A most remarkable issue with the US constitution, which came up in Jackson's hearing

[Craig234]

I've talked for a long time about the neglect of the idea in the constitution of rights it says are protected but which are not enumerated.

This was arguably the core, leading controversy around the constitution when it was enacted. Representatives were committed to the idea of strong rights.

The basic approach in the constitution to protecting those rights was to say the constitution granted specific, limited powers to the government. The protection for a right was to say, the constitution doesn't give the government the power to violate that right. For example, the right to free speech was protected because the constitution didn't give government the power to restrict it.

However many were not comfortable that was strong enough. They felt it was ambiguous enough that rights could be encroached, and wanted key rights they were concerned about to be specifically listed, such as free speech. These people refused to approve of the constitution, which would prevent it being enacted.

Others, however, saw a problem with this - that it changed the approach from limited government rights, to one of listing rights, and that it was impossible to list all the rights they wanted to protect - which would weaken or remove protection for other rights because they weren't listed. That it would gut the protection of rights they wanted.

Finally James Madison came up with a compromise. They would pass a "bill of rights" - enumerate specific rights to ensure they were protected - but add an amendment saying that enumerating those rights did not reduce the protection from other rights. This was basically saying, 'ya, we're going to mention some, but that really has no effect, it's not why they're protected, and there are more.'

In practice, in my opinion, the predictions were right on target. As predicted the court focused very much on the enumerated rights, and others were second class at best, if not non-existent. No judge I know ever said, 'this right is fully protected as an unenumerated right equal to enumerated rights'. They have rarely identified unenumerated rights, but it was quite an uphill battle.

In fact, when I've looked for rulings based on the ninth amendment, where it has any effect, when judges have cited the amendment in recognizing a right. So all of these unenumerated rights founders were so concerned about to write the ninth amendment - what are they, where are they?

This came up during Jackson's Supreme Court confirmation hearing yesterday. Jackson was asked which rights the Supreme Court has ever identified as based on the ninth amendment. She answered, none.

What a statement. A fundamental issue for our constitution to protect rights, saying they don't have to be listed to be protected, and yet never actually applying that protection to any rights - and almost never identifying such unenumerated rights even without use of the ninth amendment. The critical amendment to the constitution's approval, unused.

To this day, this is not at all addressed. the handful of unenumerated rights are some of the most controversial. Any suggestion of an unenumerated right is immediately attacked as 'legislating from the bench' and a judge abusing their power to make up rights based on their personal politics. The concerned founders were correct: enumerating some rights drastically changed the protection of rights.

 

[Grim17]

in·al·ien·a·ble

adjective

1. unable to be taken away from or given away by the possessor.

.

 

[aociswundumho]

This came up during Jackson's Supreme Court confirmation hearing yesterday. Jackson was asked which rights the Supreme Court has ever identified as based on the ninth amendment. She answered, none.

Griswold ruled that a married couple has a right to privacy* based in part on the ninth amendment.

*There is no such right.

What a statement. A fundamental issue for our constitution to protect rights, saying they don't have to be listed to be protected, and yet never actually applying that protection to any rights - and almost never identifying such unenumerated rights even without use of the ninth amendment. The critical amendment to the constitution's approval, unused.

To this day, this is not at all addressed. the handful of unenumerated rights are some of the most controversial. Any suggestion of an unenumerated right is immediately attacked as 'legislating from the bench' and a judge abusing their power to make up rights based on their personal politics. The concerned founders were correct: enumerating some rights drastically changed the protection of rights.

It can't be addressed. You basically have the right to do whatever you want as long as you do not harm anyone else or damage anyone else's property. No government is going to agree with that. Furthermore, we all have the right to own property, and the state is the biggest violator of property rights that has ever existed.

 

[Razoo]

GW publicly described the Constitution and Bill of Rights as god damn pieces of paper ...........

Then again he also said his job would be easier if the USA was a dictatorship

 

[Razoo]

I've talked for a long time about the neglect of the idea in the constitution of rights it says are protected but which are not enumerated.

This was arguably the core, leading controversy around the constitution when it was enacted. Representatives were committed to the idea of strong rights.

The basic approach in the constitution to protecting those rights was to say the constitution granted specific, limited powers to the government. The protection for a right was to say, the constitution doesn't give the government the power to violate that right. For example, the right to free speech was protected because the constitution didn't give government the power to restrict it.

However many were not comfortable that was strong enough. They felt it was ambiguous enough that rights could be encroached, and wanted key rights they were concerned about to be specifically listed, such as free speech. These people refused to approve of the constitution, which would prevent it being enacted.

Others, however, saw a problem with this - that it changed the approach from limited government rights, to one of listing rights, and that it was impossible to list all the rights they wanted to protect - which would weaken or remove protection for other rights because they weren't listed. That it would gut the protection of rights they wanted.

Finally James Madison came up with a compromise. They would pass a "bill of rights" - enumerate specific rights to ensure they were protected - but add an amendment saying that enumerating those rights did not reduce the protection from other rights. This was basically saying, 'ya, we're going to mention some, but that really has no effect, it's not why they're protected, and there are more.'

In practice, in my opinion, the predictions were right on target. As predicted the court focused very much on the enumerated rights, and others were second class at best, if not non-existent. No judge I know ever said, 'this right is fully protected as an unenumerated right equal to enumerated rights'. They have rarely identified unenumerated rights, but it was quite an uphill battle.

In fact, when I've looked for rulings based on the ninth amendment, where it has any effect, when judges have cited the amendment in recognizing a right. So all of these unenumerated rights founders were so concerned about to write the ninth amendment - what are they, where are they?

This came up during Jackson's Supreme Court confirmation hearing yesterday. Jackson was asked which rights the Supreme Court has ever identified as based on the ninth amendment. She answered, none.

What a statement. A fundamental issue for our constitution to protect rights, saying they don't have to be listed to be protected, and yet never actually applying that protection to any rights - and almost never identifying such unenumerated rights even without use of the ninth amendment. The critical amendment to the constitution's approval, unused.

To this day, this is not at all addressed. the handful of unenumerated rights are some of the most controversial. Any suggestion of an unenumerated right is immediately attacked as 'legislating from the bench' and a judge abusing their power to make up rights based on their personal politics. The concerned founders were correct: enumerating some rights drastically changed the protection of rights.

And we have too many elected officials who know not that they are talking about thus they believe that their interpretation replaces the Constitution/Bill of Rights.

And too many believe that these elected officials know what they are talking about.

And too many seem to believe that respect comes from being elected when in fact respect is earned over
a period of time.

 

[Craig234]

GW publicly described the Constitution and Bill of Rights as god damn pieces of paper ...........

Bush: The Constitution a 'Goddamned Piece of Paper'? - FactCheck.org

Q: Did President Bush call the Constitution a “goddamned piece of paper”? A: Extremely unlikely. The Web site that reported those words has a history of quoting phony sources and retracting bogus stories. FULL QUESTION Is it true that President Bush called the Constitution a “goddamned piece of...

www.factcheck.org

 

[Antiwar]

Any suggestion of an unenumerated right is immediately attacked as 'legislating from the bench' and a judge abusing their power to make up rights based on their personal politics. The concerned founders were correct: enumerating some rights drastically changed the protection of rights.

You got any examples of the first sentence?

It was all bull from the beginning: The government decides if certain rights have been violated, IF the supreme court takes up the case. That's similar to the fact that the 'framers' decided who those rights did and did NOT apply to.

Can a better system be set up? I think so. It'd have to involve 'the people.' How? Maybe have a counterpart to Justices: 'Civilian Justices'? Most American courts have three or four groups that make the legal case and decision: defense, prosecution, judge, and jury. What does the supreme court have? Litigants and Justices? Who's representing 'the people'? Supposedly congress and the president, since we supposedly elect them, and they determine who becomes a Justice, and Justices are supposed to represent 'the people.' That seems very circular, with 'the people' out of the circle, as per usual, as the 'framers' intended government power to be.

Please correct anything I got wrong.

 

[Buckeyes85]

Griswold ruled that a married couple has a right to privacy* based in part on the ninth amendment.

*There is no such right.



It can't be addressed. You basically have the right to do whatever you want as long as you do not harm anyone else or damage anyone else's property. No government is going to agree with that. Furthermore, we all have the right to own property, and the state is the biggest violator of property rights that has ever existed.

No right to privacy based upon what?

 

[Craig234]

You got any examples of the first sentence?

Can you clarify your question? The attacks about 'legislating from the bench' would fill books. The attacks on any ruling defending non-enumerated rights, claiming the Justices just make up the rights, are easily found.

 

[Antiwar]

Can you clarify your question? The attacks about 'legislating from the bench' would fill books. The attacks on any ruling defending non-enumerated rights, claiming the Justices just make up the rights, are easily found.

If I understand what you meant, then Justices would ONLY be hearing enumerated rights. So, how would they be 'legislating from the bench' on rights they don't hear? In other words, enumerated rights are the only rights that are heard, and Justices are accused of 'legislating from the bench' when enumerated rights are altered. Take the subject of gun rights. If Justices restrict or expand gun rights with a ruling, then they can be accused of 'legislating from the bench.'

 

[aociswundumho]

No right to privacy based upon what?

Based on the fact that it's incoherent.

Imagine a woman getting undressed at night near a window and she forgets to close the curtains. Some guy standing on the street sees her naked. Did he violate her privacy? Yes. Did he violate her rights? No. You can come up with all kinds of scenarios where a person violates someone's privacy without doing anything morally wrong, and if they are not doing anything morally wrong, then they are not violating anybody's rights.

Furthermore what constitutes a violation of privacy is extremely subjective. Some women in the above scenario might like it if the guy on the street sees them naked. So now the guy in the street is violating her privacy while at the same time giving her pleasure.

There is no right to privacy, there are only property rights. In the scenario above, the burden is on the woman to use her property (her clothes, her house, etc) in such a way that others can't violate her privacy without violating her property rights.

 

[Antiwar]

There is no right to privacy, there are only property rights. In the scenario above, the burden is on the woman to use her property (her clothes, her house, etc) in such a way that others can't violate her privacy without violating her property rights.

There's an implied right to privacy in several amendments and it's not incoherent.

There are much more than property rights.

 

[wist43]

Your God given, or natural, rights exist without them being granted by the Constitution.

That was one of the objections some of the Founders had to the BOR; arguing that if some rights were cited in the Constitution, it could be construed as the granting of rights, and therefore argued that rights that were not cited did not exist.

That notion turns the Constitution upside down.

The Constitution does not grant rights to citizens; rather, the Constitution is supposed to restrict the Federal Government from doing anything it is not specifically authorized to do in the Constitution.

Of course America abandoned the Constitution back in the 1930's, and turned it upside down.

We The People, 90 years later, are now trying to live under the enormous weight of excessive regulation and debt - most of which is wholly unconstitutional.

We will not survive much longer. America will fall within the next 5-10 years, maybe less.

We are being deliberately and systematically destroyed from within.

 

[aociswundumho]

There's an implied right to privacy in several amendments and it's not incoherent.

There are much more than property rights.

Property includes your physical body.

You have rights regarding your body and your other property, that's it. If you disagree, provide some examples. We are talking about natural rights, not legal rights, which are in fact privileges granted by the state.

 

[Craig234]

If I understand what you meant, then Justices would ONLY be hearing enumerated rights. So, how would they be 'legislating from the bench' on rights they don't hear? In other words, enumerated rights are the only rights that are heard, and Justices are accused of 'legislating from the bench' when enumerated rights are altered. Take the subject of gun rights. If Justices restrict or expand gun rights with a ruling, then they can be accused of 'legislating from the bench.'

What I'm saying is that any time a judge would dare recognize a right that isn't enumerated, as described in the ninth amendment, they'll be accused of legislating from the bench. As they have been with the 'right to privacy'. Guns aren't the best example because gun rights ARE vaguely enumerated in the second amendment.

 

[wist43]

If I understand what you meant, then Justices would ONLY be hearing enumerated rights. So, how would they be 'legislating from the bench' on rights they don't hear? In other words, enumerated rights are the only rights that are heard, and Justices are accused of 'legislating from the bench' when enumerated rights are altered. Take the subject of gun rights. If Justices restrict or expand gun rights with a ruling, then they can be accused of 'legislating from the bench.'

They are not legislating from the bench in that case, they are literally violating the Constitution.

Saying they are legislating from the bench implies they are enacting law which the legislature has the authority to enact, but has not.

In the case of gun rights, neither the Congress nor the Judiciary has the Constitutional authority to enact any law which restricts the right to bear arms.

Of course they aren't going to let the Constitution get in their way.

-----------------------------

An example of "legislating from the bench" would be what the SC did with Obamacare - they (the majority anyway) literally rewrote the law to fit what they thought would pass Constitutional muster.

Of course they have no such Constitutional authority to rewrite legislation. If it was deemed to be unconstitutional, it should have been rejected and the legislature would have to try again.

But of course, corrupt politics doesn't work that way.

 

[rickc]

GW publicly described the Constitution and Bill of Rights as god damn pieces of paper ...........

Then again he also said his job would be easier if the USA was a dictatorship

And waterboarding isn't torture

 

[Antiwar]

Property includes your physical body.

You have rights regarding your body and your other property, that's it. If you disagree, provide some examples. We are talking about natural rights, not legal rights, which are in fact privileges granted by the state.

The case that was mentioned, Griswold, was about the right for married couples to purchase contraceptives. I suspect you'll claim that being able to buy contraceptives is a property right. If so, then you've boiled everything down to property, which I disagree with.

Using a variation of your example: It's illegal for a business to have cameras in bathrooms.

Is there such a thing as 'natural rights'?

 

[wist43]

Property includes your physical body.

You have rights regarding your body and your other property, that's it. If you disagree, provide some examples. We are talking about natural rights, not legal rights, which are in fact privileges granted by the state.

Nonsense... unless one lives in an authoritarian state.

Which the United States is, of course, becoming.

Have you never read any of our nation's founding documents??

 

[Antiwar]

In the case of gun rights, neither the Congress nor the Judiciary has the Constitutional authority to enact any law which restricts the right to bear arms.

So you're a 2A absolutist.

 

[Craig234]

They are not legislating from the bench in that case, they are literally violating the Constitution.

They're violating the constitution to protect a right the constitution says is protected?

In the case of gun rights, neither the Congress nor the Judiciary has the Constitutional authority to enact any law which restricts the right to bear arms.

The topic isn't about guns, which is an enumerated right. But, every right has limits.

An example of "legislating from the bench" would be what the SC did with Obamacare - they (the majority anyway) literally rewrote the law to fit what they thought would pass Constitutional muster.

Of course they have no such Constitutional authority to rewrite legislation. If it was deemed to be unconstitutional, it should have been rejected and the legislature would have to try again.

But of course, corrupt politics doesn't work that way.

I can't tell what you're referring to on the ACA - the part they upheld or the part they struck down - but can you show me where in their ruling they based it on un-enumerated rights from the ninth amendment? That is the topic.

For corrupt politics and the court, see my posts of Sen. Whitehouse on the topic.

 

[Craig234]

And waterboarding isn't torture

What a similarity, Bush saying the US doesn't torture and Putin saying Russia doesn't attack civilians. No wonder Bush 'looked into his eyes' and liked what he saw.

 

[wist43]

They're violating the constitution to protect a right the constitution says is protected?



The topic isn't about guns, which is an enumerated right. But, every right has limits.



I can't tell what you're referring to on the ACA - the part they upheld or the part they struck down - but can you show me where in their ruling they based it on un-enumerated rights from the ninth amendment? That is the topic.

For corrupt politics and the court, see my posts of Sen. Whitehouse on the topic.

The Constitution does not authorize Congress to do most of what it is currently doing.

Medical, retirement, education, child care, etc...

None of those things are found in the Constitution except by nefarious interpretation.

Our government is out of control and our national balance sheet blood red because the SC and our entire Fedgov simply stopped adhering to the Constitution, and the people blithely accepted it.

As a result, our nation has been in a death spiral ever since.

It's not the complicated.

 

[aociswundumho]

The case that was mentioned, Griswold, was about the right for married couples to purchase contraceptives. I suspect you'll claim that being able to buy contraceptives is a property right.

That's correct.

If so, then you've boiled everything down to property, which I disagree with.

What rights do you claim to have that are not property rights?

Using a variation of your example: It's illegal for a business to have cameras in bathrooms.

Current law, which is nothing but the decrees of politicians, has nothing to with whether or not a right to privacy exists.

Is there such a thing as 'natural rights'?

My personal moral intuitions tell me there are.

 

[aociswundumho]

We are talking about natural rights, not legal rights, which are in fact privileges granted by the state.

Nonsense... unless one lives in an authoritarian state.

Which the United States is, of course, becoming.

Have you never read any of our nation's founding documents??

I'm not sure which part you disagree with, as there are multiple claims in the sentence you put in bold.