From: stephen@sprunk.org
On 21-May-14 10:28, Adam H. Kerman wrote:
> Stephen Sprunk wrote:
>> On 20-May-14 13:13, hancock4@bbs.cpcn.com wrote:
>>> On Friday, May 16, 2014 6:27:19 PM UTC-4, Stephen Sprunk wrote:
>>>> However, one can fairly easily _manufacture_ a federal
>>>> controversy to give federal courts jurisdiction; today this is
>>>> generally done via the 14th Amd, but prior to that diversity
>>>> cases were common as well.
>>>
>>> Heck, for decades there has been a ton of federal cases based on
>>> the 14th Amendment.
>>>
>>> _IMHO_, that has been greatly overused, far beyond the bounds of
>>> reasonableness and common sense. The result has been lopsided
>>> court orders creating expensive burdens for industry and
>>> government in day to day operations. That extensive usage has
>>> inspried considerable conservative sentiment for folks like
>>> Reagan, the tea party, etc.
>>
>> Um, no. The result is the same, except in cases where state courts
>> have not been as good at protecting their citizens as the federal
>> courts have; in fact, that is the main reason people _want_ to get
>> their cases into the federal courts: the state courts failed to
>> protect them.
>
> That's a monstrously ignorant statement. State regulation of business
> can be rather different than federal regulation. Some states had
> innovated in consumer protection. Corporations whined to Congress
> about having to do business under different rules in different
> states, Congress found some trivial way to thwart federalism and
> declared a nationwide regulation on that industry. More often than
> not, the result has been to "protect" consumers with a nationwide law
> with weaker consumer protection than in the various states that had
> older laws on the books.
That has nothing to do with 14th Amd. claims, which is what hancock and
I were debating. But I'll address your response anyway:
If the federal law in question preempts state law, then state courts are
obligated to enforce the federal law, same as a federal court; if they
do not, one of the parties will simply appeal to a federal court, which
will overturn the ruling and send the case back to state court.
OTOH, if the federal law in question does _not_ preempt state law, then
federal courts are obligated to enforce the laws of the state where the
case originated _in addition to_ federal law, so where the case is heard
doesn't affect anything.
This _was_ different prior to 1938, when federal courts ignored state
law and instead enforced federal common law, resulting in vastly
different decisions depending on where a case was heard, which is why
SCOTUS acted to resolve this inequity.
>> If it weren't for that, segregation and even lynching would still
>> be legal, as would many other forms of minority oppression that
>> are, in many cases, still tolerated by state courts. They do
>> occasionally go too far, but on the whole, we're a lot better off
>> this way.
>
> Yeah, well, we're no longer in that period.
Says someone who is not in one of the minorities still oppressed today.
>> A better example is free speech. Most states have free speech
>> rights in their own constitution, so you _could_ legislate such
>> cases in state court, but if that fails (or you just want to save
>> time), one can also go to a federal court under the US 1st Amd,
>> which was incorporated to the states under the 14th Amd.
>
> That's actually a worse example, for generally, state constitutions
> had stronger language protecting speech and publishing than the
> federal constitution does. If you want to talk about judicial
> activism, then incorporation of speech into the 14th Amendment is
> about as blatant as you can get. The plain language of the 1st
> Amendment, which begins with "Congress shall make no law", was
> written DELIBERATELY to allow states to protect speech under their
> own constitutions.
Now you're arguing against 14th Amd incorporation as a whole, not
federal vs state courts. I happen to agree with you on that personally,
but SCOTUS obviously doesn't agree with either of us.
Until recently, one could have argued incorporation was a mistake that
has only stayed in place through stare decesis, but McDonald v Chicago
(2010) incorporated the 2nd Amd for the very first time, so even the
"strict constructionists" now controlling SCOTUS haven't changed their tune.
> With regard to religious freedom, again, my state's constitution was
> much, much stronger. We have a much stronger free exercise clause.
> We have a clause preventing denial of civil, political, and property
> rights on the grounds of religious opinions, and language against
> compulsion to worship without consent that's simply not found in the
> federal constitution. Interestingly, there's no anti-establishment
> language.
OTOH, SCOTUS has "invented" similar positive protections to round out
the negative protections in the 1st Amd, and those have been
incorporated to _all_ of the states, not just ones with such language of
their own.
> We had a due process and equal protection clause, too, so federal
> incorporation may have limited rights and remedies in state law.
I don't see how; unless federal law is found to preempt state law, state
laws should still apply _in addition to_ federal laws--in both federal
and state courts.
S
--
Stephen Sprunk "God does not play dice." --Albert Einstein
CCIE #3723 "God is an inveterate gambler, and He throws the
K5SSS dice at every possible opportunity." --Stephen Hawking
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