For Constitutionalists Only!

[goldcatt]

I wasn't referring to the Civil Rights Act of 1964. You are 100+ years late with that reference. I was referring to the free slaves. Due process was about them. That was the purpose. The debate and legislative intent records make it very clear. The courts have bastardized the real meaning and purpose of the XIV Amendment. And in doing so, they have ceded power to themselves, that was not theirs to have, in my opinion.

The slaves weren't freed by the 14th Amendment. The 13th contains no due process provision. There were practices other than slavery happening in the States that needed to be addressed, although slavery was the tipping point that made the 14th's provisions possible and more obviously necessary. What is the point of having Federal guarantees of individual liberites if the States could simply take them away at will and with impunity?

The Constitution does not give us our rights, in my opinion. In my opinion, the Constitution was written primarily to restrict the powers of the federal government not the states. There were freed slaves in 1867, 68, and 69. I didn't say anything about there being no slavery at all at the time the XIV Amendment was ratified. It was, as I said, put forth to address the issue of race and the forbiddance of the federal government from discriminating based on such. And the primary focus was the slaves. More succinctly, those who were free at the time and taking issue with the federal government.

Then why do the First, Second, Fourth, Fifth, Sixth, Seventh and Ninth Amendments (remind me if I forgot any) use the word "rights"?

And if not "rights", then what exactly are "privileges and immunities" of the United States?

 

[BasicGreatGuy]

The slaves weren't freed by the 14th Amendment. The 13th contains no due process provision. There were practices other than slavery happening in the States that needed to be addressed, although slavery was the tipping point that made the 14th's provisions possible and more obviously necessary. What is the point of having Federal guarantees of individual liberites if the States could simply take them away at will and with impunity?

The Constitution does not give us our rights, in my opinion. In my opinion, the Constitution was written primarily to restrict the powers of the federal government not the states. There were freed slaves in 1867, 68, and 69. I didn't say anything about there being no slavery at all at the time the XIV Amendment was ratified. It was, as I said, put forth to address the issue of race and the forbiddance of the federal government from discriminating based on such. And the primary focus was the slaves. More succinctly, those who were free at the time and taking issue with the federal government.

Then why do the First, Second, Fourth, Fifth, Sixth, Seventh and Ninth Amendments (remind me if I forgot any) use the word "rights"?

And if not "rights", then what exactly are "privileges and immunities" of the United States?

Where do you get the notion that the federal government gives us our rights? You won't read that viewpoint from the founding fathers.

 

[BolshevikHunter]

I hear yuh brother. All I have seen is The Federal Government gradually eradicate our Rights. ~BH

 

[BasicGreatGuy]

I hear yuh brother. All I have seen is The Federal Government gradually eradicate our Rights. ~BH

I agree BH. And as a whole, the American people keep asking for bigger diapers.

 

[BolshevikHunter]

I hear yuh brother. All I have seen is The Federal Government gradually eradicate our Rights. ~BH

I agree BH. And as a whole, the American people keep asking for bigger diapers.

LOL!!! Yeah, You can say that again bro. ~BH

 

[Oddball]

His Dudeness was here......Again.

 

[goldcatt]

The Constitution does not give us our rights, in my opinion. In my opinion, the Constitution was written primarily to restrict the powers of the federal government not the states. There were freed slaves in 1867, 68, and 69. I didn't say anything about there being no slavery at all at the time the XIV Amendment was ratified. It was, as I said, put forth to address the issue of race and the forbiddance of the federal government from discriminating based on such. And the primary focus was the slaves. More succinctly, those who were free at the time and taking issue with the federal government.

Then why do the First, Second, Fourth, Fifth, Sixth, Seventh and Ninth Amendments (remind me if I forgot any) use the word "rights"?

And if not "rights", then what exactly are "privileges and immunities" of the United States?

Where do you get the notion that the federal government gives us our rights? You won't read that viewpoint from the founding fathers.

I get the notion from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Amendments which explicitly and specifically state they are granting or reserving "rights" to the People.

And you still haven't answered the question re: the definition of "privileges and immunities" of the Unites States in regard to the 14th.

That's OK, I'll wait.

 

[JBeukema]

Where do you get the notion that the federal government gives us our rights? You won't read that viewpoint from the founding fathers.

I get the notion from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Amendments which explicitly and specifically state they are granting or reserving "rights" to the People.

Um.. none of those amendments say that... they say these rights shall not be infringed.

 

[goldcatt]

Where do you get the notion that the federal government gives us our rights? You won't read that viewpoint from the founding fathers.

I get the notion from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Amendments which explicitly and specifically state they are granting or reserving "rights" to the People.

Um.. none of those amendments say that... they say these rights shall not be infringed.

The Second uses that language. The Ninth "reserves" unenumerated rights to the people. The Fourth explicitly states the "right" of the people to a whole list of things shall not be violated. The Sixth states the accused "shall enjoy" certain rights. The Seventh does not use the word "right", but refers to a long-standing common law right in accordance with the Framers' familiarity with and reliance on the dominant legal system of the time.

In other words, rights are granted, retained or affirmatively protected in these Amendments (and I'm sure I missed some others). How, in a legal sense, is that not the grant of a right to the people by th egovernment listing and protecting those rights? What do you consider a "right"? You have an interesting interpretation, but a very narrow one.

 

[editec]

I wasn't referring to the Civil Rights Act of 1964. You are 100+ years late with that reference. I was referring to the free slaves. Due process was about them. That was the purpose. The debate and legislative intent records make it very clear. The courts have bastardized the real meaning and purpose of the XIV Amendment. And in doing so, they have ceded power to themselves, that was not theirs to have, in my opinion.

why do you think that each provision is only intended to address one specific problem?

it was clear, always, that no state could grant fewer constitutional protections than the federal constitution... or else the INTENT of the provision would be perverted by the states and was perverted by the states... with slavery... with jim crow laws.

and THAT is why the need for the amendment.

the constitution is not some fundamentalist bible... there are 200 years of constitutional construction which say so.....

Well that's exactly the problem, Jill.

These people truly do think that way.

They imagine that the floundering fathers bound the government and permanently answered each and every question every generation faced literally.

Why do they think that?

Because they are stupid.

Not their fault.

That's just how God made most of us.

 

[goldcatt]

I wasn't referring to the Civil Rights Act of 1964. You are 100+ years late with that reference. I was referring to the free slaves. Due process was about them. That was the purpose. The debate and legislative intent records make it very clear. The courts have bastardized the real meaning and purpose of the XIV Amendment. And in doing so, they have ceded power to themselves, that was not theirs to have, in my opinion.

why do you think that each provision is only intended to address one specific problem?

it was clear, always, that no state could grant fewer constitutional protections than the federal constitution... or else the INTENT of the provision would be perverted by the states and was perverted by the states... with slavery... with jim crow laws.

and THAT is why the need for the amendment.

the constitution is not some fundamentalist bible... there are 200 years of constitutional construction which say so.....

Well that's exactly the problem, Jill.

These people truly do think that way.

They imagine that the floundering fathers bound the government and permanently answered each and every question every generation faced literally.

Why do they think that?

Because they are stupid.

Not their fault.

That's just how God made most of us.

Nah, they're not stupid. If they were stupid I wouldn't waste so much time arguing with them. They have a very, very narrow reading of a document that speaks in broad terms, but there's room in the language for all kinds of arguments. Which (I thought anyway) was the whole point of the thread from the beginning - making those arguments.
Of course, on this thread I've broken the first rule of political debate: Never attempt to argue the Constitution with a Libertarian without a bottle of excedrin handy!

 

[jillian]

why do you think that each provision is only intended to address one specific problem?

it was clear, always, that no state could grant fewer constitutional protections than the federal constitution... or else the INTENT of the provision would be perverted by the states and was perverted by the states... with slavery... with jim crow laws.

and THAT is why the need for the amendment.

the constitution is not some fundamentalist bible... there are 200 years of constitutional construction which say so.....

Well that's exactly the problem, Jill.

These people truly do think that way.

They imagine that the floundering fathers bound the government and permanently answered each and every question every generation faced literally.

Why do they think that?

Because they are stupid.

Not their fault.

That's just how God made most of us.

Nah, they're not stupid. If they were stupid I wouldn't waste so much time arguing with them. They have a very, very narrow reading of a document that speaks in broad terms, but there's room in the language for all kinds of arguments. Which (I thought anyway) was the whole point of the thread from the beginning - making those arguments.
Of course, on this thread I've broken the first rule of political debate: Never attempt to argue the Constitution with a Libertarian without a bottle of excedrin handy!

my problem with it is that i think they speak about the constitution in a vacuum. they don't understand the relationship between the document and caselaw and the fact of our being a common law country. they don't understand stare decisis and refuse to acknowledge it. they also refuse to understand that the opinion of one of the politicians of the day as to the meaning of something, is not binding and is only guidence.

so i think it's not so much stupidity... i think it is intentional refusal to learn what constitutional construction is because they don't like the result. there was actually one poster here who said that the court has botched it's job for 200 years because HE knows what the constitution means.

my feeling is that if it were that easy, we wouldn't need constitutional scholars. it's like when the "constitutionalists" were shrieking about Justice Sotomayor's decision on the fire department case getting reversed ... the supreme court decision was 5 to 4 and most people understand that there are no easy answers and i doubt if any of the justices on the supreme court would argue that there is only ONE answer to every question.

so i don't think it's stupidity...

i think it's arrogance.

and if you notice... none of them ever rely on caselaw. they just list section after section of the constitution and what THEY say it means. but the court has ALREADY decided what things mean in many instances... that's why there' s 200 years of caselaw.

 

[Kevin_Kennedy]

I get the notion from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Amendments which explicitly and specifically state they are granting or reserving "rights" to the People.

Um.. none of those amendments say that... they say these rights shall not be infringed.

The Second uses that language. The Ninth "reserves" unenumerated rights to the people. The Fourth explicitly states the "right" of the people to a whole list of things shall not be violated. The Sixth states the accused "shall enjoy" certain rights. The Seventh does not use the word "right", but refers to a long-standing common law right in accordance with the Framers' familiarity with and reliance on the dominant legal system of the time.

In other words, rights are granted, retained or affirmatively protected in these Amendments (and I'm sure I missed some others). How, in a legal sense, is that not the grant of a right to the people by th egovernment listing and protecting those rights? What do you consider a "right"? You have an interesting interpretation, but a very narrow one.

The rights in the Bill of Rights were assumed to be natural rights and that the government did not have the right to infringe upon them. The Bill of Rights doesn't give us our rights, it simply defends the rights them from the government.

 

[goldcatt]

Well that's exactly the problem, Jill.

These people truly do think that way.

They imagine that the floundering fathers bound the government and permanently answered each and every question every generation faced literally.

Why do they think that?

Because they are stupid.

Not their fault.

That's just how God made most of us.

Nah, they're not stupid. If they were stupid I wouldn't waste so much time arguing with them. They have a very, very narrow reading of a document that speaks in broad terms, but there's room in the language for all kinds of arguments. Which (I thought anyway) was the whole point of the thread from the beginning - making those arguments.
Of course, on this thread I've broken the first rule of political debate: Never attempt to argue the Constitution with a Libertarian without a bottle of excedrin handy!

my problem with it is that i think they speak about the constitution in a vacuum. they don't understand the relationship between the document and caselaw and the fact of our being a common law country. they don't understand stare decisis and refuse to acknowledge it. they also refuse to understand that the opinion of one of the politicians of the day as to the meaning of something, is not binding and is only guidence.

so i think it's not so much stupidity... i think it is intentional refusal to learn what constitutional construction is because they don't like the result. there was actually one poster here who said that the court has botched it's job for 200 years because HE knows what the constitution means.

my feeling is that if it were that easy, we wouldn't need constitutional scholars. it's like when the "constitutionalists" were shrieking about Justice Sotomayor's decision on the fire department case getting reversed ... the supreme court decision was 5 to 4 and most people understand that there are no easy answers and i doubt if any of the justices on the supreme court would argue that there is only ONE answer to every question.

so i don't think it's stupidity...

i think it's arrogance.

and if you notice... none of them ever rely on caselaw. they just list section after section of the constitution and what THEY say it means. but the court has ALREADY decided what things mean in many instances... that's why there' s 200 years of caselaw.

They do read the Constitution in a vaccum, relying solely on secondary sources, because they do not (based on their extremely narrow reading) accept the courts' constitutional power to interpret the COTUS. Instead, they rely on historical secondary sources representing one point of view among the many that went into building what we now know as the constitution. It's both selective and narrow, far too narrow really, but my point was it's a reasoned if flawed argument and not "stupid".

 

[goldcatt]

Um.. none of those amendments say that... they say these rights shall not be infringed.

The Second uses that language. The Ninth "reserves" unenumerated rights to the people. The Fourth explicitly states the "right" of the people to a whole list of things shall not be violated. The Sixth states the accused "shall enjoy" certain rights. The Seventh does not use the word "right", but refers to a long-standing common law right in accordance with the Framers' familiarity with and reliance on the dominant legal system of the time.

In other words, rights are granted, retained or affirmatively protected in these Amendments (and I'm sure I missed some others). How, in a legal sense, is that not the grant of a right to the people by th egovernment listing and protecting those rights? What do you consider a "right"? You have an interesting interpretation, but a very narrow one.

The rights in the Bill of Rights were assumed to be natural rights and that the government did not have the right to infringe upon them. The Bill of Rights doesn't give us our rights, it simply defends the rights them from the government.

Natural law theory? That was an interesting fad for a time in the 19th century, but thoroughly discredited long ago.

By asserting this, you ignore the real function of the document completely - which is to lay out the balance between the various powers that make up the Republic. If you go back and read the entire document again, not just cherrypicking clause by clause but for a look at the design of the whole, you should see the People are considered an integral part of the government and the balance of power. Definition and affirmative protection of certain rights of the People is part of that design.

 

[goldcatt]

I've gotta run and feed some little monkeys, but I'll be back.

 

[Kevin_Kennedy]

The Second uses that language. The Ninth "reserves" unenumerated rights to the people. The Fourth explicitly states the "right" of the people to a whole list of things shall not be violated. The Sixth states the accused "shall enjoy" certain rights. The Seventh does not use the word "right", but refers to a long-standing common law right in accordance with the Framers' familiarity with and reliance on the dominant legal system of the time.

In other words, rights are granted, retained or affirmatively protected in these Amendments (and I'm sure I missed some others). How, in a legal sense, is that not the grant of a right to the people by th egovernment listing and protecting those rights? What do you consider a "right"? You have an interesting interpretation, but a very narrow one.

The rights in the Bill of Rights were assumed to be natural rights and that the government did not have the right to infringe upon them. The Bill of Rights doesn't give us our rights, it simply defends the rights them from the government.

Natural law theory? That was an interesting fad for a time in the 19th century, but thoroughly discredited long ago.

By asserting this, you ignore the real function of the document completely - which is to lay out the balance between the various powers that make up the Republic. If you go back and read the entire document again, not just cherrypicking clause by clause but for a look at the design of the whole, you should see the People are considered an integral part of the government and the balance of power. Definition and affirmative protection of certain rights of the People is part of that design.

Discredited by who?

The purpose of the Constitution is to set up a system of governance, and to spell out its powers and role. The Bill of Rights was added to the Constitution to protect the inherent rights of the individual that it was believed no government had the right to infringe upon.

 

[JBeukema]

I get the notion from the First, Second, Fourth, Fifth, Sixth, Seventh, and Ninth Amendments which explicitly and specifically state they are granting or reserving "rights" to the People.

Um.. none of those amendments say that... they say these rights shall not be infringed.

The Second uses that language. The Ninth "reserves" unenumerated rights to the people. The Fourth explicitly states the "right" of the people to a whole list of things shall not be violated. The Sixth states the accused "shall enjoy" certain rights. The Seventh does not use the word "right", but refers to a long-standing common law right in accordance with the Framers' familiarity with and reliance on the dominant legal system of the time.

In other words, rights are granted, retained or affirmatively protected in these Amendments (and I'm sure I missed some others).

Which one of those says 'the right to ___ is hereby granted'?

Rights are not given. The Ninth amendment makes this clear. If right were given by the government, then only those rights enumerated or clearly derived would be granted. Amanedment Nine makes it clear that this is not the case. Man is assumed to have natural rights(your opinion ion this subject does not matter. It is not a philosophical discussion. The law is based on this assumption). Man's rights and liberties may not be infringed or restricted except as the law permits.

The law is restricts rights, it does not grant them, just as it grants authority to the central government, it does not restrict it (only those powers granted are are given, as opposed to the state having unlimited authority save for restrictions imposed.

These are very simple matters and crucial to any meaningful understanding of the Constitution, the law, or the nation of the Founding Fathers

 

[JBeukema]

Man has all liberties and rights not denied or restricted under the law (this is why the law, esp. criminal law, is oft built around one's rights 'ending at another's nose'; the law restricts any right to infringe upon the rights of another)

The government has no authorities aside from those granted under the law

It's not that complicated...

 

[goldcatt]

The rights in the Bill of Rights were assumed to be natural rights and that the government did not have the right to infringe upon them. The Bill of Rights doesn't give us our rights, it simply defends the rights them from the government.

Natural law theory? That was an interesting fad for a time in the 19th century, but thoroughly discredited long ago.

By asserting this, you ignore the real function of the document completely - which is to lay out the balance between the various powers that make up the Republic. If you go back and read the entire document again, not just cherrypicking clause by clause but for a look at the design of the whole, you should see the People are considered an integral part of the government and the balance of power. Definition and affirmative protection of certain rights of the People is part of that design.

Discredited by who?

The purpose of the Constitution is to set up a system of governance, and to spell out its powers and role. The Bill of Rights was added to the Constitution to protect the inherent rights of the individual that it was believed no government had the right to infringe upon.

So more than 200 years of Constitutional experts are wrong, and only you are correct? Jillian's right, that is an arrogant point of view. And since it begins from the flawed premise of completely ignoring the reality of 200 years + of very real constitutional jurisprudence, it is a wrong one.