I see your point about divining things from the penumbras of Amendments, but I do not agree that rights must be explicitly or even indirectly referenced in the Constitution in order for them to exist. As I said...
It seems your issue with the right to privacy isn't necessarily the concept itself but rather its improper utilization. Just because the concept is abused or distorted by the judiciary does not mean the concept itself is invalid. Individuals do have a right to privacy, how far that right extends is another matter entirely.
If there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from infringment?
a-68-05.doc.html
2. In attempting to discern the substantive rights that are "fundamental" under Article I, Paragraph 1, of the State Constitution, the Court has followed the general standard adopted by the United States Supreme Court in construing the Due Process Clause of the Fourteenth Amendment.
- First, the asserted fundamental liberty interest must be clearly identified. In this case, the identified right is the right of same-sex couples to marry.
- Second, the liberty interest in same-sex marriage must be objectively and deeply rooted in the traditions, history, and conscience of the people of this State
- (pp. 21-25).
While the Constitution itself restrains only the government, theoretically leaving private individuals to assault on another without limit, we can observe the rights which the Constitution presumes to exist and further demonstrate how these rights are protected from infringement by private individuals.
While it is entirely appropriate to look to the Constitution when determining which rights it presumes to exist, we can not look to the Constitution for a direct restraint imposed on a private individual; Restraining private individuals was not the Constitution’s function.
While American culture views the right of personal safety through the Christian notion of Natural Law, generally speaking many different societies world-wide hold that the right of personal safety exists in every individual inherently. That is to say that the right of personal safety is not believed to be an external entity conferred, but an internal attribute expressed.
If the right of personal safety is observed as internal, then the right of personal safety is not something the Constitution would grant, but something the Constitution would presume to already exist and further move to protect.
In its restraint of the government, we can observe the Constitution presuming the right to personal safety existing in the following examples:
Please note that the 2nd amendment does not establish a right to bear arms.
The second amendment presumes that the right to keep and bear arms exists and then moves to prevent the government from infringing upon it. Nowhere in the Constitution is this right generated, yet it exists.
Here again we see that the Constitution presumes that the right to be secure in your person exists as it moves to restrain government from infringing upon it, yet nowhere in the Constitution is this right generated. Various codified laws further move to protect your right to be secure in your person from private individuals, and like the Constitution, these codified laws do not generate the right, but presume it already exists.
This code demonstrates a pre-existing right observed; that one has the right to apply for or enjoy the employment of a private individual free from threats of force or actual attempts of violence.
I hope these are sufficient examples. Please let me know how you would like to discuss this further.
If there is a claim of a fundamental right which cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from infringment?
I don't think that the court can without engaging in a constitutionally dangerous game of peering into the shadows eminating from the first eight amendments.
The court's divination of a privacy right didn't need the Ninth as a basis for such a right. The Griswold Court found such a right from the first eight rendering the 9th unnecessary. Hence, if you cannot find a right in the first eight, the ninth doesn't all-of-a-sudden make it appear.
Not really. My issue involves the divination of such a right from the first eight amendments. This is a reflection of the danger I just noted above. Hence, my problem ain't the abuse of such a right by the Courts, but the abuse of the Court's power to divine such a right in the first place.
Yes, but people do have the right to not speak. They do not have to tell how they voted. Even if badgered by an employer. They can simply say "Mind your own ****ing business". Any thing else is trampling on the employers rights. Consider if you hired someone to clean your house and pay them minimum wage. They tell you they voted to increase the minimum wage. Why should you not be able to fire them?
They did nothing wrong.
An employer can terminate an employee for "no reason".
However, if the employer does select a reason, that reason must be legal.
In addition, an employee terminated for "no reason" would likely qualify to draw off of the employer's unemployment insurance to help compensate for the no-fault loss of income. This shows us that the employer cannot simply cut someone loose on a whim and be free and clear of any financial responsibility for doing so.
I don't think anyone is contesting the status of the current law. I realize that technically it's illegal to fire somebody for those reasons. What I'm saying is that it's unconstitutional. An employer should be able to fire anyone for any reason they see fit without fear of legal recourse. Obviously, if there are contractual aspects of the firing then it puts a different complexion on the matter, but you get my meaning.
What part of the constitution does the law violate?
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
-US Constitution, Fifth Amendment.
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
-US Constitution, Ninth Amendment.
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
-US Constitution, Fourteenth Amendment, Section 1.
The Ninth Amendment speaks for itself but in the Fifth and Fourteenth Amendments the principle of private property rights are explicitly affirmed. It is given unique consideration due to its placement alongside the rights of life and liberty. These three rights are the foundation of natural rights and of the Constitution, and should be afforded the utmost respect and protection. A person's business is their property just the same as their home.
So long as the operation of that business does not infringe on the rights of others they may do with it as they see fit. A person does not have the right or authority to compel a business owner to retain their services. It's my money, it's my property, and I will dispense with both however I please.
Who I am and who you are is irrelevant to the indifferent facts of the mater.Honestly, who are you to tell me otherwise?
Your right to be secure in your property exists and is valid, but does not exceed your employee's right to vote their conscience and be free from discrimination.
You are correct in that such laws protecting employees from summery dismissal does infringe on the absolute concept you assert. What I need you to understand is your right to be secure in your property is not in fact absolute.
This applies even to your own home.
Who I am and who you are is irrelevant to the indifferent facts of the mater.
Although voting one's conscience is indeed a valid right - unlike the right to be free from discrimination - a private property owner exercising their right to hire and fire whom they wish in no way violates or infringes upon that right. Simply because a person was fired does not mean they were denied the ability or opportunity to exercise their right of voting for whom they please.
As for a right not to be discriminated against, well, it simply doesn't exist. "Discrimination" is the exercise of choice or discernment by an individual, the basis for that "discrimination" is irrelevant. Saying that someone has a right not to be discriminated against implies the inability of other individuals to exercise choice or discernment. You cannot compel a person to forfeit their ability to discern and choose.
Discrimination happens every day in a multitude of varying degrees and ways. When I refuse to go on a date with an unattractive woman I am discriminating against her on the basis that she is ugly. She has no right to forcibly submit me to her unpleasant appearance anymore than I have a right to forcibly submit her to my tiny penis. Discrimination is a fact of life and there is no right to be free of it.
I've always understood that rights are not absolute. Putting someone in prison is a violation of one's rights, but I would never claim that imprisonment is inherently unconstitutional. One may forfeit their rights, but only when they've conceivably violated the rights of others, that's what laws are supposed to do, uphold the Constitution.
In your scenario no rights have been violated, thus anti-discrimination laws are unconstitutional since they serve no relevant purpose in upholding or protecting an individual's rights.
Not "you" specifically, although the question does apply tangentially to "you". I should have been more specific.
Who are "you" (anti-discrimination law proponents) to tell "me" (private business owners) otherwise?
It's like that one song...
Who are you?
Who, who, who, who?
Who are you?
Who, who, who, who?
Who are you?
You probably though Roger Daltrey was talking specifically to you… ego maniac! :mrgreen:
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