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

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  •  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

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        •  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

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            •  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-)
                  Recommended by:
                  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

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                    •  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-)
            Recommended by:
            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

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            •  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

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      •  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 ]

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