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Write 4 page essay on the topic The Historical Extension of the Federal Government’s Power Over the States.

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It attained this by prohibiting the states from infringing upon the rights and protection of the American populace. It also prevents the state from arbitral denial of the right to life and property without the due course of the decrees, and affords every individual within the jurisdiction of the state equal protection of the law. Over the years, the Supreme Court and the federal courts have adopted different interpretations of the fourteenth amendment. It is this reinterpretation, of the amendment, that has gradually changed the law of on the fourteenth amendment. This reinterpretation was reflected in various case laws that have been decided over the years. Barron v. Baltimore, 32 U.S. 243 (1833) This was the first judicial interpretation on whether the Bill of rights could limit sate powers. In this case, Baron had argued that the Constitution limited powers of both the state and federal governments, and proceeded to give the limitations on state power specified under Article 1 Section 5 (Phelan, 2008). Marshal J, in a dissenting opinion, held that the Bill of Rights in any way did not limit state power, and if it was intended to limit sate power, it could have expressly stated so (Phelan, 2008). In his judgment, Marshal J applied the law as it was as opposed to what it ought to have been. He directly and strictly interpreted the fourteenth amendment to hold that it did not apply in limiting state power, but rather acted only to limit the power of the federal government. In informing his decision, Marshal J noted that the provisions that were sought to be relied upon were in the passive voice, as opposed to direct language, and the provisions under Article 1 could not be applied to limit state power. The use of passive voice, could not answer the question ‘by whom’ and it was thus incapable of determining whether the provisions of Article 1 were binding upon the states as well (Rosenkranz, 2011, 1010). Article 1, on which Barrron sought to rely on, was framed in general terms, read passive voice, and could thus not be directly linked to limiting the state power because it could not answer the question. limited by whom? Had such provision been intended to limit state power, it could have taken a more direct tone. This, for example, could have been evidenced by the use of direct terminology such as ‘the state shall….’ or ‘No state shall….’ Although convectional wisdom may have dictated the fact that the use of the passive voice is ambiguous, Marshal J was undeterred in his stance as he applied the constitutional interpretation rule that the constitution ought to be read as a whole (Rosenkranz, 2011, 1012). In light of this therefore, if Article 1 section 9 were meant to limit state powers, then it would not have been framed in general terms. It should thus have been framed in a manner that answered the ‘by whom’ question. The logic applied in Barron is that when the Constitution seeks to limit power in passive voice, it is then limiting the authority of the government that it established. This logic is not necessarily correct because there is the horizontal dimension to separation of state power (Rosenkranz, 2011, 1015). If an interpretation were sought using this concept, then the court would have found that the Bill of rights could also limit state power horizontally. In other words, the strict application of the canon of grammatical consistency need not be construed so rigidly as to rule out flexibility in interpretation (Rosenkranz, 2011, 1016). Weeks v. U.S., 232 U.S.

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