12:24 AM -:- Posted by Allen    

Ask and Receive

Blogger-buddy Gerald Klaas asks Mongo's advice.

But not before commenting on my discussion of the relationships of the courts, Alabama, its citizens and the feds. I would like for him to have spent a little more time looking at my argument regarding US Article IV-4-1. I think he'd not have jumped to the conclusion that we disagree.

After all, we both think the federal courts shouldn't have been responding to a First Amendment petition from within a State; he says they don't have jurisdiction, I said it's moot because the proper action lies under Article IV. And we both say that the Ten Commandments is religious.

True, I went into the Alabama constitution because that is really where Judge Moore goes astray, and Gerald didn't appear to spend much time on that.

But still, I don't think there's all that much disagreement. Maybe....

Anyway, Gerald asks Mongo's help:

Gerald: ... I hope he can help me clarify a dilemma in my own mind. ...how do I justify claiming 1st Amendment violations if a State government were to ban books?

Actually, Gerald wants the response to come upon the premise that he disagrees that the feds can enforce First Amendment restrictions against a state.

Happily, he may not have a dilemma after all. Here's why, if he can get satisfaction with it. Gerald lives in Sacramento, California. The CA state constitution has echoing rights guarantees akin to the federal Bill of Rights. (Well, many of them, anyway.)

CA ARTICLE 1, DECLARATION OF RIGHTS
SEC. 2. (a) Every person may freely speak, write and publish his or
her sentiments on all subjects, being responsible for the abuse of
this right. A law may not restrain or abridge liberty of speech or
press.

The banning of books by a state is presumably done by the Executive or Legislative branch, and where that's the case, one turns to the courts for relief.

CA Article 1 Section 2(a) gives him his cause of action and confers jurisdiction on the courts to hear and act on his complaint or petition.

What if the banniing is done by a court, as through an injunction preventing the sale or distribution of a book. The relief is through appeal by the author(s), distributor(s) and readers whose lives can be shown to be diminished should the book remain unavailable.

Yet, what if the banning is upheld all the way through the state Supreme Court?

Does he have to give up there?

No.

Consider this little gem:

CA ARTICLE 3 STATE OF CALIFORNIA
SEC. 1. The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.

This little beauty incorporates the United States constitution into the California constitution.

So if Gerald can't get satisfaction from the California Supreme Court, e.g., the CA Supreme Court refuses to enforce the CA constitution at Article 1 Sec. 2(a), then Gerald can appeal to the federal court under CA Article 3 Section 1, point of contention being US Article I of the Amendments.

Thus Gerald's dilemma is not the one he thought, but rather whther he is willing to change his mind, because he is wrong, at least in California, in his position that the feds can't enforce First Amendment restrictions against a state.

At the state's own invitation, the feds can enforce any measure of the US constitution against the State of California and any of its officers and subdivisions.

What about other states?

Nevada:

[PRELIMINARY ACTION.]

Whereas,

The Act of Congress Approved March Twenty First A.D. Eighteen Hundred and Sixty Four "To enable the People of the Territory of Nevada to form a Constitution and State Government and for the admission of such State into the Union on an equal footing with the Original States," requires that the Members of the Convention for framing said Constitution shall, after Organization, on behalf of the people of said Territory, adopt the Constitution of the United States.—Therefore, Be it Resolved,

That the Members of this Convention, elected by the Authority of the aforesaid enabling Act of Congress, Assembled in Carson City the Capital of said Territory of Nevada, and immediately subsequent to its Organization, do adopt, on behalf of the people of said Territory the Constitution of the United States[.]

ARTICLE 1
Sec: 2. Purpose of government; paramount allegiance to United States.
All political power is inherent in the people[.] Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States;...

Montana:

ARTICLE I

COMPACT WITH THE UNITED STATES

All provisions of the enabling act of Congress (approved February 22, 1889, 25 Stat. 676), as amended and of Ordinance No. 1, appended to the Constitution of the state of Montana and approved February 22, 1889, including the agreement and declaration that all lands owned or held by any Indian or Indian tribes shall remain under the absolute jurisdiction and control of the congress of the United States, continue in full force and effect until revoked by the consent of the United States and the people of Montana.

Arizona:

ENABLING ACT
Act June 20, 1910, c. 310, 36 U.S. Stat. 557, 568-579
Sec. 20
That the delegates... shall declare on behalf of the people of said proposed State that they adopt the Constitution of the United States,...

More?!

It's all out there. Almost every state has such a subordination clause, either in its Enabling Act, its Ordinance No. 1, or within the actual body of its constitution.

You just have to be willing to look for it.

But you don't need to cite it to invoke federal court jurisdiction. You can simply rely on the US Constitution's own "grandfather clause", which operates so universally that it doesn't need to be cited, it's operation is automatic and understood:

US Article VI Clause 2
This Constitution ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,...

So... Dilemma resolved? Sorry.