Can a Constitution Destroy Our Rights?

[Murf76]

Yes caselaw can be overturned. It is not done often though.... certainly who sits on the court matters philosophically. I think we all know that. And each "side" things the judges on the other "side" are activits.

WHY should it be okay for Supreme Court Justices to take "sides" or act as "activists". Doesn't it stand to reason that we should ALL reject that mindset, given that politically, the power in Washington is bound to pass back and forth between party ideologies like a drunk girl at a frat party?

It's been a while since I read Marbury. But I hae no recollection of it standing for the proposition of any particular size government. In fact, that issue, if addressed at all, would have been dicta and without precedential value. The proposition Marbury stood for was that the Court is the final arbiter of what is constitutional.

Here's are a couple of exerpts. Read the whole thing at the link though for an interesting commentary on the political motives of the executive and legislative branches:

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

<snip>


If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written constitution -- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

(more...)

Our Documents - Transcript of Marbury v. Madison (1803)

 

[ihopehefails]

No one ever considers if the law gets shaped incorrectly and assumes that whatever shape it is in at any given moment in history is correct. This implies that any shape, any meaning, and any form is the correct form.

speak for yourself. i dont think that any of these assumptions are common. we ignore, skirt or break laws on the basis of the opposite: that people think the law is often bs.
we vote to change them, or the officials who enact them.

This could be correct but if so what would be the point of writing anything at all. Wouldn't it been more efficient for the writers of the constitution just to sign blank parchments and let the the living document grow over time to take whatever shape it wants.

no. instead you write article 5.

Those who wrote the constitution wrote precise words with static meanings that were meant to embody the meaning of the constitution. The meaning of those words shaped the constitution into something that the signers would want because another constitution, known as the articles of confederation, was rejected based on the meaning the words conveyed to them. They chose the current constitution based on its meaning not on what it might mean someday in the future. This makes the constitution a static document.

the commerce clause and the tax/spend clause are precisely worded to you?

the constitution charters a form of democracy, by no means was it intended to be a paper dictator.

Any yes, legal documents do get interpreted differently over time but this is done mainly because of human error and the living constitution theory seems to imply that all interpretations are correct which can't be true.

this is a strange extraction youve made that people would or could believe that anyone's mandate, even the constitution, is 'correct'. perhaps this is why youre on the founder's nuts with the presumed correct application of the constitution, however, i think that the document charters a mechanism which applies contemporary thought to lawmaking and judicial review. through this mechanism, there is considerably more consensus mandate for it at its ratification and over time.

The commerce clause was created not to control businesses but to regulate commerce because one of the problems with the articles of confederation was that the each state, federal government, and indian tribes were creating different trade policies which was making commerce (the act of trading with someone else) within the United States impossible so they created the commerce clause to regulate commerce or to normalize it between within the United States.

If that is not true then what other section in the constitution fixes that problem? Why would they mention these three entities specifically. Why would they want to control the trinkets, jewelry, and gambling joints of the Indian tribes?

General Welfare? Really? The writers of the constitution never intended for that to be used as a do all and do everything under the sun or why else would they list the things the congress can do when all they needed was the general welfare to do those same things? Wouldn't that seem a little redundant and a waste of time to write those.

 

[antagon]

what makes you think that the founders were trying to be frugal with their time or words. maybe that there is some opportunity to interpret the strength of the welfare clause/declaration was intended, as was the specific direction to address concerns which they'd enumerated. these concerns to include indian nations, which were of more consequence than the boxing and fireworks joints we've reduced them to since. its poignant that you make an argument for the way the constitution was aimed at addressing contemporary concerns of the late 18th. do you really mean that it should be interpreted as powerless to address today's demands?

 

[del]

Since a government can deny us the recognition of our rights and freedoms, our Constitution is said to be the instrument of our freedoms by setting careful boundaries for our government to prevent it from denying the recognition of our rights.

Granted, our government pays very little attention to our Constitution, but . . .

actually it restains governments interference in our INDIVIDUAL liberties...

ACTUALLY, I just said that, but thank you so much for brilliantly repeating and reiterating my words for us all.



No, I don't know, nor am I interested in listening to you trying to shoehorn your partisan bullshit into this.



See above.



It always amuses me how dimwits like you can drag the government and society kicking and screaming into your private lives, and then disingenuously lecture everyone on "How dare you interfere?" I am even less interested in your ignorance-fueled hypocrisy than I am in your partisan hackery.

so yeah, the government's been remiss ...

but don't worry... it's getting better.

I can only assume "better" means "we're getting government to interfere in the rights WE want interfered with, because you people are too stupid to use them the way we think you should", since that's the position you and your tweeko compatriots always default to.

oh...and there ISN'T any such thing as "rights" except as political philosophy... except for what the government you HATE will enforce.

Exactly the sort of nonsensical, meaningless remark I've come to expect from the vast vacuum between your ears.

every morning when i wake up, i say a little prayer and thank god i'm not waking up next to you.

 

[NYcarbineer]

The constitution is said to be the instrument of our freedoms but how is this possible when most constitutions that are written state the functions of government such as deciding term limits for public officials, what is considered a majority, under what circumstances can money be spent, and other mundane boring things that have nothing to do with the personal lives of individual citizens.

Further, it is possible to write into any constitution something that would remove someone's rights just as it can have things that protect someone's rights (like the first amendment). This means a constitution can do great harm or do great good and makes the concept of a constitution neither a force for human rights or a force for tyranny but a lifeless legal document that states the rules that a government functions by.

Since a constitution is nothing more than a glorified charter for the government it must suggest that our rights do not come from a constitution since any action, including ones that might violate our rights, it can legally take would still be constitutionally legal for that government.

This means that a constitution does not embody our rights since free and unregulated people create constitutions that establishes a government so it is impossible for any constitution to grant any additional freedoms that the same people did not have before they created it.

Your rights come from the people who have the power to determine what your rights will be.

 

[antagon]

Well, give us the constitutional authority for an "individual mandate" and the government seizure of our medical records then. How exactly is it that these things don't "trespass its boundaries"?

well, first we'd need a law putting that authority in fed hands.

but ill play along... anything i heard or read about the obamacare prop makes the mandate tax-enforced, not criminal, silly. there's still a bit of freedom as proposed...

so your answer is in art.1.8 or the 16th amendment.

i dont know what you mean with the medical records thing.

We'd call that law... a Constitutional Amendment.

The "tax" argument doesn't wash. It's not an income tax. And it's not an excise tax; there's no transaction. This would be a direct tax without apportionment if anything at all. The TRUTH is... that it's a penalty, designed to force citizens into private insurance pools. And honest persons wouldn't equivocate about that.

there's still a bit of shaping in progress is my point. no amendment yet. all that makes addressing the legal details of a non-law... interesting bordering on moot.

if you ever get down and dirty with the tax code, youll find there's plenty of sticks and carrots in it already. i feel that there should be more, in fact. heavy on the carrot side. its better policy than regulation is from a business standpoint. in that sense, it is a component of income tax. file it under lost deductibility opportunities.

I have no idea how old you are, but it's young people who seem most supportive of this bill, most likely on the assumption that they'll all be subsidized. But... the rug gets pulled out from under them just as soon as they're actually making any cash in their careers. As soon as they start getting ahead, they'll find themselves subsidizing the babyboomers.

ive just turned 32. ya know, the generation raised without 80% tax brackets.

So I don't understand why young folks buy into this mess. Not only are they pushed into the insurance pool, will ye nill ye... they're economically enslaved by the burden of national debt. Do you honestly think we're going to come up with the equivalent of a new Porkulus package out-of-pocket ANNUALLY without huge tax burdens? Seriously, think about it. We're sending 700 billion overseas in energy costs, and Congress doing NOTHING to address it save slipping cash to their own cronies. We've got entitlement spending already chewing its way through our budget, and the plan is... make it worse?

i voted for clinton. there was a vision of conservatism then. i voted for bush and the contract which promised a BBA, however, with little opposition and a president who would veto hardly anything, the conservatives (republicans) delivered the biggest debt and deficit imaginable. this is the legacy of this low-tax environment you want me to laud. starting with reagan's second or third round of voodoo cuts, government solvency was nailed in the coffin.

In reference to medical records, btw. That's the Comparative Effectiveness Research that they slipped into the Porkulus bill. It requires our medical records to be databased by 2014 in a fairly transparent attempt to set the framework for a rationing system similar to Britain's HOPE system... although they most certainly deny it. Their claim is that electronic records make for less administrative costs, prevent medical mistakes, and allows for the effectiveness of various drugs and treatments to be categorized.

None of which makes sense, because we're asked to believe that the cost of creating, maintaining, and providing security contracts is less than paper and ink. We're asked to believe that an army of minimum-wage data entry clerks are more responsible than doctors making notes. And we're asked to believe that our most intimate information won't be used to regulate our choices.

since we will maintain a private health system, there wont be the sort of control over services and choices that the UK throws down. I welcome limitations to government funded care and oversight into what works or not for the buck.

I have no idea how old you are but it seems old folks seem to be frightened of anything being advanced into the computer age. i feel the 'boomers have worked well with technology, those who have contributed to our world to a greater degree than the slackers who are of age to join the brand; computerized record keeping will be one of the ways the costs of caring for them in convalescence will be moderated.

And this was done without a peep from Democrats, the self-same ones who routinely complain about the constitutionality of the Patriot Act. The most intimate workings of your body, available to whatever bureaucrat Congress wants to put in charge of it, is somehow not a violation of The Bill of Rights???

Now, how does THAT get past the 4th?... the 5th, 9th, or 10th for that matter? Today, a government official would need a WARRANT if they wanted a peek at your medical record. In 2014, they won't. How is this not a property rights issue? Whether one argues that a medical record is the property of the doctor or of the patient, the one thing is most assuredly is NOT... is the property of the U.S. government.

dont be scared, man. its not like that. nobody cares about your conditions, specifically. <-- thats what has always kept big bro at a distance.. not the law.

I see the constitution as a great thing that caused our nation's greatness. And I see the previous depredations upon it as currently causing our problems. Social Security is upside down THIS YEAR, not 2019 like they thought. The interest on our debt, without Obamacare factored in, will be 799 BILLION dollars annually in ten years time. So... exactly how "great" has all that social spending made us?

*snif* so i see youve opened a broader can of government than the constitution alone.

2019, now sooner, i think 2015 or something, is an allusion to the insolvency of the fund, not the year-on-year balance you must be referring to. social spending is among plenty that has improved the US, through the economy and society. it is expensive and appropriated more and differently than i care for for certain, or that i think is sustainable.

thats my point in this debate: that putting your foot down with the constitution wont prove as effective as cultivating government leadership and being or voting for people with a mind to affect the right formula for government within the constitution's framework.

by no means am i on board with every application of the powers of government, but hoping the constitution is going to champion political issues like obamacare is fruitless. take that tack, wait and see. its more about having an opposing view that is credible.

republican's credibility has been dashed by the bush era and campaigns like mccain's, all they might have to cling on in the obamacare example is the constitution. i digress to my point on the fruits of that tack. in november, we could see if theyve done their homework, or if theyre still mired in ignorant teabag-grade politics. we will see if they could bring some balance back into govt so as to demonstrate the real means by which government is shaped.

right now, the democrats have the run of the place and are working like they expect a '94 in november.

Social Security is eating INTO the fund. It wasn't supposed to do that until 2019, which means we're on track for insolvency much sooner than previously anticipated. Ed Morrissey has the charts and links:
Hot Air » Blog Archive » Social Security deficit slides to worst showing in a generation

I don't understand your comment about "not putting your foot down" though. It seems reflective of a type of political apathy which, while pervasive, doesn't serve our interest as Americans. 'We the People' are SOVEREIGN. They work for us, not the other way around. We have a guaranteed right to speak out that cannot be denied. We have a right to actual representation from our duly elected "representatives". "No taxation without representation", remember?

Barack Obama isn't a King. And this Congress isn't some sort of royal court that can issue random decrees. Every last one of them took a solemn oath to uphold our Constitution. For what reason should we be expected to sit around WAITING until we can elect a new King and a new royal court in the hopes that they'll somehow be different??

These people are NOT above the Law.

put your foot down voting and through other political action. there's limited standing and grounds to waving the constitution into such battles. more often then not i find people make the document out to be less valuable than it has proven to be over the years in the process.

the only people making obama out to be king are his opponents. in the US, the government takes a back seat to the money it prints. people come from all around the world to take advantage of that. so while it may seem like apathy, or WAITING, what i prescribe for changing how great (or miserable) my life is has got very little to do with obama. i vote (most of the time) and pay taxes (all of the time ).

from my vantage, my choice with obama is less revolting than the bush one. the healthcare thing wont affect me directly from what i can tell. i wish i had a 50+ employee business with em riding on cadillac care plans. those folks dont care about a little chink in the tax code, believe me.

 

[bodecea]

The constitution is said to be the instrument of our freedoms but how is this possible when most constitutions that are written state the functions of government such as deciding term limits for public officials, what is considered a majority, under what circumstances can money be spent, and other mundane boring things that have nothing to do with the personal lives of individual citizens.

Further, it is possible to write into any constitution something that would remove someone's rights just as it can have things that protect someone's rights (like the first amendment). This means a constitution can do great harm or do great good and makes the concept of a constitution neither a force for human rights or a force for tyranny but a lifeless legal document that states the rules that a government functions by.

Since a constitution is nothing more than a glorified charter for the government it must suggest that our rights do not come from a constitution since any action, including ones that might violate our rights, it can legally take would still be constitutionally legal for that government.

This means that a constitution does not embody our rights since free and unregulated people create constitutions that establishes a government so it is impossible for any constitution to grant any additional freedoms that the same people did not have before they created it.

You're just now figuring that out?