Hugh quoted Article III, Section 2, clause 1. but that is further modified by clause 2, below:
Article III, Section 2, Clause 2:
In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party,
the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
That portion of clause 2 that I highlighted, extends power to the SCOTUS to hold original jurisdiction to any case a State might be party to.. As in Citizen v. State or State v. citizen, the meaning of clause 1 (and the 11th amendment) notwithstanding.
Much has been said about the limits of the Federal Government and the relation of the BoR. Yet there are still some things that have been overlooked, both in this debate, by the Feds and the Court itself.
The BoR were amended to the Constitution, because there were enough anti-federalists within 5 states that would not have ratified the Constitution without them. They wanted absolute protection of what they termed inalienable rights, that on the surface, were not protected at all.
Remember, we had just fought and won a war with England. Arguably the super power of that time. They new that despite the Magna Carta and other protections, the Monarch had ruled with an iron fist in the colonies. They new that any government would at some point, enlarge itself to threaten the rights of the common man. The founders were by no means unlearned men. They were well educated scholars and legalists. They knew their history.
Despite Hamiltons' and Madisons' insistence that this new government could never usurp more power than was enumerated, Five states demanded a Bill of Rights be included, or they refused to ratify the Constitution. Since 9 of the 13 original colonies were required for ratification, this presented a dilemma. It was agreed that a Bill of Rights would be added to the Constitution as amendments, and the new government was ratified.
Twelve amendments were proposed, of which ten passed and became the BoR. The BoR did not grant any rights, rather they contained further declaratory clause and restrictions upon the federal government. (Says so in the preamble to the proposed amendments.) The thought being that of these specified rights (and those unspecified via the 9th) would keep the federal government from ever touching them. Contrary to the thoughts of today, the ideas of that time were that these rights were absolute.
If the Congress passed a law that curtailed the national freedom of assembly, then the Amendments took precedence over whatever power congress thought it had. At least that was the initial idea.
Very quickly and very early on however, the Courts allowed the government to restrict certain aspects, as long as the restriction was as narrow as it could be and it was
a reasonable restriction. Later, the idea that the government could have a
compelling interest was used to trample rights.
The Court realized very early, that it had no true power if the Executive or the Congress decided to ignore its rulings (see Marbury v. Madison). So it either passed rulings that meant little or placated either the Congress or the Executive, or sometimes, both. It has done so ever since its inception.
There is however, another thought that was never popular, and it was one of the Reasons that George Mason walked out of the Constitutional Convention. It is commonly known that Mason was for a Bill of Rights and walked out because of that. But the BoR issue was in direct response to this:
Article VI, clause 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This Constitution, and the Laws of the United States...shall be the supreme Law of the Land.
Mason understood what the above meant. To a lessor extent, Madison understood. Which was why he changed his mind on the necessity of a BoR. At a later date, Jefferson understood. It was brought home by the Courts decision in Marbury v. Madison.
However, the Courts, the Congress and the Executives have all chosen to ignore this portion, except when it was convenient for them to exercise some power over the States and the populace, in order to achieve a specific goal. Arguments for increasing federal power have never used the Supremacy clause except in a very few and well defined areas.
The civil war was one of those areas. No state could leave the union without the permission of the Congress itself. Supremacy Clause. Later this was codified by SCOTUS in Texas v. White (1868).
Under the Supremacy Clause, no state can abrogate an individual right. Nor can the Feds themselves. While many would say that the amendments contained within the BoR did not affect the other articles of the Constitution (and many have made this argument and continue to make this argument), I submit that under the Supremacy Clause, any action by the Congress, the Executive, the Court, or the States that violate the BoR are made null and void at their inception.
Again, we come back to the Court. It has refused to uphold the Supreme Law of the Land, only in order that it may save face. Instead of standing firm on issues of Justice, it caves. Then it uses precedent (Stare Decisis) to further move us away from what was supposed to be a limited government with enumerated powers. This same reliance upon precedent has also been used to strip the states of their powers.
There was never a need for a 14th amendment, if the Constitution had been applied as it was written.
If the Court had stood up and gone on record to oppose the federal expansionists, we would not be where we are today. Regardless if the Executive or the Congress liked those decisions, they would be on record and perhaps the people would have taken them to task. Perhaps not. But the record of abuses would be concrete and not so convoluted that it takes a real effort to pin down when it began to happen.
Long Path posed the following (which I assumed to be in jest):
So why shouldn't the Necessary and Proper Clause, when applied to the power to provide for "the common Defence and general Welfare of the United States," allow the Government to trample a few rights?
And the answer is that the Supremacy Clause would forbid it. Anything that would touch upon the enumerated rights in the BoR would necessarily invalidate that legislation or regulation... Or any other thing that would touch upon those restrictions. Remember, whatever is amended takes priority over the former meaning.
The Federal government has no business in most of the areas that it now governs. Those are all areas of State Power. Unfortunately, we have always had a Court that was unwilling to take the lead.
Hugh writes:
The Constitution does not give all judicial power to the SCOTUS: it does not give them power over intrastate affairs i.e. matters between a citizen and his State.
Yes it does. And Art. III section 2 clause 2 gives the Court the power to litigate between a State and its citizen(s) if that State is infringing upon the rights of the citizenry (Supremacy Clause as it relates to the BoR).
...if the SCOTUS was supreme and whatever they said was the Constitution, then we could not possibly stray from the Constitution. Personally, I think we have strayed from the Constitution.
And that is my whole point. If they had the "balls" to stand up for what is right, instead of for political expediency, we would not be where we are. I absolutely agree with you, we have strayed very far from the Constitution and its plain meaning.
There were lots of compromises made there, too. Just because Lew Rockwell doesn't like the way that the 14th was passed and assigns it the blame for political strife over the last century doesn't make it so. We'd have been harping on other chords, and some other ammendment would have to have been passed. But 14A and it's application on the dual State/Federal level has righted a lot of wrongs over the last 10 decades or so. The goal is not social change, but political equality. The social change will largely have to occur on its own.