applicable to the federal government, not the states" even after the 14th amendment. You may also find Article III of the Constitution of the Commonwealth of Massachusetts (1780) interesting: > As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily. When do you think Massachusetts stopped taxpayer funding of churches?

PaulDavisThe1st 4y ago

> This only applied to federal portion of "democracy" until the 14th amendment Just occured to me ... this just isn't the case for state constitutions. They serve the precise same role: marking out what is off-limits to "regular" democratic processes. To the extent that state and federal constitutions do not agree, there's some space for conflict and litigation there (or at least, there was), but the principle of A constitution (vs. "The Constitution") remains the same.