From: ahk@chinet.com
Stephen Sprunk wrote:
>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.
No, it's not specific to the 14th Amendment, although I'm not willing to
let you get away with blanket crap about states being bad actors and the
federal government being the good actor. The point you miss is that it
depends on the area of law, the historical time period, and more often
than not, the willingness of the judge to protect rights and remedies of
the weaker party.
>But I'll address your response anyway:
Well, you're not, just repeating yourself.
>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.
That contradicts your earlier comment about the state failing to protect,
so plaintiffs want federal protection.
The issue I've raised as counter-example is that there are no shortage of
isntances in which federal law has been used to reduce or eliminate rights
and remedies from state law.
>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.
Your statement here doesn't sound correct. If federal law isn't applicable,
a federal judge will rule lack of subject matter jurisdication to have the
matter heard in federal court. I don't believe a federal court can rule,
"Judgement for the plaintiff under state law such and such" just "There is
no remedy for the party bringing suit under federal law." But an actual
lawyer will have to explain.
>>>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.
Sure I am. There's no remedy to obtain decent transportation in law. I
am a member of an oppressed class, just one without protection.
>>>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.
Considering "incorporation" was mostly judicial activism (not entirely),
it's the same thing.
>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.
McDonald just died a month or so ago, btw.
>>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.
It thwarts the stronger protections of liberty found in certain state
constitutions, in my opinion. btw, my state's supreme court first ruled
against compulsory prayer in 1910, decades before the US Supreme Court
got around to it. I have no idea what the history of the case was nor
why it got appealed, given that there simply no equivocation in the
constitutional language making it an absolute right, not conditional
in any way.
>>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;
Sigh. If federal courts have federalized an issue, then procedures and
enforcement of rights and remedies must follow federal court rulings. State
courts are then precluded from taking different approaches to the same
subject matter, that might have led to better outcomes or more expedited
procedures. With 50 states but just one federal government, it's more
likely that innovation would have come from states. It's a real problem.
>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.
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