-=> Quoting Dennis Martin to Jim Casto <=-
 DM> Jim, consider this:  
 DM> If the Constitution didn't specifically deny the right, does it not
 DM> then  imply the legality of the right?  
 
 Again, you are describing the law of omission. And I don't think the Supreme
 Court in most cases _today_ will "buy" that argument. Although through the
 years some of the Justices have "bought into" some pretty bizarre arguments.
 There have been a _lot_ of SC Justices over the years. Some good, some bad. 
 DM> In this country, the laws are layered, with the closest, smallest
 DM> governing  body being restricted by the larger one.  
 
 Or, in the case of the Constitution, _not_ restricting. With few exceptions,
 the Constitution, at the Federal level, does _not_ restrict the laws made by
 by the states. As we are frequently reminded in class, the Supreme Court
 does not make laws. Legislatures make laws. However, the Supreme Court has
 been accused of (and no doubt guilty of) "judicial activism".   
 DM> As you pointed out, there is no law forbidding murder in the United
 DM> States, at a federal level, but that is because all 50 states and most
 DM> municipalitites  have such prohibitions.
 That's what I said about slavery, too. When the Constitution was being 
written
 slavery was legal in _some_ colonies/states, but not _all_.
 
 DM> However, federal courts still
 DM> make rulings dealing  with murder cases, if they conflict with federal
 DM> law. 
 
 Then it's a matter of what _part_ of the case the federal court is ruling 
 upon. A legal technicality? An unusual punishment? Failure of the Right of
 Due Process? In most cases I have read so far, the Supreme Court seldom 
eals
 with the right of the state to have even a stupid law (one justice described
 CT's condom, law as "uncommonly silly"). The Court might express such an
 opinion but it is up to the state to change the "uncommonly silly" laws. By
 the time of the Civil War it became obvious that some states were NOT going
 to pass their own anti-slavery laws.
 The Supreme Court does not (as far as I know) judge the guilt or innocence
 of someone convicted of a crime. The Supreme Court rules as to whether the
 law was "Constitutional" because of some interpretation of some _part_
 (Articles, Amendments, etc.) of the Constitution. Affirmations and Dissents
 are filled with arguments about the First, Fifth, Ninth, etc. amendments.
 The case I am working on now (Gideon v. Wainwright 1963) is a 6th & 14th
 Amendment (Due Process of Law) case because the man was not provided legal
 counsel in a felony case. The decision in this case overturned the decision
 in Betts v. Brady 1942. It's interesting to compare the opinions of two
 very similar cases and see how the Justices could come to such completely
 different opinions. And it was a unanimous decision in 1963 and a split
 decision in 1942.  
 DM> Here in California, there is a statewide anti-smoking law restricting
 DM> the  practice in all public indoor gathering places.  On military
 DM> reservations,  (military bases and Native American reservations) this
 DM> law is not enforceble  because federal properties are not subject to
 DM> state laws. 
 
 Makes sense to me. And vice versa... If you murder someone on federal
 property, such as a military base, are you charged with a federal crime
 or a state crime? How about on an Indian reservation?
 DM> In short, as citizens, we are subject to a myriad of laws, most of
 DM> which we  don't even know exist.  And we can be found guilty of
 DM> violating these laws,  regardless of lack of prior knowledge.
 
 This is true. We can also be "cleared" of convictions by means that we
 don't know exist through appeals clear to the Supreme Court. In the
 Gideon v. Wainwright case I mentioned above, whilst the Supreme Court
 overturned Gideon's conviction because his Constitutional rights to
 counsel were violated (not judging on his innocence or guilt) the state
 gave the man a new trial and he was judged not guilty. Was he? Did he 
 really commit the crime? I have no idea.
 
 DM> Granted, each state in pre-civil waar days had the choice of being
 DM> pro-slave  or free of slavery.  The 14th Amendment restricted that
 DM> freedom.  The  implication then is that it was legal Federally, until
 DM> the ratification of the 14th Amendment.
 
 You can accept that implication if you wish. I don't. (And the 13th is the
 Amendment that abolished slavery. The 14th, ratified three years later,
 deals with citizenship. So while slavery was abolished in 1865, blacks
 still were not citizens until 1868. And it still took awhile for everyone to
 be allowed to vote.)
 Oh, and come to think of it... What, in your opinion, is (or was) the
 Constitutionality of secession? What was in the Constitution that made
 secession of states from the union legal or illegal? By using your argument
 ("implication of legality by omission") the Southern states had a legal 
ight
 to secede? And on the same issue, what is there in the Constitution that
 makes secession illegal now? (I understand Texas would like to secede or
 some such thing.) 
 Jim
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