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Constitutional basic issue, for the right especially

Aunt Antifa

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I don't want my President to violate ANY of it. 1A absolutely does not mean "twitter".

Times HAVE changed, and there is a Constitutional method of changing it. You libbies just can't get enough support for your cockamamie ideas.

Now, what else did you get wrong?

Us libbies aren’t demanding constitutional protection over tweeting.
 

Buckeyes85

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Try reading the plain language of amendments 2 and 4 thru 8. Unless you’re trying to make a “natural rights” philosophical argument, which frankly I think has less relevance in a legal discussion.
I am quite familiar with each of them. Does not change anything.
In fact, I don't know how you read the 2nd as not proving my point. Saying that a right shall not be infringed is the exact opposite of suggesting the right is being granted. You cant infringe upon something that did not previously exist.
 

Craig234

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The constitution does not grant any rights to the people. You are reading it backwards as too many people do.
It tries to say that it doesn't, that it's just granting limited power to the government, but as a practical matter, it does 'grant rights to the people', or 'say it recognizes rights the people have'. Saying the government can't infringe free speech might not exactly be 'granting the right of free speech', but as a practical matter, that's what is protecting that right from government from government infringement of it.
 

Craig234

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In fact, I don't know how you read the 2nd as not proving my point. Saying that a right shall not be infringed is the exact opposite of suggesting the right is being granted. You cant infringe upon something that did not previously exist.

It's a semantic point mostly. Saying the constitution recognizes people's right to own guns, and saying it grants the right to own guns, has pretty much no practical difference. Either way, it's the constitution saying the people have that right and that's why they do have that right protected.
 

Jay59

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The constitution does not grant any rights to the people. You are reading it backwards as too many people do.
This is 100% backward. Power always resided in the king/state/government. Indivuduals only had priviledge.

I am quite familiar with each of them. Does not change anything. In fact, I don't know how you read the 2nd as not proving my point. Saying that a right shall not be infringed is the exact opposite of suggesting the right is being granted. You cant infringe upon something that did not previously exist.
This is bad semantics. In this case it is a direct reference to British Colonial rule.

Preamble: We the People of the United States,............. Article 1; Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Well that was pretty easy. Want to go 0 for 2?
Cheesy and weak.

It tries to say that it doesn't, that it's just granting limited power to the government, but as a practical matter, it does 'grant rights to the people', or 'say it recognizes rights the people have'. Saying the government can't infringe free speech might not exactly be 'granting the right of free speech', but as a practical matter, that's what is protecting that right from government from government infringement of it.
it's more than that. It is enlarging a custom/privilege to a right.

The Government has the power, literally, of life and death. It has been that way since before the invention of writing. Individuals had only such privileges as the ruler deigned to create or acknowledge. The Magna Carta is a landmark in that it formalized limits to the power of the ruling authority. The Constitution is the first to formalize the rights of individuals.

Buckeye is arguing that this process works in the opposite direction, ie that individuals have rights and grant to the government its powers. While it is interesting conceptually to say that all government power arises from the governed, as a practical matter it has always risen from access to raw force.

It's a semantic point mostly. Saying the constitution recognizes people's right to own guns, and saying it grants the right to own guns, has pretty much no practical difference. Either way, it's the constitution saying the people have that right and that's why they do have that right protected.
Insofar as it is a right, you are correct. However, to say the Constitution recognizes the right is semantically incorrect. Take away the document and the right is also gone.
 
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Buckeyes85

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This is 100% backward. Power always resided in the king/state/government. Indivuduals only had priviledge.


This is bad semantics. In this case it is a direct reference to British Colonial rule.


Cheesy and weak.


it's more than that. It is enlarging a custom/privilege to a right.

The Government has the power, literally, of life and death. It has been that way since before the invention of writing. Individuals had only such privileges as the ruler deigned to create or acknowledge. The Magna Carta is a landmark in that it formalized limits to the power of the ruling authority. The Constitution is the first to formalize the rights of individuals.

Buckeye is arguing that this process works in the opposite direction, ie that individuals have rights and grant to the government its powers. While it is interesting conceptually to say that all government power arises from the governed, as a practical matter it has always risen from access to raw force.


Insofar as it is a right, you are correct. However, to say the Constitution recognizes the right is semantically incorrect. Take away the document and the right is also gone.

Cheesy and weak? The actual words of the constitution prove you were completely wrong, and that's cheesy? OK, I guess.

As to the first part about the power always residing with the king/government, um duh. Do you not appreciate that was the principle cause of our break with England, the crown and the purpose of founding our country? It was the intent to do the exact opposite and that was the whole purpose of the constitution? To cite the rule of law of the British Crown as the lens thru which the Constitution should be read is a rather mind boggling thought.
 

Buckeyes85

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It's a semantic point mostly. Saying the constitution recognizes people's right to own guns, and saying it grants the right to own guns, has pretty much no practical difference. Either way, it's the constitution saying the people have that right and that's why they do have that right protected.
I appreciate it may seem like a distinction without a difference, and in most of our ordinary lives, it doesn't make a difference. But when constitutional issues such as abortion, or the right to die, or any number of things arise, the distinction is significant.
 

Craig234

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I appreciate it may seem like a distinction without a difference, and in most of our ordinary lives, it doesn't make a difference. But when constitutional issues such as abortion, or the right to die, or any number of things arise, the distinction is significant.

Is it, though? In one case, it's an unspecified right given to people. In the other case, it's an unspecified right the constitution recognizes people have that should not be infringed. What's the practical difference?
 

Jay59

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Cheesy and weak?
Exactly.

The actual words of the constitution prove you were completely wrong, and that's cheesy?
They don't prove me wrong. You choose to misinterpret them.

The use of the word grant is confusing because in context it means something like delegate or assign. Each division of the government is given its piece of the state's whole pie. The Constitution does not grant the government power, but it does assign the government's power to specific branches. When Congress is granted the power to make law, while the Executive is granted the power to enforce the law, the Constitution is dividing up what was already the province of the state.

OK, I guess.
That's an I don't understand.

As to the first part about the power always residing with the king/government, um duh.
You just spent a great deal of verbiage denying this was the case.

Do you not appreciate that was the principle cause of our break with England, the crown and the purpose of founding our country? It was the intent to do the exact opposite and that was the whole purpose of the constitution? To cite the rule of law of the British Crown as the lens thru which the Constitution should be read is a rather mind boggling thought.
This is fundamentally misguided. The Rule of law as it existed in 17th century England is the soil that nourished our system. Many things were simply adopted. Others were streamlined or redirected. Only a handful of things were deliberately changed.

It's worth noting that the original government, under the Articles of Confederation, mostly codified the Continental Congress that existed prerevolution. it failed in large part because it did not provide for things that the British had contributed to colonial governance, notably administration, police, and courts.
 

Simpletruther

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You want to write a constitution for the United States. In it, you say that you want to give the federal government specific power, but to limit them to those powers, and powers they aren't given are retained by the people. You decide to list a few especially key rights, like free speech and the right to have guns, and just to make sure that rights that you didn't highlight aren't lost, you say any others are kept by the people.

Then a state or the federal legislature passes a law limiting a right of people that isn't listed in the constitution. How would you suggest that right be protected? How would you respond if a Supreme Court Justice said they were an "originalist", and if it wasn't listed, then he doesn't recognize it? You can answer both if the right in question is abortion, or another right.

Would you support saying that the right way to ban abortion would be to pass a constitutional amendment, as was done for alcohol, another right not given to the government?

What do you think you should do if your political interests conflict with the constitution?
A right to abortion would conflict with the right to life.
 

diz

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I am quite familiar with each of them. Does not change anything.
In fact, I don't know how you read the 2nd as not proving my point. Saying that a right shall not be infringed is the exact opposite of suggesting the right is being granted. You cant infringe upon something that did not previously exist.

OK, well that is so non-specific as to avoid being meaningful in any way. if you want to espouse a natural right argument you are left with the question “which rights are natural rights?"

What prevents five unelected justices from looking at the entrails of a goat and deciding there is a natural right to a six pack of Heineken every Tuesday?
 

Buckeyes85

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Is it, though? In one case, it's an unspecified right given to people. In the other case, it's an unspecified right the constitution recognizes people have that should not be infringed. What's the practical difference?
In the two examples you mentioned, no there is no significant distinction there.
But the other example that has been argued is that he bill of rights actually grants the right, as opposed to reminding the government certain ones not to be infringed.

You may be aware there was a strong argument against including any bill of rights at all. Some argued: if we enumerate certain rights that are perhaps most dear to us, some will later argue those were the only rights the government expected that the people had. Those urging for an enumerated bill of rights suggested that would not happen. But that is exactly what happened. But that was not the intent.
 

Buckeyes85

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Exactly.


They don't prove me wrong. You choose to misinterpret them.

The use of the word grant is confusing because in context it means something like delegate or assign. Each division of the government is given its piece of the state's whole pie. The Constitution does not grant the government power, but it does assign the government's power to specific branches. When Congress is granted the power to make law, while the Executive is granted the power to enforce the law, the Constitution is dividing up what was already the province of the state.


That's an I don't understand.


You just spent a great deal of verbiage denying this was the case.

Exactly.


They don't prove me wrong. You choose to misinterpret them.

The use of the word grant is confusing because in context it means something like delegate or assign. Each division of the government is given its piece of the state's whole pie. The Constitution does not grant the government power, but it does assign the government's power to specific branches. When Congress is granted the power to make law, while the Executive is granted the power to enforce the law, the Constitution is dividing up what was already the province of the state.


That's an I don't understand.


You just spent a great deal of verbiage denying this was the case.


This is fundamentally misguided. The Rule of law as it existed in 17th century England is the soil that nourished our system. Many things were simply adopted. Others were streamlined or redirected. Only a handful of things were deliberately changed.

It's worth noting that the original government, under the Articles of Confederation, mostly codified the Continental Congress that existed prerevolution. it failed in large part because it did not provide for things that the British had contributed to colonial governance, notably administration, police, and courts.

All I can say is read posts you respond to better, and do more reading on the topic. Something beyond what you have been reading. Your continued citation to the law of the crown and/or England totally misses the point that our founding fathers wanted to do pretty much the complete opposite of that when it came to the source of power.
 

smallvoice

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OK, well that is so non-specific as to avoid being meaningful in any way. if you want to espouse a natural right argument you are left with the question “which rights are natural rights?"

What prevents five unelected justices from looking at the entrails of a goat and deciding there is a natural right to a six pack of Heineken every Tuesday?
No, it means we already have the right, and the government cannot futz with it. Just as it should be.
 

Jay59

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All I can say is read posts you respond to better, and do more reading on the topic. Something beyond what you have been reading. Your continued citation to the law of the crown and/or England totally misses the point that our founding fathers wanted to do pretty much the complete opposite of that when it came to the source of power.
You need a primer in both American history and the Constitution. Even a basic understanding would tell you that the writers were building on what they knew.

With some diligence, you can work your way up to Alexander Hamilton, but he's far above the level you are demonstrating now.
 

US&THEM

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You need a primer in both American history and the Constitution. Even a basic understanding would tell you that the writers were building on what they knew.

With some diligence, you can work your way up to Alexander Hamilton, but he's far above the level you are demonstrating now.

You do not understand the Constitution, please tell me you are not a lawyer.
 

Jay59

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You do not understand the Constitution, please tell me you are not a lawyer.
:LOL: :ROFLMAO: :LOL::ROFLMAO::LOL:

Translation, I don't like the way you think, so please tell me you aren't more educated than I am.

Let's just say I am not a member of the Bar, but I have done graduate work in Constitution.
 

US&THEM

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:LOL: :ROFLMAO: :LOL::ROFLMAO::LOL:

Translation, I don't like the way you think, so please tell me you aren't more educated than I am.

Let's just say I am not a member of the Bar, but I have done graduate work in Constitution.

Ok, that makes sense you have zero experience before the federal courts and/or dealt with a federal investigation etc. The fact you think the Constitution takes power from Govt is laughable.
 

Buckeyes85

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You do not understand the Constitution, please tell me you are not a lawyer.
It's obvious he does not understand the constitution and I am a lawyer. ;)
 

Craig234

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But the other example that has been argued is that he bill of rights actually grants the right, as opposed to reminding the government certain ones not to be infringed.

I think you hit the key issue, that the *intent* is that the bill of rights was unnecessary, and simply repeated the rights more explicitly; while the *practical* effect was exactly what those who demanded it feared, that the 'implicit' was ineffective and explicit was needed to actually establish them.

You may be aware there was a strong argument against including any bill of rights at all. Some argued: if we enumerate certain rights that are perhaps most dear to us, some will later argue those were the only rights the government expected that the people had. Those urging for an enumerated bill of rights suggested that would not happen. But that is exactly what happened. But that was not the intent.

On the one hand, you're right. On the other hand, it showed that those who demanded the bill of rights were correct - IMO, our constitutional law has been greatly built around the explicit rights, and it seems there's little doubt that without the bill of rights, those rights would have been given less strength by the courts. I've long said that IMO, the 'implied' rights have been greatly neglected.
 

Buckeyes85

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I think you hit the key issue, that the *intent* is that the bill of rights was unnecessary, and simply repeated the rights more explicitly; while the *practical* effect was exactly what those who demanded it feared, that the 'implicit' was ineffective and explicit was needed to actually establish them.



On the one hand, you're right. On the other hand, it showed that those who demanded the bill of rights were correct - IMO, our constitutional law has been greatly built around the explicit rights, and it seems there's little doubt that without the bill of rights, those rights would have been given less strength by the courts. I've long said that IMO, the 'implied' rights, the 9th and 10th amendments, have been greatly neglected.
Agreed and the supreme court takes the same position in that they typically apply 3 different standards of review, with the most stringent "strict scrutiny" being applied when a law potentially infringes upon a "fundamental right" such as those contained in the bill of rights. Not sure that's exactly how the framers intended it to work, but then again, they didn't even specifically articulate that the supreme court would be the ultimate arbiter of what is or is not constitutional. That took Marbury v. Madison in 1803.
 

Craig234

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Agreed and the supreme court takes the same position in that they typically apply 3 different standards of review, with the most stringent "strict scrutiny" being applied when a law potentially infringes upon a "fundamental right" such as those contained in the bill of rights. Not sure that's exactly how the framers intended it to work, but then again, they didn't even specifically articulate that the supreme court would be the ultimate arbiter of what is or is not constitutional. That took Marbury v. Madison in 1803.

They seemed I have to say rather incompetent when it came to designing that enforcement part of the system, as if just saying it was so in the constitution would settle the issues. Not that any system actually clearly does that well, including our corrupted mess of 5-4 rulings. I think it's not so much a 'not sure' as a 'clearly does not' fit their intent, but I don't think they had a clear idea what the implied rights were, either.

Really, we have gained a 'living constitution' less by design than by accident.

Influences play a powerful but unofficial role from cultural changes to monied interests to groomed ideology in the Federalist Society to of course political selection based on writings and rulings.

That very difference you mention of 'strict scrutiny' and the hostility to 'implied', unstated rights are both at direct odds with the stated intent for those rights. Founding fathers: 'we shouldn't have to list a right for it to be protected'. Court: 'it's listed, so we'll view it as more protected'. It's a lot messier than people would like to think, when think the constitution provides all the answers clearly - not even close.

But that level of 'opinion' and 'interpretation' that makes the constitution such a 'living document' seems to be a sort of grease that helps it meet the needs of the country with changes without having to go through the amendment process for every issue that comes up. The problem is IMO the corruption that now is in power making that flexibility re-write the constitution in harmful ways.
 

Jay59

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Ok, that makes sense you have zero experience before the federal courts and/or dealt with a federal investigation etc. The fact you think the Constitution takes power from Govt is laughable.
So, you think the 4th Amendment does not limit the government. Odd.

That you make the statement indicates you have a gut level understanding of the power native to a state. We force the governmental entity to follow forms and procedures to limit what it could do.

It's obvious he does not understand the constitution and I am a lawyer. ;)
Then, you have no excuse.

That said, your approach makes some sense within your division of the government. Before a magistrate, the situation appears to be reversed. The executive must show enabling authority from the legislature, allow for the rights enumerated by the Constitution or the statute, and respect judicial authority. We call them checks and balances. The point is that the power is there, just fragmented. The government can do almost anything that the three branches can agree to do, up to and including destroying life on this planet.
 
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