What is a constitutional arrest?
the short of it is an arrest that will stand up to legal scrutiny. according to the amendments, the People shall be safe from unreasonable searches and seizures. The laws and cases flowing from that specifies in minute detail what that means, but each state has its own case law and definitions, in addition to the federal laws and cases
What is a constitution? What purpose does it serve?
A constitution is a plan that provides the rules for government. It serves several purposes; first, it sets out the ideals of the people; it establishes the basic structure of the government; it defines the powers and duties of the government; and it provides the supreme law for the nation. Think of a constitution as a set of rules. Baseball has rules. A government has rules.
Powers not given to Feds by the US Constitution are given to states or the people. So, why can't states pass any law they want to regulate guns, free speech, the press, etc.?
Why? Because the almighty Supreme Court decided in 1925, fifty-seven years after it was ratified, that the 14th Amendment had been intended all along to make the Bill of Rights, or parts of it at least, applicable to the states. This is called the Incorporation Doctrine. This despite Chief Justice John Marshall’s opinion in Barron v. Baltimore (1833) that the Bill of Rights simply did not apply to any state governments; and despite an amendment offered in 1875 by Congressman James Blaine that would have made the 1st Amendment applicable to the states. It passed the House but failed in the Senate, clearly indicating that Congress did not feel the BOR should be made applicable to the states.So beginning in 1925 (Gitlow v New York, Free Speech clause) and proceeding onward in fits and starts, the Court has held much, but certainly not all of the Bill of Rights, against the states. In 2012, in McDonald v. City of Chicago the court got around to incorporating the 2nd Amendment into the 14th Amendment.Supporters of the Incorporation Doctrine point to comments by the sponsor of the 14th Amendment, John Bingham, that his goal was to apply the BOR to the states. The problem with this view is that John Bigham did not ratify the amendment; the states did. And as James Madison, who knew a thing or two about how the Constitution should be interpreted, reminds us, it should be the view of those who “accepted and ratified” the Constitution that prevails: “In that sense alone it is the legitimate Constitution.” Did the states ratify the 14th believing that they would one day it would be used to make them accountable for much of the Bill of Rights? No!So now the states cannot pass laws in conflict with those portions of the BOR which have been incorporated.Should the states have to abide by the protections of the BOR? I think so; but the Constitution is not the property of the Supreme Court, it is the property of We the People. If the states are to be held responsible for the protections of the BOR, an amendment so stating, duly ratified in accordance with Article V, is the only proper way to make that the law of the land.
What is the incorporation doctrine?
The incorporation doctrine was a method chosen by the Supreme Court of the United States (SCOTUS) to apply the Bill of Rights (1791), to with Amendments 1-10, to the States through the Fourteenth Amendment. In Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), SCOTUS determined that the BOR only applied to the Federal Government. After the Civil War (1861-65), Congress proposed and the States ratified the 13th Amendment followed by the Fourteenth and Fifteenth Amendments. SCOTUS struck down the Civil Rights Cases, 109 U.S. 3 (1883) which severely hampered federal efforts to reconstruct the South. The Court held that Congress lacked the authority enforce the Fourteenth Amendment against the States. United States v. Cruikshank, 92 U.S. 542 (1876) reaffirmed the application of the BOR to the Federal government and not the States. The first case SCOTUS applied a provision in the BOR was Gitlow v. New York, 268 U.S. 652 (1925), a first amendment free speech decision. From that point forward, SCOTUS case by case began applying other pertinent parts of the BOR to the States. Incorporation was the alternative to others such as "selective" and "total" incorporation. Here is a link that covers the logic and specific cases involving incorporation for your edification. http://en.wikipedia.org/wiki/Incorporati... (I hate using Wikipedia, but sometimes it is simpler to use when explaining these things.) This is much easier than giving you a college level lecture.
Donald Trump recently said "the 14th amendment is unconstitutional." Can a constitutional amendment be unconstitutional being that it is a part of the constitution?
The meaning of Donald Trumps argument is that the illegal alien mother is under the jurisdiction of Mexico; she being a citizen of that country. (or any other country) She was not born and naturalized in the U.S. so therefor she is not a citizen of this country. In this crucial respect, her baby cannot be automatically a citizen of the U.S.. It is preposterous to conclude that the baby is a citizen then just because it was born in the U.S.. The baby is a citizen of Mexico and should be returned with the mother. The 14th describes people who are existing citizens of the U.S..Senator Jacob Howard is one of the writers of the 14th and in 1866 clarified who is and is not a citizen. He said aliens are not citizens nor off spring of diplomats. It has to follow that the Mexican baby is not also. His explanation is written into the congressional record and you can read all about it here:The 14th Amendment to the United States Constitution - Fourteenth Amendment - anchor babies birthright citizenship - interpretations and misinterpretations - US ConstitutionThe 14th has been misinterpreted most likely on purpose. I find it incredible that congress at the time - in the 60’s I believe, did no fact checking on the intent of the amendment and to whom it applies. Am I to understand that the very writers of it are to be disregarded? I wish the amendment was specific about who is and is not a citizen. It’s my opinion that congress need only follow the original intent . It is not necessary to change the 14th. which is far more difficult.