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View Diary: Impeachment and the Original Intent of our Founders (108 comments)

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  •  Roe v. Wade is the perfect example... (0+ / 0-)

    of both sides reaching back to Original Intent to seek guidance on the issue.

    Wes Clark -- The President we were promised as kids.

    by Jimdotz on Sun Jun 17, 2007 at 06:14:54 AM PDT

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    •  Please... Roe did not bother (1+ / 0-)
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      Jimdotz

      to do anything of the sort.

      One of the leading liberar scholars aptly said:

      is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be."

      At no point did Harry Blakmun even attempted to show that Roe is somehow based on the original understanding of the 14th Amendment.

      •  It was the Ninth amendment applied (1+ / 0-)
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        Jimdotz

        through the 14th, and it seems to be a fairly (except for the subject matter, which seems to matter to most people more than Constitutional Law) mundane application of the Constitution to the rights of individuals.

        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

        by StrayCat on Sun Jun 17, 2007 at 09:47:55 AM PDT

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        •  A swing and a miss (1+ / 0-)
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          Jimdotz

          Ninth Amendment was never relied on in Roe.

          •  The Ninth Amend. (1+ / 0-)
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            Jimdotz

            Has never been applied by the majority of the Supreme Court ever.

          •  The ninth Amendment underlie Roe (1+ / 0-)
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            Jimdotz

            as it was based on Griswold.  Though a majority has never based a decision on the 9th, the plurality, and the opinion of the Court did in Griswold.  It is the law of the land.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Sun Jun 17, 2007 at 10:19:22 AM PDT

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            •  It did not (1+ / 0-)
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              Jimdotz

              That is simply not true.  In fact in Roe, the Court specifically said that the right to abortion is not based on the Ninth Amendment.  

              In any event, the Ninth Amendment is not, nor was ever meant to be, a secret repository of rights into which jusges can reach whenever they feel like adding to the Constitution.  At best, the Ninth only protects those rights that were "retained" (i.e., already in people's possession) at the time of the adoption of the Constitution.

              •  You are right, it is not a secret repository of (1+ / 0-)
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                Jimdotz

                rights, but a guarantee of the well known rights, before the positivist legal theorists raised their ugly heads, the right to privacy, belief, freedon of action that does not breach the peace.  Today, there are so many crimial statutes prohibiting conduct that does not breach the peace, that the 9th amendment is violated regularly.  Breach of the peace, by Assault, larceny, and other thefts, arson, mayhem, fraud and threats of force was the key to properly drafted criminal law.  With the criminalization of regulatory matters, such as traffic rules, the notion that the criminal law could be used more broadly crept in.  Abetted by the Crimes against the soveriegn class of offenses, the idea that anything could be Connstitutionally criminalized became accepted.  I submit that the 9th Amendment prohiibits much of this and that the 10th amendment probits the federal government from enacting general criminal laws outside of federal property and the regulation of the military services.  Congress, for example has no power, properly, to make late term abortion a crime, as that is reserved to the people, through their legislatures, as limited by the Bill of Rights.

                Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                by StrayCat on Sun Jun 17, 2007 at 10:53:33 AM PDT

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                •  Under that theory (1+ / 0-)
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                  Jimdotz

                  even if we decided to explicitly repeal the First Amendment, such repeal would be of no force or effect, since the Ninth would still be there.  That of course is patently absurd.

                  Second, this has nothing to do with positivist law.  You do not need to be granted a right to do anything that is not explicitly prohibited.  You can do it all.  But that does not mean that the government is restricted from acting in certain spheres where the restriction was never agreed to.

                  Nowehere in the Constitution does it suggest that only matters that can be criminalized are those that "breach the peace" (again, in whose estimation).

                  Furthermore, do you deny Congress' power to regulate interstate commerce?  And if you think that Congress cannot regulate late term abortion, what do you think of Congress regulating for instance allocation of money to girls' sports in college (Title IX) or minimum wage?

                  •  There is a difference between criminal law and (1+ / 0-)
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                    Jimdotz

                    these other subjects.  In one sense, I am a purist, in that I believe that the Court should have merely declared that all laws in violation of the 14th Amendment are illegal and void, and therefore unenforceable.  See, Shelley v. Kramer.  This would avoid many of the problems you refer to without lesseing the intended protective effects of the 13th and 14th amendments.  However, regulation does not automatically mean criminal sanctions, nor does the regulation of interstate commerce have anything to do with the 9th amendment.
                        Finallly, if a Constitutional amendment were to repeal the First amendment, then the 9th amendment would have no effect in saving the First, as the specific provision in law, Constitutional and otherwise, takes effect over the general.  And more finally, the terms like "ridiculous and "silly" are not a proper part of this discussion, unless you are a law professor practicing preemptive socratic rhetoric.

                    Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                    by StrayCat on Sun Jun 17, 2007 at 11:27:48 AM PDT

                    [ Parent ]

                    •  Of course all laws in violation of the (1+ / 0-)
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                      Jimdotz

                      14th (or any other) amendment are unenforceable.  That is not even fairly debatable.  the question is what does the 14th Amendment protect.  You have this rather fanciful notion that the 14th Amendment prevents appliction criminal sanctions to conduct that does not constitute "breach of peace."  (Without bothering to explain who gets to make the "breach of peace" determination).  

                      If regulation of interstate commerce has nothing to do with the 9th Amendment, I fail to see what your beef is with Partial Birth Abortion Ban Act on those grounds.  The Act only banned the procedure in cases where it involves interstate commerce.

                      Finally, repeal of the First would not necessarily be more "specific."  If the repeal is phrased simply as "First Amendment is hereby repealed," it does not mean that everything that was previously protected is now banned.  It just means that it is not specially protected.  But under your theory, those rights can re-appear through the Ninth.  

                      •  No, not the 14th Amendment, but the (1+ / 0-)
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                        Jimdotz

                        Fourth amendment along with other provisions of the Bill of Rights.  There are Constitutional limitations to what can be rendered criminal.  This is basic Con Law.  The issue is, and always has been, what are the limits and what describes or defines those limits.

                        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                        by StrayCat on Sun Jun 17, 2007 at 12:43:47 PM PDT

                        [ Parent ]

                      •  No, not by my theory can a repeal of (1+ / 0-)
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                        Jimdotz

                        the first Amendment be rendered null by the application of the Ninth amendment.  That's your statement.  A Constitutional Amendment repealing the Fisrst Amendment, should such s horrible thing ever occur, would, under ordinary rules of construction, end the First Amendment.

                        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                        by StrayCat on Sun Jun 17, 2007 at 12:46:33 PM PDT

                        [ Parent ]

              •  Without the 9th amendment, there is no right to (1+ / 0-)
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                Jimdotz

                any conduct except those set out in the Bill of Rights or the main body of the Constitution.  This flies in the face of all thoughtful writings by those who crafted and adopted the Constitution, as well as the whole theory of the rights of the individual being primary, and existing before the state.

                Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                by StrayCat on Sun Jun 17, 2007 at 10:58:23 AM PDT

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                •  Nonsense (1+ / 0-)
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                  Jimdotz

                  Our laws and our legal tradition have always honored the notion that everything not explicitly prohibited is permitted.  Ninth Amendment is wholly unnecessary to reestablish that point.  

                  What you want to turn the Ninth Amendment into, is a prohibition on certain actions by the government (state and federal) without any support in the text or history of the Amendment.

                  •  No, because the text and history of the Amendment (1+ / 0-)
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                    Jimdotz

                    are clear, and only a mystery to those who believe that government is primary and that individual human beings are subjects of the government, as in Europe of the 18th c. What is unclear about Rights not enumerated being preserved to the people?  Also, if everything not explictly prohibited is permitted, then who does the prohibiting, and by what standard, and who decides the basis for permitting.  Something permitted is not a right, but a licence or privelege.  The Constitution speaks of rights.

                    Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                    by StrayCat on Sun Jun 17, 2007 at 11:18:49 AM PDT

                    [ Parent ]

                    •  The prohibiting is done by the (1+ / 0-)
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                      Jimdotz

                      people via referenda or through the elected representatives.  And then if people do not like it, they can elect different representatives to repeal the offending statute.

                      The Constitution most certainly speaks of rights.  But it does not speak of general rights based on your notion of libertarianism.  It protects certain rights and does not protect others.

                      •  Do you claim that the (1+ / 0-)
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                        Jimdotz

                        Ninth amendment refers to a null set when it speaks of unenumerated rights?  Did the Founders write in an absurdity?

                        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                        by StrayCat on Sun Jun 17, 2007 at 12:48:50 PM PDT

                        [ Parent ]

                        •  No. The Ninth Amendment refers (1+ / 0-)
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                          Jimdotz

                          to the rights people enjoy under their own state laws and Constitution.  It simply means that if the federal rights are mor narrow than state rights, the indvidual cannot be deprived of these additional rights simply because the federal Constitution does not guarantee them.

                          •  Wherein history or text do you derive this (1+ / 0-)
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                            Jimdotz

                            reading of the 9th.  Where in Locke, Rousseau, Jefferson or Paine does this conclusion come?

                            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                            by StrayCat on Sun Jun 17, 2007 at 06:46:12 PM PDT

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                          •  Luckily, the ideas of (1+ / 0-)
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                            Jimdotz

                            neither Locke not Rousseau, nor Paine were enacted as part of the Constution.  just like the Constitution did not enact "Mr. Herbert Spencer's Social Statics."

                            Our Constitution is simply not a charter of libertarianism.  And if it were, I would like to hear an explanation as to why is Roe right, while Lochner is wrong.

                          •  You are asking that decisions be (0+ / 0-)

                            consistent over time.  they should be, but, alas, the Court like all else is a human enterprize.  Just as you and I differ, so do the Justices.  BTW, Herbert's social statics are hardly of the same kind as the thoughts of Locke, Rousseau, and Paine.  And, yes, you are right that their writings were not "enacted" (wrong term, however) by the adoption of the Constitution, but the drafting of the words of the Constitution was done in light of, and using the language of the Enlighetment.  Indeed, the very existence of a nation createde by men, out of a set of more or less consistent ideas about the rights of and nature of humans  was unique, and was a creation of those "libertarians" for want of a better word, not to be compared to the present day radical libertarians, of which I am not.

                            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                            by StrayCat on Mon Jun 18, 2007 at 06:11:59 AM PDT

                            [ Parent ]

                          •  So the question is then (1+ / 0-)
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                            Jimdotz

                            do you agree that Lochner was correctly decided and that the New Deal jurispudence starting with West Coast Hotel is wrong?  

                            I am all for ideological consistency, if not over time, then at leat at any given time.  Do the decisions in Roe and Casey counsel for the reinstatement of the Lochner doctrine?

                      •  By the way, I guess the tenth (1+ / 0-)
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                        Jimdotz

                        Amedment is just to make the Bill of Rights an even number.

                        Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                        by StrayCat on Sun Jun 17, 2007 at 12:49:51 PM PDT

                        [ Parent ]

                        •  The Tenth Amendment simply (1+ / 0-)
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                          Jimdotz

                          explicitly vests general police power in the States and not the federal government.  It is there to make explicit that the powers in Articles I-III delegated to the feds are a finite set.  It does not confer rights on the individuals.  It talks abou power not rights.

                          •  No, it talks of rights, and limits power. (1+ / 0-)
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                            Jimdotz

                            You are righjt in that it preserves the polices powers to the states, but it does not give it directly, but only through the people, and within the limits set by the Constitutional guarantee of rights.  It is a different subbject matter from the Ninth, in that the 10th deprives the Federal government of any general police power, whereas the Ninth guarantees all rights held by humans as individuals, and the priority of people over governments.

                            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                            by StrayCat on Sun Jun 17, 2007 at 06:43:21 PM PDT

                            [ Parent ]

                  •  Second reply to comment. (1+ / 0-)
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                    Jimdotz

                    The Constitution provides protection of rights, in writing, and not subject to "legal tradition" or statutory law which is changable.  The palmer raid, the alien and sedition acts and the patriot acts are all statutory assaults on our rights as human beings and resiodents of the U.S.  Indeed, Scalia himself denies that our laws are rationally based and claims they are from God.  there is no guarantee in God given laws, as God changes his, hers, its, theirs, mind with every retranslation of the Bible, of whatever book the god people are relying on at the time.

                    Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                    by StrayCat on Sun Jun 17, 2007 at 11:34:57 AM PDT

                    [ Parent ]

    •  an example? (1+ / 0-)
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      Jimdotz

        That both sides can read into the Constitution orignal intent just goes to support my idea that orginal intent is a red herring. If orignal intent is meaningful how could rational people come up with diametrically opposing conclusions?
        Rather than trying to get into the heads of the Founders who, if my history serves me in good stead, were by no means of a single mind on very much, I would suggest that we take the true measure of our national sense of right and wrong - our cannon of civic values - and base our interpretation of law on that, because the Constitution was the result of a complex intertwining of compromises NOT a consensus document of a single-minded body of Founders.  This document refects not what they all agreed on but that which they could all live with.  
        Roe v. Wade was rightly decided not because of the orginal intent of the Founders but because the implementation of strict abortion prohibition is repugnant to our civic sensibilities...much for the same reason that prohibition was reversed.  We are not willing to make nurse's informants on their employers, extend a police presence into a doctor's examining room or destroy a doctor's career because he obeys the wishes of his patient nor are we willing to prosecute a woman for murder for submitting to an abortion.  
        Those are all beyond our sense of what it means to live in a free society and if you ask those who jump up and down the most about the evils of abortion you will find that they, too, are not willing to make a pregnancy the occasion of the rebirth of a communist-style police state.    
       

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