States and Rights
Left 2 Right has an interesting post about "strict construction" and Constitutional language, pegged to the phrase "separation of church and state."
The point of it is the old one that Constitutional language is just dead letters until illuminated by judicial interpretation. Old, but well-taken.
There's another point I'd raise, though. I would have done it in the form of a comment, but I can't seem to make the comments work on that site.
When the Constitution and the Bill of Right were made, they restricted, only the power of the federal government. The individual states, if they chose, could restrict any of the rights delineated in the Bill of Rights. And in fact they did. Massachusetts and Connecticut, for instance, taxed all their citizens to support the state-established Congregational church. South Carolina restricted the circulation of abolitionist newspapers.
As difficult as this is to accept today, it is consistent with the model of government the Framers had in mind: a balance of powers between the people, the states, and the federal authority. The Civil War and the Reconstruction amendments swept away this United States and replaced it with the one we have now. The equal protection clause, in the 14th amendment, eventually extended the federal protections to all citizens. But that was not the work of Madison and Jefferson. Our true founders, in modern America, are Thaddeus Stevens, Charles Sumner, Joshua Giddings -- men much narrower of mind, more passionate for control, and less celebrated than the men of 1776 and 1787.
Today, the old America is a historical memory. But it is impossible to talk about "strict construction" without bearing it in mind. When Madison wrote the Bill of Rights (a task he considered a waste of time), he was in no sense setting out a set of universal human rights for American citizens. He was telling the federal government certain things it was not allowed to do.
There was a general tendency among Americans in those days to regard these as natural rights. And many states did protect them. But that is not the same thing as saying they are Constitutionally ordained as such.
The point of it is the old one that Constitutional language is just dead letters until illuminated by judicial interpretation. Old, but well-taken.
There's another point I'd raise, though. I would have done it in the form of a comment, but I can't seem to make the comments work on that site.
When the Constitution and the Bill of Right were made, they restricted, only the power of the federal government. The individual states, if they chose, could restrict any of the rights delineated in the Bill of Rights. And in fact they did. Massachusetts and Connecticut, for instance, taxed all their citizens to support the state-established Congregational church. South Carolina restricted the circulation of abolitionist newspapers.
As difficult as this is to accept today, it is consistent with the model of government the Framers had in mind: a balance of powers between the people, the states, and the federal authority. The Civil War and the Reconstruction amendments swept away this United States and replaced it with the one we have now. The equal protection clause, in the 14th amendment, eventually extended the federal protections to all citizens. But that was not the work of Madison and Jefferson. Our true founders, in modern America, are Thaddeus Stevens, Charles Sumner, Joshua Giddings -- men much narrower of mind, more passionate for control, and less celebrated than the men of 1776 and 1787.
Today, the old America is a historical memory. But it is impossible to talk about "strict construction" without bearing it in mind. When Madison wrote the Bill of Rights (a task he considered a waste of time), he was in no sense setting out a set of universal human rights for American citizens. He was telling the federal government certain things it was not allowed to do.
There was a general tendency among Americans in those days to regard these as natural rights. And many states did protect them. But that is not the same thing as saying they are Constitutionally ordained as such.
Labels: Constitution, states
