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  •  You really can't read (0+ / 0-)

    I didn't say that Madison and Jefferson said the Supreme Court will update the Constitution.  As long as you bring it up, though, the Constitution itself didn't say anything about the Supreme Court except to establish it.  It was left to Congress but Marshall took up the cause we know today and there wasn't much protest from the founders so I think there are safe assumptions that can be made.

    In any event, what did they have to say about the 9th Amendment?  And their private thoughts are eminently important here as they were the chief authors and arguers for what went into the Constitution and to what was agreed.  So, their thoughts and arguments are most relevant.

    And from a literalist point, the 2nd Amendment is dead unless one is ready to abolish the military and conscript everyone for a period of time from time to time.

    Give me ten lines from a good man and I'll find something in there to hang him. - Cardinal Richelieu

    by lgrooney on Tue Jun 26, 2007 at 07:36:14 AM PDT

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    •  First of all, I am not a literalist (0+ / 0-)

      but an originalist.  You should learn the difference.

      Second, private thoughts even of really important people are irrelevant.  The Constitution is a contract between the people and so what matters is the intent of the parties (note plural form) to the contract, i.e., their understanding what they were signing.  Some private thoughts and reservations are utterly irrelevant.

      Third, please point out where Chief Justice Marshall even remotely suggested that the meaning Constitution changes with the change of attitudes on the Supreme Court.  

      Fourth, the Ninth Amendment is not a catch all provision, nor is it secret repository of ever-expanding rights into which judges can reach and pull out whatever new right they fancy.  If that were so, there would be absolutely no need whatever for any other amendments or even for an amendment process.  Under that theory, the First Amendment is meaningless because the rights embodied in there would be covered by the Ninth.

      Fifth, your point on the Second Amendment is simply bizarre.  The Amendment guarantees the right to PEOPLE, irrespective of their service in the military.  Furthermore, I was unaware that some Constitutional guarantees can simply "die."  I was under the impression that the very reason these guarantees are written into the Constitution is to make them permanent.  

      •  SSDD (0+ / 0-)

        Literalist... originalist.

        So what the framers thought, what they talked and wrote to each other about, how they answered questions related to what went into the Constitution is irrelevant?  Interesting theory since all of that was used in arguing for this wording to help people understand why it is written the way it is written.

        Next, given that the Framers were well aware of the need to strictly limit the powers of government given that it was led by men who were necessarily fallible, it makes little sense to think they were so stupid as to relegate the status of their words to that of the Ten Commandments, i.e., superstitious mumbo jumbo carved in stone forever.  This is also why the language was so brief, open, and vague at times.  It is also why the Constitution allows Amendments to be added or scrubbed.

        My reference to Marshall was his assumption of the power of the Supreme Court to determine the Constitutionality of legislation.  Beyond that, in reference to your words here and those above, it's a cute right-wing talking point but it's not true to say that the Court is inventing laws or rights on its own.  The Court doesn't have to invent rights since the Constitution specifies that rights are retained by the people whether specifically listed in the Constitution or not unless expressly prohibited by it.  IOW, student, it says that whatever the Constitution doesn't prohibit (that limitation of powers thing again) the people can do (with the implied contract that those rights people want to declare for themselves only extend so far as the rights of others begin).

        You're partially right that the Ninth essentially does cover the all the rights listed otherwise but that is why they included the language they did, i.e., paraphrasing, "Just because we list some specific rights does not mean that this exhausts the possible rights of the people."  They were mostly concerned with limiting government power not the rights of the people.

        Bizarre?  Given that this Amendment was included to ensure a check on government power by citizens in a populace raised on a strong wariness of standing armies, but yet to ensure there were sufficient arms available should the need arise to quell invasion and join the militia under one command, it is not bizarre at all.  We have the standing army and the abuse of it about which we were warned so long ago.  So, given that, plus the fact that we do now have individual state militias, it seems the Second is of little use (except for the fact that we have a president who believes in his limitless power which would argue strongly in favor of forcefully supplying all of your friends, family, and neighbors with arms).

        Give me ten lines from a good man and I'll find something in there to hang him. - Cardinal Richelieu

        by lgrooney on Tue Jun 26, 2007 at 10:29:34 AM PDT

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        •  Given that you do not know the difference between (0+ / 0-)

          originalist and literalist, I am not surprised at the rest of the gibberish that you spout.

          What Founding Fathers thought to themselves is very interesting but irrelevant.  What is relevant is what the people who signed up to live under the Constitution thought they were signing up for.  Private thought, just like private  contractual reservations are useless.

          Among the rights retained by the people, is the right to legislate in spheres where the legislation is not prohibited.  That is a right that is retained.  Since the Constitution does not prohibit legislation in the sphere of abortion, for instance, the people have retained the right to legislate therein.

          Your theory on the Ninth is not supported by ANY caselaw. I have asked repeatedly to provide anything other than your say-so, and you have failed time and again.  And not surprising, because by your own admission, the Ninth Amendment makes everything else (including the very process for amending the Constitution) utterly unnecessary.  That of course runs headlong into the fundamental principle of legal interpretation, to wit, that all words should be given meaning and not rendered mere surplassage.

          Finally, as to the Second Amendment.  That it is useful or useless is not at all the point.  The Third Amendment is not of much use either.  Yet, the government still cannot quarter soldiers in my house.  Much like they cannot take away my right to keep and bear arms.  

          •  Your utter inability to comprehend (0+ / 0-)

            is astounding, Scalito.  Perhaps if you read some literature this wouldn't be so difficult.  Then again, if you were better at nuance, logic and reading between the lines you wouldn't be a wingnut.

            In any event, once again and for the last time, I am not talking about the sugar plums dancing in TJ's head but the words he used in writing about the arguments for or against something, especially those found in his exchanges with Madison as they drafted and argued the words to go into the Constitution (see TJ was off in France during the Convention).  Since they were the arguments that largely made the case for what went into the wording, they are highly relevant because they shed more light on what the parties agreed to, i.e., we have little record of what everyone thought about everything back then.

            My theory on the Ninth, originalist, is supported by the words, written and spoken, of the Founders (most notably Jefferson and Wilson under the heavy influence of Locke and his disquisition on 'natural rights').  They indeed thought it ludicrous to attempt to list all the rights of people because those rights are limitless to the point of imagination so long as they don't intrude on those of others.  The bastardization of this original thinking happened later by people who couldn't imagine... didn't get complexity and gray areas.

            As for the Bill of Rights be a limiter of the rights enjoyed by the people, you may find it interesting in the arguments between the Federalists and anti-Federalists that James Madison, arguing on the side of the former, said that a bill of rights would be "dangerous" for the very reason that it may be used as a tool of the powerful to argue that because the right is not written into the Constitution it is, therefore, non-existent.

            He saw the rise of the right wing nut jobs like the Scalias, Roberts, Rehnquists and Alitos (and their political sponsors) long before they actually came to power.

            The Third is not much use?  Really?  Useful or useless is certainly an important distinction since archaic laws can be used in order to find something, anything, in order to convict someone.  Thus, we have the amendment process in order to wipe out archaisms.

            Give me ten lines from a good man and I'll find something in there to hang him. - Cardinal Richelieu

            by lgrooney on Tue Jun 26, 2007 at 12:33:27 PM PDT

            [ Parent ]

            •  You still have utterly failed to cite (0+ / 0-)

              anything, even in the writings of Messrs. Jefferson and Madison to suggest that the Constitution enacted libertarianism.  Nor can you provide any support for the proposition that it would be the courts who would keep enlarging the zone of supposed rights as they see fit.  Nor can you find support for any of these propositions in any case law.  In other words, you have no support whatsoever.

              However, since you insist on this notion, please explain the constitutionality of minimum wage laws.  If I and an employer freely agree to work for less than minimum wage, what business is it of the government?  

              You have consistently failed to explain the usefulness of the amendent process if the Constitution can be simply reinterpreted to mean whatever the Court wants it to mean.  You have failed to explain why private correspondance between people, correspondance that the ratifiers did not see and therefore could not base their decisions on is of any importance.  Federalist Papers, being published and being an argument for the Constitution can be used as evidence, because they were accessible to teh ratifiers and informed their decision whether or not to vote for the Constitution.  Private correspondance is meaningless.  

              Your last paragraph is just pure gibberish.

              My advice: either a) go to law school or b) if you have gone, seriously consider taking CLEs.

              •  Go read yourself (0+ / 0-)

                The Federalist Papers or the collected writings of TJ.  You'll find all you need and more.  You may actually learn something about American Constitutional history and you will be able to consider yourself far more literate than your Scalitos in Spiderman tights.

                I have no need to support "the proposition that it would be the courts who would keep enlarging the zone of supposed rights as they see fit" because I never said that.  The courts don't have that authority as it is an inherent authority within each individual insofar as they are not specifically limited by the Constitution.

                I don't believe that minimum wage laws are Constitutional from a literal standpoint, especially where both sides agree to it.  However, it may be right and may be Constitutional inasmuch as the power in the hands of the employer can be used as a tool to infringe on the rights of the employee for nothing more than the employer's greed.  This may or may not be true depending more than anything else on the mobility of the employee, the barriers to entry should the employee decide to compete with said employer, and costs of living.  In other words, if the employee has real options then I don't think a right can be argued as infringed.

                2/3 of a person may be a good starting point for a discussion of the amendment process v. interpretation but I feel too much time has been wasted trying to get you to wrap your wingnut brain around any of this.  In any event, I think Justice Thomas needs his lemon squeezed for tea time so you'd better hurry along.

                Gibberish?  Seems my only real failure here is to find a supercollider powerful enough to get information into your density.

                And you know what you can do with your advice... use your imagination, the same one you use to envision the rights you have.

                Give me ten lines from a good man and I'll find something in there to hang him. - Cardinal Richelieu

                by lgrooney on Tue Jun 26, 2007 at 01:12:14 PM PDT

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                •  Comment number what now? (0+ / 1-)
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                  And still utter failure to produce any support for your position.

                  Whare did you get YOUR law degree?

                  •  The problem with wingers (0+ / 1-)
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                    is that nothing can ever be offered that you will find acceptable and you will twist words, examples and logic in an effort to spin away reality to your own viewpoint.  I am not going to do the research for you, numbnuts.  I have told you where you can find it.  Now, go find it.

                    Where did I get MY degree?  What are you some jr. high prick trying to inflate himself?

                    Peace.  Out.

                    Give me ten lines from a good man and I'll find something in there to hang him. - Cardinal Richelieu

                    by lgrooney on Tue Jun 26, 2007 at 04:39:41 PM PDT

                    [ Parent ]

                    •  No, it is incumbent upon you (0+ / 0-)

                      to provide evidence for your assertions.  I understand that it is hard to do, given the fact that such evidence does not exist, but that does not relieve you of an obligation to back up your theories.

                      I also take it that you do not have a law degree, so that excuses your gibberish in part.

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