+22

Actually, also in relation to POST 12, it seems that the way the constitution was written shows that branch exclusivity and it did not take the risk of depending on the creation argument mentioned in that post and its possible susceptibility to arguing that the creating instructions did not start from the zero stage.

+21

Continuing from the preceding post

The constitution starts with the creation of this three branch entity to lead the union. However, while this entity represents the whole to the outside, it still has its separate existence as a thing inside. But after the creation of this entity, the constitution itself, unless otherwise indicated, would be, like the rest of the world, talking to that entity from the outside. It is ironic how the opinion of the court itself recognize this separate existence except that it does that from the outside where it should be hidden from the view.  

+20

Maybe already noticed, but  I was wrong in POST 12 to say that there was no exclusivity between the states and the federal government because the constitution was not dividing power between those entities. It is congress that has no exclusivity with the states. So although congress has exclusivity relative to other branches of the government, giving it the power on something does not tell if that is just locally relative to the other branches of the federal government or within the whole union. In other words, we don't know if congress should be taken as representing just that head or the whole body with it.  

+19

Continuing from the preceding post

With the amount of material available here, there is a potential supply of arguments to who knows how long. However, one thing I don't find easy to miss pointing out is how the opinion of the court seems to reverse things making it like it is more normal for the creators of the amendments to point out their applicability on the states than it is the other way around. The opinion probably would have been in better position to wonder about the absence of such explicit declaration of intention had it taken the position of excluding the general government instead. But here, where else in the constitution it talked to a nonexistent entity? You can for example send the instructions in Section 9 and 8 in a letter addressed to Congress and those in 10 to the states, but to whom you should address the letter containing the amendments to target the general government only? The executing entity is the general government and for it to act on the amendments without including the states those amendments themselves need to contain something to stop that flow down.     

+18

Continuing from the preceding post

The different issues mentioned in amendment one suggests that the the focus there was on congres and that imply that all the talking of all the amendments that is related only to congress is contained there. Otherwise, the right to "petition the Government for a redress of grievances" would probably better fit amendment 7 or 5. If it is an issue that it would need to be stated in an affirmative way, we already have the beginning of amendment 6 and 7 stated that way (and this is unlike how the constitution separated the parts related to the yes and no and had each yes part preceded by "To") .

They mean the amendments just on the federal government and say things like "In all criminal prosecutions"? 

The look of the amendments, after the first, in being about the end result seems like coming from a totally different world than the look of dividing power or who can and cannot do what that comes from Section 8, 9 and 10 of the constitution.

Lets take another look at the first amendment and try to answer this: What is the end purpose of it? 

If the end purpose is to prevent the effect of those actions on people then it needed to talk about just the end result of those actions like the rest of the amendments or, if that intention is limited to only actions coming from the federal/general government, to point at the whole government. 

On the other hand, if the end purpose is to express limitations on the legislative power of congress then we ask : Is that end purpose shared with the rest of the amendments? If the answer is no then the that mentioning of congress should not limit the application domain of the rest. If the answer is yes then, aside from other things, and this is a very direct point, how would it apply on the third amendment? The third amendment targets only the executive authority because it only requires "a manner to be prescribed by law". It speaks about the need of a law regarding the matter, any law, how would that be a restriction on congress?        

 

+17

continuing from the preceding post

It is important to notice how much the amendments describe things from the receiving side and the end effect of those prohibited actions more than those in Section 9. Look at how much hard it is, if possible at all, to take the amendments closer to the end from the side of the effect and the effected. Section 10 in the constitution spoke using high level words from Section 9 like "Tax", "Duty" and "Capitation" but that was related to actions between the state and the external world. Speaking about things like "Bill of Attainder"  and "ex post facto Law", on the other hand, is intended to target the process first. Still all of that is within the domain of targeting the doer or the effecting side not the passive side affected by the action. But with things entirely internal to a state like dealing with its citizens and the prohibitions are about the effect and the passive side effected by that effect from any potentially capable effecting entity, as those in the amendments, there is a bigger opportunity to circumvent the high level talk used and still cause the same effect intended to be prohibited.

+16

continuing from the preceding post

And notice how showing this pointing with the closest specificity they can at the first amendment help in showing that they had thought about doing that and had chosen to do it from the beginning. Also notice how, unlike number 1 in section 9 of the constitution, the content of the first amendment seem significantly more versatile. It is more like the whole section 9. That helps in suggesting that if the intention is to apply that specificity of pointing at congress to the rest of the amendments they could have been also mentioned as parts of the first. Also, if there was any intention to continue applying specifying congress to the rest then probably other amendments would have been better fit to follow the first because of the closeness in content. Also notice how the third amendment could suggest that the order in which any amendment may appear may not be entirely dependent on its relative significance to the rest.