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.
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.
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?
Your argument is purely semantic. The writer says gives, when more correctly he/she means allocates. Ask yourself, if all three branches of government agreed, what could the government not do?You stated the Constitution doesn’t give the government power.
The Constitution gives three types of power to the national government:
1. DELEGATED (sometimes called enumerated or expressed) powers are specifically granted to the federal government in Article I, Section 8 of the Constitution. This includes the power to coin money, to regulate commerce, to declare war, to raise and maintain armed forces, and to establish a Post Office. In all, the Constitution delegates 27 powers specifically to the federal government.
2. IMPLIED POWERS are not specifically stated in the Constitution, but may be inferred from the elastic (or "necessary and proper") clause (Article I, Section 8). This provision gives Congress the right "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and other powers vested in the government of the United States." Since these powers are not explicit, the courts are often left to decide what constitutes an implied power.
3. INHERENT POWERS are not specifically listed in the Constitution, but they grow out of the very existence of the national government. For example, the United States has the power to acquire territory by exploration and/or occupancy, primarily because most governments in general claim that right.
Your argument is purely semantic. The writer says gives, when more correctly he/she means allocates. Ask yourself, if all three branches of government agreed, what could the government not do?
The government has the power. The Constitution defines how it is divided.
No, it means we already have the right, and the government cannot futz with it. Just as it should be.
Our government has power because of the Constitution, that is not semantics.
I suggest you read a terrific book called, "The Enigma of Clarence Thomas" by Corey Robin. Or for the Cliff Notes version, listen to the interview with him from On the Media, here: https://www.wnycstudios.org/podcasts/otm/episodes/on-the-media-2019-11-08All ya gotta do to understand him is understand he’s a dummy and has zero business sitting on that court.
Also, his wife is one craaaaaazy bitch.
In all the historical precedents that the Founders could look to - oligarchy, monarchy, military dictatorship, theocracy - this was the case. That is why they were trying something different, inspired by Locke and other Enlightenment philosophers.Power always resided in the king/state/government. Indivuduals only had priviledge.
That is exactly what the framers of the Constitution were doing. That's the American Experiment, the working of the process of forming a government from the bottom-up, in a land freed of the burdens of hereditary and religious rule.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.
The eternal tension between the aspirational and the realizable.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.
This is obviously wrong.Our government has power because of the Constitution, that is not semantics.
This is much closer. Every tinpot dictator has power within his realm, but legitimacy is much more difficult.I’d say it differently: any legitimacy the government has in the exercise of power arises from the Constitution. I wouldn’t concede all of the power it exercises has legitimacy.
A lot of its power comes from guns and the passive acceptance of the people.
The power still exists in the form of naked force. Law is always backed by the potential application of force. High justice precedes low justice.In all the historical precedents that the Founders could look to - oligarchy, monarchy, military dictatorship, theocracy - this was the case. That is why they were trying something different, inspired by Locke and other Enlightenment philosophers.
This sentiment in the Declaration of Independence, "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..." is echoed in the preamble of the Constitution, "We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
If the governed - the People - create and abolish their government, where does the power lie?
Thus, a social contract to shape and limit the threat and use of force. As diz pointed out, it gives the use of force legitimacy.That is exactly what the framers of the Constitution were doing. That's the American Experiment, the working of the process of forming a government from the bottom-up, in a land freed of the burdens of hereditary and religious rule.
The People's representatives wrote the Constitution, which lays out how the government is supposed to work.
The eternal tension between the aspirational and the realizable.
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 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.
You are wasting your time. He doesn't get it ; is not gonna' get it; and frankly doesn't seem to want to get it.That is exactly what the framers of the Constitution were doing. That's the American Experiment, the working of the process of forming a government from the bottom-up, in a land freed of the burdens of hereditary and religious rule.
The People's representatives wrote the Constitution, which lays out how the government is supposed to work.
This is 100% backward. Power always resided in the king/state/government. Indivuduals only had priviledge.
Agreed, law is always backed by the potential application of force. But the power to create or dismantle government in the United States does not reside in naked force. In our system, the People can overthrow the government with voice and pen. We just have to have enough people on board to call a Constitutional Convention, and then we can rewrite what we want, if we really think we can do better.The power still exists in the form of naked force. Law is always backed by the potential application of force. High justice precedes low justice.
No. You are wrong in your interpretation. The FF wrote a document that establishes what rights citizens have and what rights the government has.You seem to be caught up in the philosophy and not the law. I understand that some of the founders thought as you do. That rights new naturally blessed upon the people by the creator, etc etc and governments were instituted among men to preserve those rights.
As a practical legal matter this doesn’t help provide much with respect to the specific nature and boundaries of our rights. And history has shown that combined with judicial review it leaves us susceptible to 5 unelected super-legislators taking away or adding rights that were never intended by interpretation.
It seems you are skirting around the issue to infer that rights are granted by the government by saying it "recognizes rights." For example, the Government isn't infringing on speech that was never free speech to begin with. Not that it can infringe on speech when necessary.
Again, your saying that recognizing rights is practically the same as granting rights, which it isn't.
Until 2021, when Republicans began to endorse overthrowing democracy.But the power to create or dismantle government in the United States does not reside in naked force. In our system, the People can overthrow the government with voice and pen.
The Constitution talks about inalienable rights, or natural rights such as listed in the Bill of Rights. Inalienable rights are not privileges granted by the government.
And then there are the powers not fitting any of the above well, like the power to covertly attack and overthrow foreign governments, and the power to have the CIA use chemical weapons on Americans and non-Americans without their consent.The Constitution gives three types of power to the national government:
1. DELEGATED (sometimes called enumerated or expressed) powers are specifically granted to the federal government in Article I, Section 8 of the Constitution. This includes the power to coin money, to regulate commerce, to declare war, to raise and maintain armed forces, and to establish a Post Office. In all, the Constitution delegates 27 powers specifically to the federal government.
2. IMPLIED POWERS are not specifically stated in the Constitution, but may be inferred from the elastic (or "necessary and proper") clause (Article I, Section 8). This provision gives Congress the right "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and other powers vested in the government of the United States." Since these powers are not explicit, the courts are often left to decide what constitutes an implied power.
3. INHERENT POWERS are not specifically listed in the Constitution, but they grow out of the very existence of the national government. For example, the United States has the power to acquire territory by exploration and/or occupancy, primarily because most governments in general claim that right.
The People's representatives wrote the Constitution, which lays out how the government is supposed to work.
Right. It all hinges on the willingness to abide by the rule of law.Until 2021, when Republicans began to endorse overthrowing democracy.
I don't think that's quite right. The authors of the constitution were less "the People's representatives", and more powerful people in the English system who agreed on wanting revolution and a new system. By the same token, any revolutionary or conqueror or other person who creates a new government could be called "the People's representative".lo
Right. It all hinges on the willingness to abide by the rule of law.
Apparently, the 'Continental Congress' was replaced by the 'Confederation Congress', but I'll say I'm not that familiar with how they were selected, including what percent of people voted for how many of them. I don't recall, for example, Franklin or Jefferson being elected to anything at the time. But we had had the 'Articles of Confederation' government with some elections I assume.Members of continental Congress were either directly elected by the people or appointed by the colonial government. Of course, who was able to vote was quite restricted.
That's the Declaration.The Constitution talks about inalienable rights, or natural rights such as listed in the Bill of Rights. Inalienable rights are not privileges granted by the government.
This is not quite right, because the power is always ultimately from potential violence. However, you seem to mean the social contract that the Constitution represents. That ability to adapt, through an internal process, is what set the US Constitution apart from comparable documents of the same era. Hence the term living document.Agreed, law is always backed by the potential application of force. But the power to create or dismantle government in the United States does not reside in naked force. In our system, the People can overthrow the government with voice and pen. We just have to have enough people on board to call a Constitutional Convention, and then we can rewrite what we want, if we really think we can do better.
It's worth remarking that the Continental Congress is the source for the design of the Senate.Members of continental Congress were either directly elected by the people or appointed by the colonial government. Of course, who was able to vote was quite restricted.
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