Constitutional basic issue, for the right especially

[US&THEM]

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 stated the Constitution doesn’t give the government power.

The Founders and Federalism [ushistory.org]

www.ushistory.org

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.

 

[ttwtt78640]

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?

You missed the part where federal powers (and/or prohibitions) are left to the several states or to the people. Where the confusion arises is largely due to the concept of BoR incorporation where “congress shall pass no law to” (suddenly?) became “no government shall pass a law to”.

One other area of concern is that many act as if anything passed by congress (or created by EO/EA) should (must?) become by default a new federal government power. For example, education is not listed (enumerated?) as a federal government power, but has resulted in a cabinet level federal department. Clearly, that violates any pretext of having limited (specific?) federal government powers which can be expanded (endlessly?) without need of constitutional amendment.[/I]

 

[Jay59]

You stated the Constitution doesn’t give the government power.

The Founders and Federalism [ushistory.org]

www.ushistory.org

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.

 

[US&THEM]

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.

Our government has power because of the Constitution, that is not semantics.

 

[diz]

No, it means we already have the right, and the government cannot futz with it. Just as it should be.

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.

 

[diz]

Our government has power because of the Constitution, that is not semantics.

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.

 

[LostInSeattle]

All 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.

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-2019-11-08

His opinions follow a super interesting internal logic, one that is pretty effed up in my opinion and is another example of how racism and the American experience of black people can twist minds. He is no Thurgood Marshall but he is no dummy.

 

[LostInSeattle]

Power always resided in the king/state/government. Indivuduals only had priviledge.

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?

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.

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.

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.

The eternal tension between the aspirational and the realizable.

 

[Jay59]

Our government has power because of the Constitution, that is not semantics.

This is obviously wrong.

Even without the Constitution, there would still be an Army and police, or at least weapons and the will to use them. The Constitution is what limits the Army to foreign soil and requires the police to get warrants. Their power does not spring from the Constitution, but the limits do.

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.

This is much closer. Every tinpot dictator has power within his realm, but legitimacy is much more difficult.

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?

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.

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.

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.

 

[Linuxcooldude]

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 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.

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.

Again, your saying that recognizing rights is practically the same as granting rights, which it isn't.

 

[Buckeyes85]

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.

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.

 

[Linuxcooldude]

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

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.

 

[LostInSeattle]

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.

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.

 

[smallvoice]

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.

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 are incorrect that we are "susceptible to 5 unelected super-legislators". Liberals look upon the SC as legislators. They are nothing but interpreters, sometimes getting it wrong, like Roe V, Wade, but we have a mechanism to fix those situations, if we want.

 

[Craig234]

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.

It seems you are skirting, just because it's fun to post a silly attack like that apparently. The government recognizes rights in the Bill of Rights. See its name.

Again, your saying that recognizing rights is practically the same as granting rights, which it isn't.

I said in practical terms, it is, which it is. Whether a government limits itself from infringing free speech because it thinks it's granting that right, or because it's not infringing that right people already have, practically it's basically identical. The practical thing is that it creates rules limiting its infringement on free speech - or doesn't.

What would you prefer - a government that said it was 'granting' the right to free speech and observed the right, or a government that said it understood people naturally had a right to free speech, but it felt the need to violate it, and did so?

I think most people are more concerned with the practical issue than the theory about natural rights, not that they don't care about both.

 

[Craig234]

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.

Until 2021, when Republicans began to endorse overthrowing democracy.

 

[Craig234]

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 yet, who is deciding what inalienable rights there are? Oh look, it's the government.

 

[Craig234]

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.

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.

 

[Craig234]

The People's representatives wrote the Constitution, which lays out how the government is supposed to work.

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".

 

[LostInSeattle]

Until 2021, when Republicans began to endorse overthrowing democracy.

Right. It all hinges on the willingness to abide by the rule of law.

 

[LostInSeattle]

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

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.

 

[Craig234]

Right. It all hinges on the willingness to abide by the rule of law.

No, they're perfectly capable of changing the law to remove democracy, and abiding by that rule of law. It has to with supporting democracy.

 

[LostInSeattle]

Republicans can’t change the constitution without a whole lot of non-Republicans agreeing to do so.

 

[Craig234]

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.

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.

But it's long been said that the citizens were about 1/3 supporters of the revolution, 1/3 opponents (loyalists), and 1/3 neither.

So it's not so easy to think of them as 'representatives of the people' but rather as revolutionaries, however much they felt they were designing a better system for the people as revolutionaries usually do.

But I'm open to more information on the topic. Of course, in hindsight they have nearly 100% support 'of the people', so they seem like representatives of the people.

 

[Jay59]

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.

That's the Declaration.

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.

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.

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.

It's worth remarking that the Continental Congress is the source for the design of the Senate.