No Fourteenth Amendment?

Until 1967 interracial marriages were state by state, the Supreme Court then made it nationwide based on the 14th. What Article IV of the Constitution does is make it where one state must recognize something done in another state, it doesn't mean that all states must do the same thing; one state can say "I'm not having gay or interracial marriage" but under Article IV it must recognize a gay (or interracial) marriage done in another state; it is the 14th Amendment that requires (under Supreme Court interpretation) for all states and the federal govt to have the equal rights for gay or interracial marriage. (Article IV is in the main original Constitution, I'm not sure if you understand that I'm NOT talking about an amendment). Without the 14th Amendment you can't apply the ANY of the restrictions the Constitution puts on the Federal govt upon the states; for example- freedom of speech protects an individual from censorship by the Federal govt and prevents Congress from passing laws restricting speech. It does NOT prevent states from passing laws restricting your speech or right to protest. It is the 14th amendment that puts those restrictions on what Congress can do and now applies them equally to state legislatures; BUT it requires for the Supreme Court to apply the 14th amendment on these rights given by the Bill of Rights, which is why you see that applying the 2nd amendment to the individual states took 150 years even though the 14th amendment had already been used to apply all other rights onto the states much earlier.
Huh. I really did not understand how big the influence the 14th was.:eek::eek:

It seems to mean you get a U.S. that could be a genuine crazy-quilt of state laws.:eek: Which could be crazy strange.:eek: (Also :cool::cool: .)
I'm not sure if you understand that I'm NOT talking about an amendment
Good point. I'm not sure I understood, either.:openedeyewink: It's not been a couple of my best days, for sure.:)
 

althisfan

Banned
The scope of the federal government is likely less.
The scope of the federal govt is the same; the ability to force the states to give their citizens the same rights that the Bill of Rights gives them on a federal level would not exist though. The size and ability of the federal govt (its scope) would be the same though. Only the judiciary would see a smaller scope as you wouldn't be able to apply the Bill of Rights to the states; you wouldn't have the ability for citizens to get redress in the federal courts over things like freedom of press, religion, speech, assembly, or bear arms. You could see states outright banning all guns, or restricting the ability of the press to report on certain issues and no one could do anything about it.
 
The scope of the federal govt is the same; the ability to force the states to give their citizens the same rights that the Bill of Rights gives them on a federal level would not exist though. The size and ability of the federal govt (its scope) would be the same though. Only the judiciary would see a smaller scope as you wouldn't be able to apply the Bill of Rights to the states; you wouldn't have the ability for citizens to get redress in the federal courts over things like freedom of press, religion, speech, assembly, or bear arms. You could see states outright banning all guns, or restricting the ability of the press to report on certain issues and no one could do anything about it.
:eek::eek::eek:

Do you see that as absolute? I imagine SCotUS finding ways to achieve at least some of it through other amendments.

It also crosses my mind, if you're right, it suggests Miranda wouldn't (couldn't!) become a national standard. Again, I have to think that would end up in SCotUS; am I wrong that's still binding on the states?

Edit: It also seems likely federal drug laws, & RICO, to name just two, would be less effective, perhaps impossible.:eek: If states have (nearly) unfettered power, Colorado's drug legalization would be immune to *DEA interference. Indeed, the proposals to arrest federal agents who operate without local okay might even stand.:eek:
 
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althisfan

Banned
:eek::eek::eek:

Do you see that as absolute? I imagine SCotUS finding ways to achieve at least some of it through other amendments.

It also crosses my mind, if you're right, it suggests Miranda wouldn't (couldn't!) become a national standard. Again, I have to think that would end up in SCotUS; am I wrong that's still binding on the states?
Prior to Miranda, what are considered Miranda rights already existed in part through the incorporation of those rights in the Uniform Military Code of Justice and the warnings given by the FBI prior to interrogation, so there was already precedent for Miranda rights to exist at the Federal level; however to apply to the states the 5th amendment due process is almost impossible because it is the 14th amendment that specifies that due process applies to the states, therefore we should presume that it wasn't universally accepted in legal circles that due process applied to the states prior to the 14th, otherwise there wouldn't have been a need for it. Every time Scotus has applied one of the Bill of Rights to the states they have specifically cited the 14th amendment, but that doesn't mean they couldn't find some other way you are correct. However, Scotus has always had to walk a very special line, its ability to declare constitutionality is not mentioned in the Constitution and Congress CAN pass a law stripping Scotus or any federal court of appellate jurisdiction, but not of original jurisdiction in types of cases where the US Constitution specifically says that Scotus has jurisdiction. Basically Congress can literally say "we pass legislation A, and federal courts can't take appeals regarding it". This is called jurisdiction stripping, when Ex Parte McCardle came before Scotus in 1869 Congress actually did just this and removed Scotus' right to review the appeal. The Court agreed and dismissed the case- "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer" and this was upheld several more times when Congress has intervened and removed Scotus jurisdiction.

There's nothing specific in the Constitution that the Bill of Rights CAN'T apply to the states, however it is clear that they were designed to limit specifically the Federal government, and if the Founders had intended for them to apply to the states they would have said so (but of course then it probably wouldn't have received much support from the delegates or the state gov'ts).
 
Prior to Miranda...
Thx for all of that. I had no idea.:eek: It does make for an extraordinarily different U.S.
Basically Congress can literally say "we pass legislation A, and federal courts can't take appeals regarding it". This is called jurisdiction stripping
:eek::eek::eek::eek::eek::eek::eek:

This effectively puts Congress above the law.:eek: What SCotUS did in ref the Gitmo detainees does give me some small comfort, & even the finding in McCardle seems to suggest SCotUS wasn't trying to completely deny recourse--but previous SCotUS lineups seem very, very much less inclined to favor defendants.:eek: ( :mad: :mad: )
There's nothing specific in the Constitution that the Bill of Rights CAN'T apply to the states, however it is clear that they were designed to limit specifically the Federal government
In essence, preventing an overweening USG from imposing them. That fits my understanding of the early U.S. attitudes on states' rights. A U.S. where the 14th never happens is likely to be different enough even without it for those views to differ.
 
The scope of the federal govt is the same; the ability to force the states to give their citizens the same rights that the Bill of Rights gives them on a federal level would not exist though. The size and ability of the federal govt (its scope) would be the same though. Only the judiciary would see a smaller scope as you wouldn't be able to apply the Bill of Rights to the states; you wouldn't have the ability for citizens to get redress in the federal courts over things like freedom of press, religion, speech, assembly, or bear arms. You could see states outright banning all guns, or restricting the ability of the press to report on certain issues and no one could do anything about it.
It's a lot harder to expand the Commerce Clause into oblivion (and have a federal policy on abortion) without the 14th amendment.
 

althisfan

Banned
It's a lot harder to expand the Commerce Clause into oblivion (and have a federal policy on abortion) without the 14th amendment.
The commerce clause is still the all-powerful dominance of legislative reasoning for why the Federal govt can pass a law regardless of the 14th, the 14th doesn't expand it at all. Now, with abortion yes, the 14th does come into play, but it doesn't affect the SCOPE of the federal govt, a policy or law saying "x is legal" or illegal, doesn't expand the scope of the govt. Saying "we have a new bureau, department, service, etc to enforce it, that is expanding the scope of the govt. There is a subtle, but important difference in political science; I'm not going to use laymen's definitions, sorry.
 
The commerce clause is still the all-powerful dominance of legislative reasoning for why the Federal govt can pass a law regardless of the 14th, the 14th doesn't expand it at all. Now, with abortion yes, the 14th does come into play, but it doesn't affect the SCOPE of the federal govt, a policy or law saying "x is legal" or illegal, doesn't expand the scope of the govt. Saying "we have a new bureau, department, service, etc to enforce it, that is expanding the scope of the govt. There is a subtle, but important difference in political science; I'm not going to use laymen's definitions, sorry.
If I'm understanding correctly, then, something like DEA would be impossible, but giving DoJ authority to deal with new federal drug laws is okay? Or do you include DEA under DoJ, effectively a "reapportioning" of existing authority?

If DEA is de jure impossible, it suggests the FBI is, too.:eek::eek: And so is EPA.:eek::eek: And CIA.:eek::eek:
 

althisfan

Banned
If I'm understanding correctly, then, something like DEA would be impossible, but giving DoJ authority to deal with new federal drug laws is okay? Or do you include DEA under DoJ, effectively a "reapportioning" of existing authority?

If DEA is de jure impossible, it suggests the FBI is, too.:eek::eek: And so is EPA.:eek::eek: And CIA.:eek::eek:
The 14th amendment has nothing to do with any of those parts of the Federal govt. I said the scope of the govt doesn't increase with the 14th amendment, I did NOT say the scope of the govt CANT increase without it. The DEA, FBI, EPA, and CIA can and would still exist without the 14th amendment. The 14th amendment applies the Bill of Rights to the states, basically in short hand it says "the states now cannot do to their citizens whatever the federal govt cannot do to the citizens"
 
The 14th amendment has nothing to do with any of those parts of the Federal govt. I said the scope of the govt doesn't increase with the 14th amendment, I did NOT say the scope of the govt CANT increase without it. The DEA, FBI, EPA, and CIA can and would still exist without the 14th amendment. The 14th amendment applies the Bill of Rights to the states, basically in short hand it says "the states now cannot do to their citizens whatever the federal govt cannot do to the citizens"
I really do have to stop replying at the end of the day instead of the beginning...:oops::oops: I appreciate your patience.:cool:
 
Supposing it never happens? Either because the ACW doesn't, or because the basic protections for blacks are written into the Thirteenth, but don't include many of those in OTL's Fourteenth.

So, no due process guarantee. No right to silence. No exclusionary rule or fruit of the poisonous tree doctrine. (That actually fits Canadian legal doctrine, FYI.:eek::eek:) No corporate personhood or corporate citizenship. Probably no Giglio, Kyles, or Connick, either.

What does the U.S. look like in this event? People compelled to testify in their own defense? Many, many more people in jail, falsely convicted? Much less corporate influence on politics? (It probably means Citizens United doesn't happen; it certainly means it'll be decided the other way, if it does.:cool::cool:)

Anything else interesting?

At least federally, you would still have a due process guarantee, a right to silence, and ultimately probably still an exclusionary rule and a fruit of the poisonous tree doctrine. The only difference the 14th Amendment made was the the Court interpreted it to apply these same rules to the states, not just to the federal government.

In the absence of the 14th Amendment, however, I believe that the Court would still eventually apply some of these rules to the states, probably using the Guaranty Clause or else directly in that some of the Bill of Rights refer directly to the rights of the people.

You are wildly overestimating the effect of the 14th Amendment. I don't want to be too cynical here, but a lot of constitutional rules that OTL are located in the 14th Amendment would simply be "located" by the courts in some other part of the Constitution. Because those rules didn't happen because someone read the 14th Amendment and felt compelled to announce the rule. They happened because the legal profession and the intellectual elites felt like a rule was needed and then looked for part of the Constitution to justify it.
 
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At least federally, you would still have a due process guarantee, a right to silence, and ultimately probably still an exclusionary rule and a fruit of the poisonous tree doctrine. The only difference the 14th Amendment made was the the Court interpreted it to apply these same rules to the states, not just to the federal government.
Given the same judicial environment, IMO that's may be pretty likely. The thing is, any U.S. where the 14th never arises is probably different enough for the same list of PotUSes, let alone SCotUS justices, unlikely in the extreme.
In the absence of the 14th Amendment, however, I believe that the Court would still eventually apply some of these rules to the states, probably using the Guaranty Clause or else directly in that some of the Bill of Rights refer directly to the rights of the people.
I take from that the 14th is more a "signpost" of Congressional intent, a clear marker how to decide cases, & there are other routes (less-travelled OTL) to the same outcomes.
You are wildly overestimating the effect of the 14th Amendment. I don't want to be too cynical here, but a lot of constitutional rules that OTL are located in the 14th Amendment would simply be "located" by the courts in some other part of the Constitution. Because those rules didn't happen because someone read the 14th Amendment and felt compelled to announce the rule. They happened because the legal profession and the intellectual elites felt like a rule was needed and then looked for part of the Constitution to justify it.
I may very well be. I look at the text, as I've read it, & it looks like it covers a lot of ground. I've also seen SCotUS quite reluctant (AFAICT) to protect individual rights, especially when the infringement is at the state level.

Might this TL see lawyers, & judges, looking harder for other avenues? Maybe. And they might even find them. They might well, also, have justices more sympathetic--or much less so--than OTL...
 
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