JC>  DM> If the Constitution didn't specifically deny the right, does it not
JC>  DM> then  imply the legality of the right?  
JC>  
JC>  Again, you are describing the law of omission. And I don't think the 
Supre
JC>  Court in most cases _today_ will "buy" that argument. Although through 
the
JC>  years some of the Justices have "bought into" some pretty bizarre 
argument
JC>  There have been a _lot_ of SC Justices over the years. Some good, some 
bad
 
By your reasoning then Jim, is it legal or illegal to drive a motor 
hicle???
In this case, I don't think the law of ommission is valid.  Rights and 
responsibilities are accepted, until legislated against.  This implies 
legality.  Otherwise, to do something as simple as walking down the street 
could be considered illegal.  
JC>  DM> In this country, the laws are layered, with the closest, smallest
JC>  DM> governing  body being restricted by the larger one.  
JC>  
JC>  Or, in the case of the Constitution, _not_ restricting. With few 
exception
JC>  the Constitution, at the Federal level, does _not_ restrict the laws 
made 
JC>  by the states. As we are frequently reminded in class, the Supreme Court
JC>  does not make laws. Legislatures make laws. However, the Supreme Court 
has
JC>  been accused of (and no doubt guilty of) "judicial activism".   
True with regard to the Court's "judicial activism".  However, if a state 
makes a more restrictive law than the Federal Law covering the same crime, 
(piracy for example), then the state law takes effect.  
Don't be misled into thinking that the Constitution is the end all of law.  
t
is primarily a working model of how the government operate, and where it must 
limit it's authority.  In short, it's more of an operating manual than a law. 
The U.S. Codes are the real laws governing the citizens as the Legislature 
nd
the President see fit.  The Supreme Court's role is only to rule on the 
legality of the laws as they are written and adjudicated.  In the absence of 
Constitutional guidelines, (as in the case of Roe v. Wade (1972))  the 
Justices have to interpret the intent of the Constitution.  
JC>  The case I am working on now (Gideon v. Wainwright 1963) is a 6th & 14th
JC>  Amendment (Due Process of Law) case because the man was not provided 
legal
JC>  counsel in a felony case. The decision in this case overturned the 
decisio
JC>  in Betts v. Brady 1942. It's interesting to compare the opinions of two
JC>  very similar cases and see how the Justices could come to such 
ompletely
JC>  different opinions. And it was a unanimous decision in 1963 and a split
JC>  decision in 1942.  
The make up of the court is ever changing according to the Administrations 
nd
Congressional beliefs at the time of each Justice's appointment.  
With regard to the 1942 case, (Betts v. Brady, 1942) remember the 
Administration and Congress were both on the liberal side, and dealing with a 
destroyed economy.  There wasn't much money for lawyers either in the general 
population, or in the government which was currently funding a war on very 
little money.  
By the time the Gideon trial went to court, the country's economy was 
ooming,
and (post war affluence, along with techonlogy advances putting plety of 
oney
into peopls pockets).  The country was also shortly over an 8 year reign of 
conservative Legislatures and a Conservative Administration who could appoint 
conservative judges.  Remember, conservatives, liberal, and moderates all 
ook
at things with differing points of view.
JC>  DM> Here in California, there is a statewide anti-smoking law 
estricting
JC>  DM> the  practice in all public indoor gathering places.  On military
JC>  DM> reservations,  (military bases and Native American reservations) 
his
JC>  DM> law is not enforceble  because federal properties are not subject to
JC>  DM> state laws. 
JC>  
JC>  Makes sense to me. And vice versa... If you murder someone on federal
JC>  property, such as a military base, are you charged with a federal crime
JC>  or a state crime? How about on an Indian reservation?
  
In this case, it would be a state crime, as there is no federal statute 
against murder.  (The closest they have is "denying the victim their civil 
rights.  Read up on the Civil Rights Movement of the 1950's and 60's.)  
Federal reservations are subject to state laws in the absence of federal law, 
because the victims are generally citizens of a state jurisdiction.  That's 
how I view the law anyway, if I'm remembering correctly from my Criminal Laws 
classes in the early 70's.  
Also, two of the cases of interest in that class was Gideon v. Wainwright and 
the Miranda case.  
JC>  This is true. We can also be "cleared" of convictions by means that we
JC>  don't know exist through appeals clear to the Supreme Court. In the
JC>  Gideon v. Wainwright case I mentioned above, whilst the Supreme Court
JC>  overturned Gideon's conviction because his Constitutional rights to
JC>  counsel were violated (not judging on his innocence or guilt) the state
JC>  gave the man a new trial and he was judged not guilty. Was he? Did he 
JC>  really commit the crime? I have no idea.
With what I've seen and heard over the years on this case, who knows if he's 
gulity or not.  The big problem if I remember correctly was:  "did he know 
whether what he did was right or wrong?"  As I understand it, he was a 
deaf-mute, who could not testify in his own behalf, and had no idea of what 
the proceedings were about.  I don't think he knew sign language either, so 
providing an interpreter would have been a waste of time.  He needed legal 
counsel to protect his rights, because he may not have even understood what 
was happening.  
JC>  DM> Granted, each state in pre-civil waar days had the choice of being
JC>  DM> pro-slave  or free of slavery.  The 14th Amendment restricted that
JC>  DM> freedom.  The  implication then is that it was legal Federally, 
ntil
JC>  DM> the ratification of the 14th Amendment.
JC>  
JC>  You can accept that implication if you wish. I don't. (And the 13th is 
the
JC>  Amendment that abolished slavery. The 14th, ratified three years later,
JC>  deals with citizenship. So while slavery was abolished in 1865, blacks
JC>  still were not citizens until 1868. And it still took awhile for 
everyone 
JC>  be allowed to vote.)
Thank you for correcting me on which amendment cleared the slavery issue.  
'm
not a Constitutional scholor.  
Don't forget that Native Americans on reservations did not have the right to 
vote until 1907, when they got their official citizenship, (bringing the 
Oklahoma population up to the approved level for statehood). 
JC>  Oh, and come to think of it... What, in your opinion, is (or was) the
JC>  Constitutionality of secession? What was in the Constitution that made
JC>  secession of states from the union legal or illegal? By using your 
argumen
JC>  ("implication of legality by omission") the Southern states had a legal 
ri
JC>  to secede? And on the same issue, what is there in the Constitution that
JC>  makes secession illegal now? (I understand Texas would like to secede or
JC>  some such thing.) 
As I see it, the states did have the right to succeed.  They also had to 
reapply for admission to the Union following the civil war.  Their acceptance 
had been guaranteed by a treaty I believe.  If I recall my History classes 
correctly, the state legislature had to petition the federal government for 
readmission.  Why do you think the carpet-baggers were so eager to get into 
office?   
If you're talking about the "Texas Republic" fiasco, they are a radical band, 
much like the Arizona Militia, and other such "anti-government" groups around 
the nation.  They have no official state recognition, and even less public 
support.  If the population of the State of Texas wished to have a vote on 
that issue, they have the right to gain signatures on an Iniative petition 
nd
the legislature would with enough qualified signatures on the document, have 
to put the iniative up to a public vote.  (The iniative proccedure requires I 
believe a 10% of the registered voters.)
Dennis Martin
--- GEcho 1.00
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