From: stephen@sprunk.org
On 21-May-14 13:04, Adam H. Kerman wrote:
> Stephen Sprunk wrote:
>> On 21-May-14 10:28, Adam H. Kerman wrote:
>>> Stephen Sprunk wrote:
>>>> 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, ...
Thank you.
>> But I'll address your response anyway:
>
> Well, you're not, just repeating yourself.
You apparently misunderstood me the first time, so I'm trying to explain
it to you in more detail.
>> 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.
Not at all; that is _why_ many folks appeal to federal courts: to
overturn state rulings that didn't protect them adequately.
Of course, if you're on the other side of such a case, you might feel
the federal courts have not protected your "right" to oppress others...
> 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.
That is an issue of preemption, not incorporation.
>> 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.
Federal courts require a "federal controversy" to have jurisdiction;
such frequently arise even in matters of state law due to incorporation.
For instance, many states passed bans on same-sex marriage; there is no
federal law preempting that, but federal courts are now overturning such
laws due to incorporation of the federal equal protection clause, which
introduces a federal controversy to those cases.
>>>> 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.
AFAIK, no court has established a right to "decent transportation", but
even so, there is no law _against_ you having decent transportation of
your own, so where is the "oppression"?
Just as the right to free speech does not require the govt to provide
you a soapbox to speak from, the right to assemble does not require the
govt to provide you a bus/train/etc. to your assembly.
>> 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.
I agree that it was judicial activism but not that 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.
Was he shot? That would be ironic.
>>> 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.
I'm not aware of any cases where the Bill of Rights has been found to
preempt similar but stronger rights in state law. Cite?
> btw, my state's supreme court first ruled against compulsory prayer
> in 1910, decades before the US Supreme Court got around to it.
Good for you. OTOH, my state's courts are still stubbornly fighting to
preserve their "right" to compel other people to pray--in spite of our
own state constitution and countless cases overturned by federal courts.
The religious nutjobs that get elected as judges here simply don't
care; they just keep on sentencing people to attend church, regardless
of the law, and few victims have the resources to appeal.
> 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.
There is no equivocation in the right to free speech either, yet courts
have still managed to invent all sorts of exceptions on their own, e.g.
the proverbial "yelling fire in a crowded theater".
>>> 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, ...
Explain what you mean by "federalized" here. The question is whether
federal law preempts state law, in which case there is no valid state
law on the matter, or not, in which case a federal court must follow
federal law _and state law_ to resolve the case.
Yes, preemption can be a serious problem, but that has _nothing_ to do
with the courts per se; that is a legislative problem. And state courts
are just as bound by that as federal courts are, so it's immaterial anyway.
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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