Amending the Constitution to make the double jeopardy prohibition actually meaningful

johnwk2 · 2022-06-25T13:32:59.458Z

Ben_Natuf:

we are talking about the constitution and what it says.

The OP was talking about Amendment V, and that is one of the first ten amendments specifically adopted to prevent misconstruction or abuse of the newly created federal government and is not enforceable upon the various state governments.

Ben_Natuf · 2022-06-25T13:39:16.823Z

your assertion that those not identified as only applying to the federal government do not apply to government at all levels is ■■■■■■■■■ they do apply, and it was made clear in the 9th that powers prohibited to the states (like trying someone twice for the same crime) are prohibited. you want to read into 9 of the ten amendments what only one states “the congress shall make no law…”. if they were meant to only apply to the federal government, they said so, if not, they did not.

johnwk2 · 2022-06-25T13:44:31.510Z

Ben_Natuf:

your assertion

My assertion? Don’t ascribe the documented purpose of the first ten amendments as my “assertion” when it is the stated purpose found in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added”.

Ben_Natuf · 2022-06-25T14:00:18.932Z

and nowhere in there do they state that those restrictions only apply to the federal government, the only place you see that, and one of them does, is the first. And the amendemts themselves make it clear this is the case. There was no federal militia, only state militia’s. no state may infringe on the right to keep and bear arms… for their own good. how and for what reason would an amendment enacted affecting a states militia if it didn’t apply to the states? why even mention a state if it didn’t apply to them?

There were no capitol federal offences, because at adoption, their were no federal laws (it is not possible for a law under the constitution to have pre-existed its ratification) only state laws. what law would anyone be tried twice for except a state law? does “in ALL criminal prosecutions…” have meaning? it says “ALL”, meaning all. not just some. once part of the constitution, unless specified as in the first, constitutional restrictions on governments ability to infringe on a persons rights apply to all levels of government, or they are not rights at all. “nor prohibited to them”, has meaning

johnwk2 · 2022-06-25T14:08:08.919Z

If you want to make the first ten amendments, or any one of them, enforceable upon the states by the federal government and undermine federalism by allowing the federal government to meddle in the various state’s internal affairs, then do it in the manner allowed under Article V instead of attempting to make the constitution mean what you want it to mean.

Ben_Natuf · 2022-06-25T14:14:29.414Z

if you want “all” to not mean “all” try another language.

you are quite simply, wrong.

johnwk2 · 2022-06-25T14:33:24.702Z

Thank you for your opinion but the Founders were explicitly clear concerning the purpose for adopting the first ten amendments, and the amendments were specifically adopted to prevent misconstruction or abuse of the newly created federal government as documented in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789

And keep in mind:

"A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law." See Hawaii v. Mankichi, 190 U.S. 197 (1903),

So, if you want to make the first ten amendments, or any one of them, enforceable upon the states by the federal government and undermine federalism by allowing the federal government to enter the states and meddle in their internal affairs, then do it in the manner allowed under Article V instead of attempting to make the constitution mean what you want it to mean.

JWK

Those who reject abiding by the text of our Constitution, and the intentions and beliefs under which it was agree to, as documented from historical records ___ its framing and ratification debates which give context to its text ___ wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.

WuWei · 2022-06-25T15:21:05.556Z

johnwk2:

If you want to make the first ten amendments, or any one of them, enforceable upon the states by the federal government and undermine federalism by allowing the federal government to meddle in the various state’s internal affairs, then do it in the manner allowed under Article V instead of attempting to make the constitution mean what you want it to mean.

Done. 14th.

johnwk2 · 2022-06-25T15:30:06.475Z

Your opinion which is unsubstantiated by its text and/or its legislative intent.

Ben_Natuf · 2022-06-25T16:32:08.856Z

no, they weren’t at all clear how they would apply and to whom. you think you know, because you choose to believe what you wish to believe.

all means all. it does not say “federal prosecutions” it says “all prosecutions”. the idea that double jeopardy does not attach to the states is just plain ignorant since the only prosecutions at the time of ratification were state prosecutions. why would they create an amendment to restrict a power they didn’t even think the federal government had?

where in the constitution is the federal government empowered to criminalize behaviors the states already had the power to criminalize? these are the police powers, and they are reserved to the states. what possible capitol offences did they envision other than the ones they exempted under was powers? was the federal government going to make murder a crime federally? robbery? were they going to make violating the commerce clause a capitol offense?

federalism does not mean the states can ignore constitutional prohibitions.

johnwk2 · 2022-06-25T22:19:49.282Z

Ben_Natuf:

no, they weren’t at all clear

Ben,

The intentions expressed in the Resolution of the First Congress Submitting Twelve Amendments to the Constitution; March 4, 1789 seem explicitly clear why such “declaratory and restrictive clauses” were being proposed, which was to “prevent misconstruction or abuse” of the newly created government’s powers.

But hey, you are free to continue to post your unsubstantiated opinions as to why such amendments were proposed, even when the evidence contradicts your assertions and wild interpretations. Of course, that is the fault of “textualists” ___ they refuse to take into consideration the documented intentions of the lawmaker, which gives context to the legislation’s text, and do so to remain free to attach their own meaning to the text.

JWK

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.” See Hawaii v. Mankichi, 190 U.S. 197 (1903),

DougBH · 2022-06-26T00:13:03.797Z

I agree that the separate sovereigns exceptions makes a joke about double jeopardy. Probably there were more arguments to be made for it when some states were seen as denying justice where race issues were involved.
I do not agree with letting a victory in a criminal case ending or preventing a civil case. There are different standards of proof involved fro criminal and civil,cases. A court could find that there was not proof beyond a reasonable doubt that a person was guilty and therefore not punish him by taking away his freedom. However, the same court could determine that he probably harmed the victim (preponderance of the evidence) and should pay to make the victim or their family whole.
There is a difference between the state taking someone’s freedom and determining who was probably at fault for compensating the harmed person.

SpacemanSpiff · 2022-06-26T00:19:33.011Z

johnwk2:

So now you want to place the judicial systems of every state under the authority of the United States.

No thank you!

While on this rare occasion I actually agree with you, don’t forget your thread arguing the US constitution doesn’t apply to the states. Without it a state could prosecute a case over and over until they get the result they want.

WuWei · 2022-06-26T00:44:20.349Z

I like your proposal. I would put a time limit on the decision to prosecute.

Safiel · 2022-06-26T00:52:24.522Z

In a general way, it might be possible to do this by legislation and without a Constitutional amendment.

The impediment to State judicial systems would be minimal in any case. The Federal Government already takes cases out of State courts by way of diversity jurisdiction. Pulling a handful of criminal cases from State to Federal court would not be overly abusive.

johnwk2 · 2022-06-26T01:05:10.046Z

You forgot to mention the particular state you have in mind.

SpacemanSpiff · 2022-06-26T11:21:57.504Z

johnwk2:

You forgot to mention the particular state you have in mind.

Sorry about that: any of them.

Ben_Natuf · 2022-06-26T14:57:22.731Z

what they seem like to you is what you want them to seem like. you are doing the same thing here, that leftists have been trying with the 2nd amendment for years… does it only apply in the event a state has an organized militia? whats the difference in affect between the opening statement in the resolution introducing the bill of rights for ratification, and the clause introducing the peoples right to bear arms? if states can infringe on it is it actually a right?

where in the resolution does it say anywhere that constitutional powers restricted to government in relation to peoples rights are only restricted to the federal government? i’ll give you a hint, it says it in one of them… and only one of them.

otherwise, i’ll save you some space here, it doesn’t. and when you read the amendments, it becomes even clearer, that it was never meant to.

johnwk2 · 2022-06-26T16:56:27.939Z

SpacemanSpiff:

johnwk2:

You forgot to mention the particular state you have in mind.

Sorry about that: any of them.

Each state has its own constitution. So, which state or states, by the terms of their constitution ". . . could prosecute a case over and over until they get the result they want, which is what you are saying?

DougBH · 2022-06-26T17:44:39.306Z

The natural assumption of the left is that states will seek the fewest rights possible for their own people. Only the federal government loves you.

Art 1 - Sec 14 :: Texas Constitution :: Texas Law :: US Law :: Justia.