Posted by KatNip on October 04, 1998 at 02:49:41:
“States prohibited from infringing rights—the most valuable amendment
The twelfth provision of the committee’s report was considered:
Article 1, Section 10, between the first and second paragraph, insert, ‘No State shall infringe the equal rights of conscience, nor the freedom of speech, or the press, nor the right of trial by jury in criminal cases.’
Thomas Tucker of South Carolina moved to strike the provision, arguing that it would be much better to leave such matter to the states. Madison opposed Tucker’s motion.
Mr. Madison conceived this to be the most valuable amendment in the whole list. If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments. He thought that if they provided against the one, it was necessary to provide against the other, and was satisfied that it would be equally grateful to the people.
Samuel Livermore, wishing to make the proposition affirmative, moved that the words be transposed to read: ‘The equal rights of conscience, the freedom of speech or of the press, and the right of trail by jury in criminal cases, shall not be infringed by an State.” The transposition was agreed to, Tucker’s motion was rejected, and the provision as amended adopted.”
Limiting State Action
The deletion of the fourteenth article proposed by the House was the most significant action taken by the Senate. That article read:
No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
The limitation on action by the states that this article contained was far-reaching. Unfortunately, it was certain to incur the opposition of anti-federalist and advocates of state’s rights. Thus Madison’s ‘most valuable’ amendment would have to wait for another time, another congress, and a devastating Civil War before it could be incorporated into section 1 of the Fourteenth Amendment.” Richard T. Burress, The Bill of Rights: James Madison’s Legacy (Standford University, 1989), pp. 48-49, 59-60.
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“Civil Rights Acts——how, construed. The Civil Rights Act is in derogation of the common law and therefore should be strictly construed.” Grace v. Moseley, 112 Ill. App. 100 (1904).
Whenever a statute contained a legislative innovation departing from the Common Law, the courts not only refused to reason from it by analogy, but they interpreted the terms of the statute in the most narrow and restrictive fashion. Their attitude in this respect was similar to that of the English courts as described by Sir Frederick Pollock in 1882, an attitude which, according to Pollock, “cannot well be accounted for except upon the theory that Parliament generally changes the laws for the worse, and that the business of the judges is to keep the mischief of its interference within the narrowest possible bounds.” (Essays in Jurisprudence and Ethics, p. 85, London, 1881.)
Today, statute law is on the whole received with less hostility by the courts of the United States and of the several states than was the case in the last century. Remedial statutes conferring rights unknown at the Common Law (such as minimum wage, social security, or workmen’s compensation statutes) are often accorded a liberal and broadminded treatment by the courts, and particularly by the United States Supreme Court. See J. B. Fordham and J.R. Leach, “Interpretation of Statutes in Derogation of the Common Law,” 3 Vand. L. Rev. 438 (1950). Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law (Harvard University Press, 1967), pp. 360, 361.
42 USCS Sec. 1983. Generally. Section 1983 merely authorizes remedy for federal law violations, and does not confer substantive right. International Brotherhood of Electrical Workers, Local 1357 v. Hawaiian Tel. Co., 713 P.2d 943 (1986).
Section 1983 [42 U.S.C.A.] does not create any substantive rights but is merely “a method for vindicating federal rights elsewhere conferred.” Grahman v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694-95 n. 3, 61 L.Ed.2d 433 (1979). City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994).
affirmative and declaratory. ‘[T]he term “subject to the jurisdiction thereof” . . . must be construed in the sense in which the term is used in international law as accepted in the United States as well as Europe. [* * *] The provision of the 14th Amendment alluded to [“subject to the jurisdiction thereof”] . . . is affirmative and declaratory, intented to allay doubts and to settle controversies which had arisen with respect to citizenship.’ Francis Wharton, A Treatise on the Conflict of Laws or Private International Law, 3rd ed. (Lawyer’s Co-operative Publishing Co., 1905), vol. 1, pp. 45-47.