+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. 

+15

continuing from the preceding post

I was trying to just answer starting the first amendment with "Congress shall make no law" as an objection and did not expect to find this kind of additional support to my argument. Notice how the rest of the amendments were expressed at the execution stage. Doesn't that fit also targeting the states because you don't know who is the responsible party there? How about adding to that how in the first amendment when the legislating entity was known it was targeted and the amendment was expressed at the legislation stage? 

+14

I have noticed that contrary to my objection in post +11, there is a view for at least some of the prohibitions in section 9 as being in general form (Although, if I were arguing for that side I still wouldn't exchange that with how the first amendment starts with "Congress shall make no law" which I just noticed probably because of relying on that the objections in the court opinion would be the most difficult to me). However, it seems to be far from being strong to sufficiently support exclusive interpretation for that meaning given the section in which those prohibitions were mentioned. Why didn't they try to make them more clearly for congress? Why would they do that? To avoid an argument like that in the court opinion? Would such possibility occur to you if you were on the position contrary to what the argument of the court suggests? Also, having they done that wouldn't that open the door in a similar way to arguing that congress must be mentioned explicitly?

+13

Notice that according to the missing exclusivity maker explanation of the preceding post, those state prohibitions mentioned in post +9 then again in post +11 where the states already involved as part in the congress position (signing a treaty and sending  marque and reprisal letters according to the implication taken from the court opinion) are not a precautionary measure.

+12

continuing from the preceding post

Here is an additional thing. Where did the exclusivity, relative to the states, of the congress-can actions come from? The exclusivity of those actions relative to other branches of the government can be seen implied because the constitution was dividing power among those branches of government as part of the process for creation of that government. There was a combining entity being created and because of that the constitution was applying its authority on all its powers. Therefore wherever any kind of power gets assigned to only one party it means it is all the power of that kind. But the constitution was not in the process of dividing power between federal and state governments as part of combining them to create a third entity. Therefore the congress-can actions needed to be prohibited to the states because there were no other exclusivity indication for those actions relative to the states.   

+11

continuing from the preceding post

I just want to know, according to that opinion of the court, how should the prohibitions in section 9 and 10 have been expressed if prohibitions in general were seen to apply on both the federal and the state governments? Should the section about what congress can do be followed by general prohibitions and confuse the reader of whether they meant to apply generally because they were stated in that form or just on congress because they came after the section speaking about what congress is allowed to do? Or is it that the opinion is suggesting that the entity construction approach that led to the preceding congress-can section would not have been used to begin with? If so, why? If not, then what is left of that "plain and marked line of discrimination between the limitations" on the powers of federal and state governments, is only the prohibitions on states related to things the congress was empowered to do. For the later, like it was mentioned in post +9, some of those actions, like coining money for example, leads to different results based on the actor and because of that the empowerment to congress to do them could be seen to be only about the part related to the federal government (coining federal money versus coining state money). Others maybe seen justified because of special relation to specific states. For example, a state could see that congress power to impose duties on imports and exports is not a replacement but in addition to its capability to do the same on its own border. Or a state can see that it may also have the power to make a treaty with another nation it borders. 

As mentioned in post +9, thanks for the help of the court opinion itself with the treaty and declaration of war (as implied by the issuance of marque and reprisal letters according to the opinion)  examples , we can see that the framers precautionary  measures reached even things where the states are directly involved as parts of the whole country and not just about how assigning a role to the congress could be understood.

We are talking about a constitution for the whole country and therefore, by default, general prohibitions apply whenever they are applicable. But even if we start according to what the opinion of the court says, without sufficient argument, that the constitution was intended to be, one could still ask how for the framers of the amendments seeing all the precautionary measures in the constitution for preventing misunderstanding who can do what, that they would leave amendments written in general prohibition and described from the receiving side, making them having one potential meaning and emphasizing more that it is about the end result and not about who can do those actions, like those amendments without explicitly stating that they do not apply on the states? That question acquires even more importance given that they showed explicit attention to what powers are kept for the states in amendment 10. Also, the thing could have been done by merely adding the word "explicitly" before "prohibited by it to the States".      

       

+10

In the preceding post, I took the level beyond that of basing an opinion on that, despite their general language taken isolated from their section, prohibitions on congress in a section designated for that purpose in a similar way to how the preceding section was designated to the empowerments of congress, were also repeated in the section about prohibitions on the states. Instead I took the level of questioning why this divided approach was chosen to begin with. However, it is still hard to see what was difficult to understand or strange and unexpected to see that a constitution, being a constitution, starts with creation of the government by first focusing on building its various entities and have procedures or actions that can be done to be mentioned within that original focus. It is not unnatural then to have the can't part follow by being explained within the same separate focus. In addition, having a need or a desire to describe the can't actions from the creation side, which may be the result of feeling more natural or easier because of technicality or focusing on the power of the government and/or its entities, could be a cause for sections separated per entity for those prohibitions to make it less susceptible that those prohibitions apply differently based on the actor.   
The bill of rights, on the other hand, was focused from the start on the actions of that government toward its citizens. Is this what the court searched for "in vain"? Also, describing prohibitions from the receiving side related to affecting any citizen instead of the creation side with its various power entities makes it more applicable to use one general prohibition because there is less probable confusion that the target of the prohibition is the action itself based on the actor and not its end result.

+9

continuing from the preceding post

How is it that opinion is not criticized?

If the court have taken the separate sections of prohibitions for federal and state governments (section 9 and 10) as being needed from the start to apply those prohibitions on both, it needed to answer why couldn't that be the result of the flow of expressing things which preceded section 9 with the section describing what congress can do. Why couldn't it be that the focus on entities not procedures was the starting point? That, actually, is probably the better path because many of those procedures are easier to express from the creation end than from the receiving end. At least with the prohibitions, general prohibition from the law creation end does not imply generality of the prohibition as much as it does from the receiving end and that is why each entity may need to be targeted specifically with those prohibitions. That is because prohibitions expressed from the creation end suggests the action being the target of the prohibition, instead of the end result, and that in turn could be seen to vary depending on the doer more than prohibition expressed from the receiving end. Therefore one may try to avoid, by specifying targets, being seen intending this relative difference .

Also, similar to the above, for the empowerment side, the prohibitions on states of what was empowered to the federal government could be caused by the probability of the same actions being seen as different things by extending the view of them to their actors. Coining  money could be justified by creating money for the state only. The action is one of those that creates different results based on the doer. 
As for entering a treaty or issuing of  marque and reprisal letters, assuming the later being equivalent to declaring a war, the court seems to have argued against itself with those examples. That is because in both the decision of the federal government include the involvement of the states but they were still listed as prohibitions on the states.  

As for the talk about the purpose of the constitution at the beginning of that opinion, the preamble states the creation of a "Constitution for the United States of America" not a constitution for merely its federal government.

+8

I have been wondering where is the problem in seeing that the constitution and its bill of rights by default also apply to the states. After taking a look at the reasoning in the CASE OF 1833 I started thinking if everybody was really convinced with that or they were politically motivated with its putting less pressure on the union. In any case, it seems that the court was wrong there and that it is not hard to counter that opinion.