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Bob Cottrol on Cruikshank
Prof. Bob Cottrol comments on that ruling in today's SCOTUSBlog.
Hat tip to reader Alice Beard...
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I guess living in a lie is better than being honorable, i.e. modern court decisions that destroy the true system of government for which the Framers fought and died.
You have identified one of the biggest problems with the American judicial system at this point. With the thousands and thousands of reported cases out there, anyone can find a quote from a single case that will support just about any proposition that needs supporting. Context means little when you have to read page after page after page of a decision to figure out what the hell the case even means. Combine that with the fact that most federal judges rely heavily on law clerks who are just a year or two out of law school.
And don't even get me started on the ridiculous overuse of so-called expert witnesses.
Graystar says: "I see Cruikshank as a correct, but incredibly misunderstood, opinion. Maybe one day people will actually read the entire opinion, rather than pull snippets here and there out of context."
If memory serves, the defendants in the Cruikshank case were -- in fact -- state actors. (i.e., they claimed the legal authority to do what they did, one of them claimed to have won election to county/parish judge or sheriff) They killed black men trying to exercise their right to vote in a (at least partly) federal election.
So how is Cruikshank a correct but misunderstood opinion?
The Cruikshank opinion clearly explains the relationships between federal government, state government, delegated powers, and our rights. It also explains, with crystal clear clarity, the protection of the Fourteenth Amendment...
“The Fourteenth Amendment prohibits a State from depriving any person of life, liberty, or property without due process of law, but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.”
Cruikshank makes clear two things. First, our fundamental rights are under the protection of the states. That’s where the authority was before the United States was created, and it has never been delegated to the federal government.
Second, if a state doesn’t protect your rights, the federal government will make it protect your rights.
This was the problem with Cruikshank. The federal government was trying to assume the police powers of the state...powers which were never delegated to the federal government. What it should have done was to bring an action against the state for not protecting the rights of its citizens, and then force the state to do so, under the Fourteenth Amendment.
The case of the Ten Commandments monument in Montgomery, Alabama is a perfect example of how this process is supposed to work. Citizens complained to the state that their rights were being violated by the display; the state did not act, so they went to the federal government, who forced the state to protect the rights of the citizens (by removing the monument.) That’s the Fourteenth in action, exactly as described in Cruikshank.
But somehow, Cruikshank is taken to mean the opposite of what it explicitly states. Not quite sure how that happened...
I see Cruikshank as a correct, but incredibly misunderstood, opinion. Maybe one day people will actually read the entire opinion, rather than pull snippets here and there out of context.