From: ahk@chinet.com

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.

Historically, with regard to protecting individual rights, it's been more
typical than not that innovation came from state constitutions and state
law, that the federal government was late to the party. Women's rights
are the obvious example, in which western state desperate to address the
shortage of women willing to settle the sparsely-settled frontier had
laws giving women the franchise.

In the bad old days of Jim Crow, I'd agree that certain state courts
failed to protect individual liberty, but that was very bad judges and
not always bad state constitutions and laws. But then, northern courts
could be ruled by judges who were prejudice bastards as well. There's
certainly no shortage of federal judges who won't rule in favor of the
weak against the powerful, even when the weak are trying to avail themselves
of remedies in federal law.

In criminal law, you had the panic over crack cocaine and extremely harsh
sentences for trivial possession and dealing small amounts of drugs. That
was led by the federal government; most states followed by increasing
criminal penalties.

>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. Furthermore, let me remind you
of the post-Reconstruction period, in which federal courts "forgot" all
the laws of Reconstruction protecting individual liberty, just kind of
assumed that the Hayes-Tilden compromise was a political deal that
invalidated all those laws despite the fact that Congress had repealed
none of them. That situation existed for decades, and it wasn't until
the 1950's that lawyers specializing in civil rights could regularly start
to find federal judges willing to accept the idea that these laws remained
in force and that plaintiffs and defendants could avail themselves of the
rights and remedies found in those laws.

There are useful state laws and useful federal laws, and no shortage of
bad laws at both levels of government. You have judges willing to allow
the weak to avail themselves of rights and remedies found in law, which is
always limited, and you have judges who see the weak as weeds that shall
be pruned to allow the strong (or more likely, the homogenious) to be
free from adapting to competition and change, and these are found at both
state and federal courts.

It's different legal systems with plenty of overlap, but there sure as hell
is NOT way to make a statement that one has more rights and remedies to
protect himself in federal law versus state law. It really depends.

>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.

My state's constitution has a bill of rights. Most of this language goes
back to our first or second constitution; we're now on our fourth. The
bill of rights incorporates language from the Declaration of Independence,
which the federal constitution fails to do. My state's constitution has
far stronger language on speech, writing, and publishing, making it an
individual liberty, and not using the negative language of the federal
constitution. There's even explicit language stating that the truth is a
sufficient defense against a charge of libel (without mentioning slander,
whoops).

Thanks to incorporation, one may no longer avail one's self of the liberty
provisions of my state's constitution.

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.

We had a due process and equal protection clause, too, so federal incorporation
may have limited rights and remedies in state law.

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