mheslep
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The amendments and most of the constitution are clearly about what the federal government may not do. At the founding there were only a handful of federal crimes like treason and counterfeiting. Crimes against individuals and civil remedies for them were matters for the states. Several states even had their own official state religions about which the first amendment ("Congress shall pass no law...") had nothing to say.russ_watters said:...
But the same inconsistency applies to people. Does "shall not be infringed" just mean "shall not be infringed by the government" or does it mean "shall not be infringed by anyone"? I think the answer is simple: if the government were not able to protect the individual rights of one person against infringement by another, then there would be no basis for the existence of a criminal or civil justice system.
http://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964#Title_II" case which allowed government regulation of individuals through the interstate commerce clause (Filburn was ordered to burn his crops and pay a fine). As far as I can tell, every modern intervention by the federal government in business or in the lives of individual Americans comes through the same path - that 1942 interpretation of the commerce clause.That's, imo, a clear case for the logical necessity of incorporation, but I'm not completely clear on the historical path that led to the present-day reality of it.
This also means that logically, the Civil rights act must either be superfluous or unconstitutional:
-If the 10th Amendment saying that other rights are reserved for the people really also means that the rights outlined in the Bill of Rights are only to/from the federal government, then the Civil Rights act must be unconstitutional, since it is extending those rights beyond what the Constitution allows.
-If it was already intended by the Constitution that the rights apply downhill, then the 14th Amendment and the Civil Rights Act must be superfluous.
I'm not entirely clear on the history, though...
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