The Semantics of Constitutionality

[Rigby5]

The Supreme Court can't make law; it can only interpret law brought before it under judicial review, which is also not explicitly in the Constitution. It is the result of a court decision based on Article III, and Marshall's reading of the Federalist Papers. So again, you have to consider what's implied in addition to what is explicit, which can really be a most-of-the-iceberg-is-underwater kind of activity, but that's how it works.

The courts obviously have to be vastly superior to legislators as to what is actual law, since they have to be able to strike down any mere legislation that is contrary to basic legal authority. And basic legal authority comes only from the defense of inherent individual rights, not government.

 

[danielpalos]

Better contraception at lower cost to eschew any potential need for the abortion of a fellow human being!

 

[San Souci]

Promiscuity is necessary for normal biological balance.
The body makes you have sex just as it makes you eat or sleep.
If you refuse your body trying to force you to have sex, you may not die, but you may wish you had.

Nothing wrong with condoms and birth control, but they don't always work.
And things can change.
Abortion will always also be a necessary option.
And a fetus is no more sentient than a single sperm, which is also alive.

It is murder. And Promiscuity leads to the Clap ,Syphilis ,and AIDS.

 

[San Souci]

The courts obviously have to be vastly superior to legislators as to what is actual law, since they have to be able to strike down any mere legislation that is contrary to basic legal authority. And basic legal authority comes only from the defense of inherent individual rights, not government.

Where is infanticide a RIGHT?

 

[SavannahMann]

Where is infanticide a RIGHT?

The Second Amendment says you have the right to keep and bear arms. Where does it say you have a right to a semi automatic rifle? Could we limit that right to a single shot rifle? If not, why not?

 

[San Souci]

The Second Amendment says you have the right to keep and bear arms. Where does it say you have a right to a semi automatic rifle? Could we limit that right to a single shot rifle? If not, why not?

It does not say what KIND of "Arms". Therefore ,it could be anything from a musket to a 50 Megaton Nuke,

 

[SavannahMann]

It does not say what KIND of "Arms". Therefore ,it could be anything from a musket to a 50 Megaton Nuke,

So why can’t we limit it to a single shot rifle? Or just ban semi automatic?

People like to observe there are lots of alternatives to abortion. Birth control methods. So eliminating one isn’t a big deal. Especially when it isn’t specifically listed in the Constitution.

So let’s play. What kind of arms isn’t listed. While we have Supreme Court decisions. We reject those. They are merely creating rights aren’t they?

So if we ban semiautomatic rifles that leaves you single shot, bolt action, lever action, and pump action doesn’t it? Lots of options.

So using the original Constitution explain why that would be wrong.

 

[San Souci]

So why can’t we limit it to a single shot rifle? Or just ban semi automatic?

People like to observe there are lots of alternatives to abortion. Birth control methods. So eliminating one isn’t a big deal. Especially when it isn’t specifically listed in the Constitution.

So let’s play. What kind of arms isn’t listed. While we have Supreme Court decisions. We reject those. They are merely creating rights aren’t they?

So if we ban semiautomatic rifles that leaves you single shot, bolt action, lever action, and pump action doesn’t it? Lots of options.

So using the original Constitution explain why that would be wrong.

Guns are tools. Babies are HUMANS. Abortion is MURDER. Case closed.

 

[Pellinore]

It does not say what KIND of "Arms". Therefore ,it could be anything from a musket to a 50 Megaton Nuke,

None other than Justice Scalia repeatedly pointed out that the inclusion of the word "bear" implies that it restricts itself to weapons that can be borne.

 

[Clyde 154]

The "where's that right in the Constitution?" argument is deeply flawed. It ignores / dismisses the most foundational intermingled principles of the Constitution, that of conferred powers and retained rights.

All power originates from the people. Government only has those powers granted to it in the Constitution and every power not conferred by the people, is retained by them either as rights, (exceptions of powers not granted), or to be conferred by them to the states through state constitutions, for states to exercise over the issues and affairs and perform the duties the people assign to the states.

That foundational principle was a primary argument of the Federalists in opposition to adding a bill of rights to the federal Constitution. They argued that it was absurd and dangerous to declare that things shall not be done, when no power was ever granted to impact those issues and affairs.

The Federalists warned that in the future, people might think that the Bill of Rights was the complete list of the rights people possessed and that anything left out was intended to be placed in the care and control of government.

Madison was a Federalist, vehemently opposed to a bill of rights who eventually was forced to support the addition of a bill of rights. Ironically he was tasked with editing the proposed amendments from the states, composing provisions all could agree upon and arguing for their adoption.

He did add two proposals himself as rules of construction and interpretation that were recognition and codification of Federalist argument against a bill of rights, they became the 9th and 10th Amendments.

The 9th Amendment reminds us that there are a myriad of rights that the people possess that were not included in the Bill of Rights but remain constitutionally secured rights, because the government must be held powerless to move against those interests.




So here comes more information than you want but it is information you need . . .

I understand your belief that the Court made-up these rights and I do agree that the theory of "penumbral rights" is a clumsy work-around, a contrivance to allow the Court to recognize and protect rights not mentioned in the Constitution. That sense of it being an artifice allows many attacks on the process and of the rights that were "invented" by the theory's application.

Constitutionally, itis argued that work around was made necessary because of an earlier, horrible decision by the Court that the Court is reluctant to revisit. That decision, The Slaughter-House Cases (1873), handed down a couple years after the enactment of the 14th Amendment, worked to invalidate the 14th Amendment's "privileges or immunities" clause. That essentially killed the principle of "Liberty", leaving only "due process" and "equal protection" as the legal mechanisms to decide that a challenged state law violated a citizen's rights.

This frustrated the application of the 14th Amendment's protection because "due process" & "equal protection" demand a methodical, case-by-case, issue-by-issue airing of challenges to law and that begat anoher invention of the Court, "selective incorporation", a piecemeal, clause by clause application of the Bill of Rights that is still going on 100 years later, with the 2nd Amendment finally incorporated in 2010.

So let's advance to the 1960's and the Warren led SCOTUS desire to advance civil rights in a wide, broad manner but "due process" and "equal rpotection" not being conducive for that. The Court's solution was the "penumbral rights theory". This allowed them to reinvigorate the overall principle of the 14th Amendment that the Court essentially killed in 1873, that the Bill of Rights embodies a rational continuum of liberty . . . That those specific proclamations of rights stand as examples of many other Liberty interests where government's power is impotent. The Warren Court said that those specific examples (Amendments 1-8) have "penumbras" and "emanations" and innumerable liberty interests reside within that principle and can be recognized and protected without requiring specific laws being challenged and the Court speaking on every little disagreement.

The Court said that recognizing a panoply of unenumerated rights means that citizens can enjoy a life free from arbitrary impositions and purposeless restraints by government and includes the protection of those rights, such as privacy (and later, its derivative rights like abortion and LGBT rights). That protection demands the rejection of the state justifications for laws binding citizens, when no power was ever granted giving government power in those affairs.

So essentially you are looking at it backwards; the principle isn't that a right isn't listed, it's that a power over that interest (of one's own body and autonomy) isn't granted.

.

The logical flaw with that false premise is the fact...there is more than "one" human body involved. What about the supposed rights of the FATHER? The courts deny the father has any parental rights as defined by DNA testing......until child support is demand from the female after said life exits the magical female vagina that defines life.

The court systems have radically moved away from the concept of logic and reason. For instance. On one hand........and this is something that Congress got right in working within the boundaries of physical science, You have the endangered species act that clearly defines "the unborn....gestating life" as an example of life within the species that is being protected, and if that gestating unborn life is caused harm, the person causing such harm is subject to a fine and or imprisonment.

How can one law such as the Endangered Species Act of 1973 define life as preexisting the actual birth process.......while the court denies the science that proves that life is exampled upon conception in the fact that once created, even while unborn........a gestating life has a totally unique DNA human signature, different from either parent, unlike any other life on earth.

Its a contradiction in both logic and reason, when Animals have more of right to live than unborn people.

Unalienable: Non transferable. Even a mother can't transfer the right to live to herself from her unborn child.......as we are all CREATED....not born but created with an unalienable right to life and liberty void of DUE PROCESS. Who is to protect the unborn life if not the mother? I can't think of a worse crime against humanity than for a mother to sanction the killing of any of her children under the pretense of a personal right. Again, what about the rights of the unborn child and the father? They are non-existent. Anyone that declares that Justice is being served indeed has a warped sense of morality. Justice demands DUE PROCESS, especially for the defenseless and the innocent.

 

[Abatis]

The logical flaw with that false premise is the fact...there is more than "one" human body involved. What about the supposed rights of the FATHER? The courts deny the father has any parental rights as defined by DNA testing......until child support is demand from the female after said life exits the magical female vagina that defines life.

The court systems have radically moved away from the concept of logic and reason.

First, I'm not making a logical argument; everything I said is a legal argument that encompasses the founding constitutional philosophy to the 20th Century court operations that recognized the right of privacy and by extension, personal autonomy.

The flaw in logic is yours, you begin with a preferred outcome and then construct a partial argument for getting there but then acknowledge the law does not allow your outcome.

The law and courts are not based in logic but they do place much importance on the capacity of reason to determine personhood. The concept of personhood differs from the consideration of a legal, natural person, which only demands one to be born -- a magical vagina is not required, any regular vagina will do -- but the law demands one be outside it.

For instance. On one hand........and this is something that Congress got right in working within the boundaries of physical science, You have the endangered species act that clearly defines "the unborn....gestating life" as an example of life within the species that is being protected, and if that gestating unborn life is caused harm, the person causing such harm is subject to a fine and or imprisonment.

You don't need to go outside the human to find examples of legal protection of the unborn and this is where there is a very strong argument that the law displays either a lack of logic or simply complete abandonment of logic . . .

There are many state laws that make intentionally causing the death of the unborn either murder or manslaughter.. Some of those laws define "'unborn child' as any individual of the human species from fertilization until birth" and reviewing the list in the link above, you will see these laws exist even in the bluest states.

That some of those laws could be reasonably, logically, plausibly extended to a medical procedure (since "intentionally causing the death" is the primary factor) is why specific exemptions are stated.

A typical carve-out for abortion reads; "these provisions do not apply to acts which cause the death of an unborn child if those acts were committed during any abortion to which the pregnant woman has consented or to acts which were committed pursuant to usual and customary standards of medical practice."

To demand murder to be charged for some acts that intentionally cause the death of an "unborn child" and leave abortion exempted, are unpersuasive logically or morally . . . but the law is blind to subjective logical and moral arguments.

How can one law . . . define life as preexisting the actual birth process.......while the court denies the science that proves that life is exampled upon conception in the fact that once created, even while unborn........a gestating life has a totally unique DNA human signature, different from either parent, unlike any other life on earth.

Many of the laws criminalizing intentionally causing the death of an "unborn child" recognize that scientific fact, defining an unborn child "as a member of the species Homo sapiens, at any stage of development". . . These laws already assign some degree of legal status to an unborn child but then they make exceptions in that law when causing the intentional death of an "unborn child" is performed under the consent of the mother and if the procedure performed is an accepted medical practice.

The legal and political questions for Pro-Life people are:

Can the legal definition of what is deemed to be an accepted medical practice be changed?​

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Can the legal theory and distinction be changed, that allows abortion be excepted out of the criminal code that criminalizes, intentionally causing the intentional death of an "unborn child"?​

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And then, the biggie, can the woman's consent be removed from the process, can she be compelled to carry the unborn child to birth?​

Can those legal arguments be made to change any of those conditions, extinguishing those exceptions in law, compelling a person, without dragging subjective moral, or worse, religious arguments into it, which only serve to obfuscate and negate the legal argument?

.

 

[SavannahMann]

Guns are tools. Babies are HUMANS. Abortion is MURDER. Case closed.

So the constitutional argument is bullshit. Got it.

 

[SavannahMann]

None other than Justice Scalia repeatedly pointed out that the inclusion of the word "bear" implies that it restricts itself to weapons that can be borne.

See, that is the problem. To define the Second, we have to use the Supreme Court decisions, and that is the complaint of those who are opposed to Abortion. The Supreme Court found the right out of thin air. It isn’t explicitly mentioned in the Constitution you see. Only those rights explicitly mentioned actually exist.

But take any of the rights. Literally pick one. You have the right to be secure in your person and papers. Ok. Tell me without using a Supreme Court precedent, why the Government isn’t supposed to read your emails or listen to your phone calls? That is not your person, or papers is it?

Take it further. Apply two arguments. The Texas Argument for their Abortion Law is that it uses a loophole from 1908. If the State is not enforcing the law, then there is no legal remedy available. The State isn’t suing people, other citizens are. And the State has nothing to do with it, and the Supreme Court is prohibited from getting involved.

If that is true, what prevents the Muslims from gaining elective office in Michigan and passing a similar law allowing anyone who attends a Christian Church to be sued? Or New York passing a law that allows anyone who owns an AR-15 to be sued?

The problem is that most people view the Constitution incorrectly.

Look at it not as merely a legal framework. But picture it in context of the people of the era. It was the Ten Commandments. Thou Shall Not. Nobody defined the Ten Commandments. Nobody expressly described what Coveting the neighbors wife, or property meant. Were you coveting when you told your neighbor he had a beautiful horse? Do you covet your neighbors car when you tell him it’s a great car?

The Bill of Rights was intended the same way. To express in a vague manner what Freedoms we all had from the Divine. But it took no time whatsoever to start to limit those freedoms. Well that sort of speech shouldn’t be protected. That’s obscene. We can’t let this guy go because of a mistake by the cops in the search of his house, he’s a bad man who commits crimes.

We find exceptions. And then we base exceptions on those exceptions. It’s very rare when we say definitively that this is absolutely unconstitutional. Even when the Court rules against the law, they say it would be constitutional if this or that had been done just a little differently.

Thou Shall Not abridge Freedom of Speech, Freedom of the Press, or Freedom of Religion. I know there is more. My point is thou shall not.

 

[Abatis]

Only those rights explicitly mentioned actually exist.

That people might someday think that, and believe only those rights specifically enumerated were protected, was among the arguments raised in opposition to adding a bill of rights to the Constitution.

To alleviate that fear, Madison composed an Amendment that was not derived from proposals by the states but was a product of his own Federalist mind. That became the 9th Amendment of the Bill of Rights:

Amendment IX​

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.​

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You seem to be eager to demonstrate the wisdom and prescience of the framers, combining that with the surprising ability to ignore the Bill of Rights while purporting to speak authoritatively about it.

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[SavannahMann]

That people might someday think that, and believe only those rights specifically enumerated were protected, was among the arguments raised in opposition to adding a bill of rights to the Constitution.

To alleviate that fear, Madison composed an Amendment that was not derived from proposals by the states but was a product of his own Federalist mind. That became the 9th Amendment of the Bill of Rights:

Amendment IX​

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.​

​

You seem to be eager to demonstrate the wisdom and prescience of the framers, combining that with the surprising ability to ignore the Bill of Rights while purporting to speak authoritatively about it.

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Or not.

Look. I’m in favor of freedom. I believe the Constitution protects a lot of things that are not specifically listed. Like Abortion.

I was using the arguments that the “Originalists” use to say that Abortion isn’t permitted. I am using their own arguments on issues they claim are protected by the Constitution.

I usually argue against the exceptions used to weaken the rights.

But the truth is everyone hates the Constitution. The left hates the second. The right hates others. I love it all.

 

[San Souci]

So the constitutional argument is bullshit. Got it.

There is NOTHING in the Constitution that says you can murder babies.

 

[Abatis]

Or not.

Look. I’m in favor of freedom. I believe the Constitution protects a lot of things that are not specifically listed. Like Abortion.

Mmmmkay.

I was using the arguments that the “Originalists” use to say that Abortion isn’t permitted. I am using their own arguments on issues they claim are protected by the Constitution.

I would argue that those people are not originalists or textualists and certainly not constitutionalists.

Social conservatives, while often draping themselves in the Constitution, are driven by moralism that isn't tethered to the Constitution and is usually grounded in theology and dogma. As a constitutionalist, I resent social conservatives waving the Constitution in people's faces while espousing positions that government has no role in and are rejected by the Constitution.

I usually argue against the exceptions used to weaken the rights.

Which is why it is important to always stand on the principle that our original, fundamental, fully retained righs are not given, granted, creaed or estblished by the provision recognizing and securing them (or not).

But the truth is everyone hates the Constitution. The left hates the second. The right hates others. I love it all.

I agree that both are dangerous to liberty. I put dogma based social conservatives and leftists who tend to ignore and dismiss the Constitution, in the same box.

Both demand government exercise powers it was never granted, to compel / prohibit / modify citizen behavior that they consider abhorrent.

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[SavannahMann]

There is NOTHING in the Constitution that says you can murder babies.

There is nothing in the Constitution that says a State can’t declare itself to have a single religion. So Michigan can outlaw Christianity. Got it.

 

[San Souci]

There is nothing in the Constitution that says a State can’t declare itself to have a single religion. So Michigan can outlaw Christianity. Got it.

Yes. There is. The Separation of Church and State covers that. Caught ya lying again.

 

[SavannahMann]

Yes. There is. The Separation of Church and State covers that. Caught ya lying again.

Where exactly is that in the Constitution?