We the People

[dblack]

I'd actually cite the Bill of Rights among the Anti-Federalists biggest failures. It's done more to confuse the issue of inalienable rights than to promote them. We've talked about the way freedom of religion has been perverted into a rationale for special privilege. And of course the general argument that listing some rights implies that government has no obligation to protect others - which has become a common premise in modern debates on civil rights.

The 9th amendment removes any such implications. Only idiots who are constitutional novices insist that a right has to be 'in the constitution' to exist.

Well, I certainly consider them idiots, but I hear the argument frequently. And not just from internet crackpots.

Yeah, but the argument doesn't get much legal traction. As the 9th amendment just toasts it. Precedent recognizes about an order of magnitude more rights than the constitution explicitly articulates.

It does, however, fuel political momentum. And that has a way of circling around to influence legal decisions.

 

[Skylar]

I'd actually cite the Bill of Rights among the Anti-Federalists biggest failures. It's done more to confuse the issue of inalienable rights than to promote them. We've talked about the way freedom of religion has been perverted into a rationale for special privilege. And of course the general argument that listing some rights implies that government has no obligation to protect others - which has become a common premise in modern debates on civil rights.

The 9th amendment removes any such implications. Only idiots who are constitutional novices insist that a right has to be 'in the constitution' to exist.

Well, I certainly consider them idiots, but I hear the argument frequently. And not just from internet crackpots.

Yeah, but the argument doesn't get much legal traction. As the 9th amendment just toasts it. Precedent recognizes about an order of magnitude more rights than the constitution explicitly articulates.

It does, however, fuel political momentum. And that has a way of circling around to influence legal decisions.

I disagree. The history of rights in this country has been toward the broadening of them, with more and more rights recognized and protected with each passing year. With the courts frequent participants in the expansion of explicit constitutional protection.

 

[dblack]

I'd actually cite the Bill of Rights among the Anti-Federalists biggest failures. It's done more to confuse the issue of inalienable rights than to promote them. We've talked about the way freedom of religion has been perverted into a rationale for special privilege. And of course the general argument that listing some rights implies that government has no obligation to protect others - which has become a common premise in modern debates on civil rights.

The 9th amendment removes any such implications. Only idiots who are constitutional novices insist that a right has to be 'in the constitution' to exist.

Well, I certainly consider them idiots, but I hear the argument frequently. And not just from internet crackpots.

Yeah, but the argument doesn't get much legal traction. As the 9th amendment just toasts it. Precedent recognizes about an order of magnitude more rights than the constitution explicitly articulates.

It does, however, fuel political momentum. And that has a way of circling around to influence legal decisions.

I disagree. The history of rights in this country has been toward the broadening of them, with more and more rights recognized and protected with each passing year. With the courts frequent participants in the expansion of explicit constitutional protection.

That's only true in fairly narrow, special interest situations. Economic freedom, in particular, has been continuously degraded. To the extent that today we can't even decide for ourselves how to pay for health care. And the biggest problem is that concept of rights has been conflated with special privilege. Most people today don't even bother to distinguish between inalienable rights and entitlements.

 

[Skylar]

The 9th amendment removes any such implications. Only idiots who are constitutional novices insist that a right has to be 'in the constitution' to exist.

Well, I certainly consider them idiots, but I hear the argument frequently. And not just from internet crackpots.

Yeah, but the argument doesn't get much legal traction. As the 9th amendment just toasts it. Precedent recognizes about an order of magnitude more rights than the constitution explicitly articulates.

It does, however, fuel political momentum. And that has a way of circling around to influence legal decisions.

I disagree. The history of rights in this country has been toward the broadening of them, with more and more rights recognized and protected with each passing year. With the courts frequent participants in the expansion of explicit constitutional protection.

That's only true in fairly narrow, special interest situations. Economic freedom, in particular, has been continuously degraded.

The regulation of commerce has always been an explicit government power. The only question is the jurisdiction of a given government's authority to regulate. Not the extent of the power itself. What you're describing is an expansion of jurisdiction of *powers*. Not a restriction of rights. The 'economic freedom' you're referring to hasn't been an expression of 'rights'. Its been an expression of the application of power. What states *allow*. Not what rights mandate.

And the Bill of Rights didn't create this situation. As the past grants the States even *more* power over the individual than it has now as it relates to commerce. As the Bill of Rights didn't even apply to the States to begin with.

To the extent that today we can't even decide for ourselves how to pay for health care. And the biggest problem is that concept of rights has been conflated with special privilege. Most people today don't even bother to distinguish between inalienable rights and entitlements.

That's simply taxation. And taxation is a power well within the government's authority to regulate.

On issues of expression, religion, sexual activity, marriage, self defense, press, reproduction, free speech, ownership of other people, applying the Bill of Rights to the States ect......fundamental issues, rights have dramatically expanded. 'The method of paying for healthcare'? That's a narrow special interest situation.

I would argue that your argument is exactly wrong. Literally opposite of the truth in terms of 'special interests' vs. 'fundamental rights'.

 

[dblack]

The regulation of commerce has always been an explicit government power.

Nope. Interstate commerce. This was clearly understood at the time time it was ratified to refer to oversite and prevention of trade barriers erected by state governments. The intent was to maintain economic freedom, not squelch it. It was certainly never intended to apply to individual economic decisions.

To the extent that today we can't even decide for ourselves how to pay for health care. And the biggest problem is that concept of rights has been conflated with special privilege. Most people today don't even bother to distinguish between inalienable rights and entitlements.

That's simply taxation. And taxation is a power well within the government's authority to regulate.

It's decidedly NOT 'simply' taxation. It's abusing the power of taxation specifically for its side effects - manipulating behavior in the guise of funding government. That logic puts all of our rights at jeopardy, as any of them could be the targets of tax incentives/mandates/penalties,

On issues of expression, religion, sexual activity, marriage, self defense, press, reproduction, free speech, ownership of other people, applying the Bill of Rights to the States ect......fundamental issues, rights have dramatically expanded. 'The method of paying for healthcare'? That's a narrow special interest situation.

The right to decide how we pay for healthcare is merely the topic of the day. Our economic rights have been falling by the wayside far faster that social liberties have been expanded. And often they've been sacrificed in the name of false social "liberties" that amount to privileges for special interest groups.

I would argue that your argument is exactly wrong. Literally opposite of the truth in terms of 'special interests' vs. 'fundamental rights'.

How so? Let's take a less modern case. Would you say tax exemptions for religious organizations and charities is an expansion of fundamental rights, or a grant of special privilege?

 

[Skylar]

The regulation of commerce has always been an explicit government power.

Nope. Interstate commerce. This was clearly understood at the time time it was ratified to refer to oversite and prevention of trade barriers erected by state governments. The intent was to maintain economic freedom, not squelch it. It was certainly never intended to apply to individual economic decisions.

And in the very next sentence after the one you cited, you can see the distinction:

"The only question is the jurisdiction of a given government's authority to regulate."

You're arguing which government has power over a particular act of commerce. And the very argument you're having demonstrates that we're discussing an issue of powers, not rights. If the State can regulate your commerce within a State and the Federal government can regulate your commerce between them, then the entire idea of 'economic freedom' isn't a matter of individual rights. As government has the power to enact elaborate restrictions on your actions.

The only question is WHICH government has that power. Not IF government has that power.

Which is my point.

Your 'economic freedom' argument is a largely matter of privilege, not rights. Actions allowed by government, either State or Federal depending on the type of commerce. With the degree of restrictions that government could enact on acts of commerce *far* more egregious in the past than it is in the present. You could literally BE an act of commerce in the past, depending on your skin color.

That's simply taxation. And taxation is a power well within the government's authority to regulate.

It's decidedly NOT 'simply' taxation. It's abusing the power of taxation specifically for its side effects - manipulating behavior in the guise of funding government. That logic puts all of our rights at jeopardy, as any of them could be the targets of tax incentives/mandates/penalties,
[/quote]

There's no restriction on 'manipulating behavior in the guise of government funding'. If the government wanted to say, manipulate buying behavior by raising the tariff on British goods....it can do so. There government taxation authority is broad.

On issues of expression, religion, sexual activity, marriage, self defense, press, reproduction, free speech, ownership of other people, applying the Bill of Rights to the States ect......fundamental issues, rights have dramatically expanded. 'The method of paying for healthcare'? That's a narrow special interest situation.

The right to decide how we pay for healthcare is merely the topic of the day. Our economic rights have been falling by the wayside far faster that social liberties have been expanded. And often they've been sacrificed in the name of false social "liberties" that amount to privileges for special interest groups.

'How you pay for healthcare' is a special interest issue that is trivial in comparison to free speech, free travel, reproductive freedoms, marriage freedoms, freedom from government violation of rights (both state and federal), freedom from slavery, the freedom to vote (for women, blacks, non-land owners), the freedom to defend yourself and many others.

Economics is commerce. And is explicitly within the government's power to regulate. Either State or Federal depending on which type of commerce we're speaking of. So you're picking an area that has never been a matter of 'rights' as much as an exercise of powers. With the state governments or federal governments *allowing* certain acts of commerce or certain codes of conduct in commerce. With vast authority to regulate.

I would argue that your argument is exactly wrong. Literally opposite of the truth in terms of 'special interests' vs. 'fundamental rights'.

How so? Let's take a less modern case. Would you say tax exemptions for religious organizations and charities is an expansion of fundamental rights, or a grant of special privilege?[/QUOTE]

I don't know the precedent surrounding tax exceptions for religious organizations well enough to discuss the topic intelligently. Pleas select another example.

 

[Centinel]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

 

[Skylar]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

And?

 

[C_Clayton_Jones]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

 

[Centinel]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

 

[Skylar]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

The preamble makes it clear that the States are stand ins for the people of the United States.

 

[Centinel]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

The preamble makes it clear that the States are stand ins for the people of the United States.

Article seven makes it clear that the constitution was established between the states that ratified it.

 

[Skylar]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

The preamble makes it clear that the States are stand ins for the people of the United States.

Article seven makes it clear that the constitution was established between the states that ratified it.

With the preamble that the States are stand ins for the people of the United States. Article 7 merely defines terms of ratification.

 

[dblack]

The regulation of commerce has always been an explicit government power.

Nope. Interstate commerce. This was clearly understood at the time time it was ratified to refer to oversite and prevention of trade barriers erected by state governments. The intent was to maintain economic freedom, not squelch it. It was certainly never intended to apply to individual economic decisions.

And in the very next sentence after the one you cited, you can see the distinction:

"The only question is the jurisdiction of a given government's authority to regulate."

You're arguing which government has power over a particular act of commerce.

No, I'm not. I'm arguing what the intention of the Commerce Clause was. I've read exactly nothing to indicate it was proposed as a way for government to dictate personal economic decisions. In any case, I'm not that interested in tedious arm wrestling over the founder's intent. None of us were there. It matters when making legal determinations about Constitutional rules, but I'm more interested in shared values. What do we want it to mean? And why? That's what's interesting, and in the end it's what will drive future policy.

In this case, I'm saying that economic freedom is every bit as fundamental and freedom of speech. It's essentially just a subset of 'freedom of association'.

The only question is WHICH government has that power. Not IF government has that power.

There is always the question of whether government should have that power, which is what I'm talking about.

That's simply taxation. And taxation is a power well within the government's authority to regulate.

It's decidedly NOT 'simply' taxation. It's abusing the power of taxation specifically for its side effects - manipulating behavior in the guise of funding government. That logic puts all of our rights at jeopardy, as any of them could be the targets of tax incentives/mandates/penalties,

There's no restriction on 'manipulating behavior in the guise of government funding'. If the government wanted to say, manipulate buying behavior by raising the tariff on British goods....it can do so. There government taxation authority is broad.

But should it? Why should it have power to do something in the guise of taxation that it would never be allowed via direct legislation? It's this contradiction that was laid bare by Robert's decision on ACA, and why it was such act of hypocrisy.

If we can agree that it would be against the spirit, and the letter, of the Constitution for Congress to pass a law forcing us to buy something, why is ok to do so by calling it simply calling it a tax?

'How you pay for healthcare' is a special interest issue that is trivial in comparison to free speech, free travel, reproductive freedoms, marriage freedoms, freedom from government violation of rights (both state and federal), freedom from slavery, the freedom to vote (for women, blacks, non-land owners), the freedom to defend yourself and many others.

I disagree. The freedom to decide how you pay for healthcare is a specific expression of the very general, and very fundamental freedom of association.

I would argue that your argument is exactly wrong. Literally opposite of the truth in terms of 'special interests' vs. 'fundamental rights'.

How so? Let's take a less modern case. Would you say tax exemptions for religious organizations and charities is an expansion of fundamental rights, or a grant of special privilege?

I don't know the precedent surrounding tax exceptions for religious organizations well enough to discuss the topic intelligently. Please select another example.

Nah. I think you know enough about the argument, as many times as I've made it. We sell out real, universal rights - held by individuals - and convert them into privileges reserved for special interest groups. It happened with freedom of religion. It happened with the modern 'civil rights' movement. It's happening today with the so-called 'right' to healthcare.

 

[Centinel]

The constitution was established between the states.

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same." [emphasis added]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

The preamble makes it clear that the States are stand ins for the people of the United States.

Article seven makes it clear that the constitution was established between the states that ratified it.

With the preamble that the States are stand ins for the people of the United States. Article 7 merely defines terms of ratification.

The states were the sovereign political bodies that established the constitution between themselves.

 

[Skylar]

The regulation of commerce has always been an explicit government power.

Nope. Interstate commerce. This was clearly understood at the time time it was ratified to refer to oversite and prevention of trade barriers erected by state governments. The intent was to maintain economic freedom, not squelch it. It was certainly never intended to apply to individual economic decisions.

And in the very next sentence after the one you cited, you can see the distinction:

"The only question is the jurisdiction of a given government's authority to regulate."

You're arguing which government has power over a particular act of commerce.

No, I'm not. I'm arguing what the intention of the Commerce Clause was. I've read exactly nothing to indicate it was proposed as a way for government to dictate personal economic decisions.In any case, I'm not that interested in tedious arm wrestling over the founder's intent. None of us were there. It matters when making legal determinations about Constitutional rules, but I'm more interested in shared values. What do we want it to mean? And why? That's what's interesting, and in the end it's what will drive future policy.

If we're talking about future policy, then I'd say it should reflect our values and sense of integrity and fairness. Which seem reasonably connected to commerce.

In this case, I'm saying that economic freedom is every bit as fundamental and freedom of speech. It's essentially just a subset of 'freedom of association'.

As speech....AND religion....AND privacy....AND self defense.....AND marriage.....AND sexual activity (at least the consensual adult stuff)?

If we've 'regressed' in one area but surged forward in half a dozen other, I'd say that's a clear progression toward greater rights.

There is always the question of whether government should have that power, which is what I'm talking about.

On issues that are genuinely about living.....like food, transportation, housing, clothing, maintenance supplies, employment, etc.....yeah, definitely. As these are the means that goods and services are distributed in our society. We recognize that the denial of access to these is harm when done by government. I don't see it as any less harmful when done by private individuals.

And its completely reasonable for a State to set reasonable standards of conduct in business within its boundaries. A code of conduct that reflects the people of that State.

On non-essential items....like coffee houses, wedding cake bakers, jewelry stores and the like? The imperative is less demanding as the goods are less necessary. So I'd be willing to acquiesces to the desires of the seller on this.

But on say, food? The harm and loss of freedom to the person unable to buy basic necessities is far more egregious than the harm to the seller of having to sell goods to someone they don't want to. Especially when goods and services are overwhelmingly distributed by private hands.

There's no restriction on 'manipulating behavior in the guise of government funding'. If the government wanted to say, manipulate buying behavior by raising the tariff on British goods....it can do so. There government taxation authority is broad.

But should it? Why should it have power to do something in the guise of taxation that it would never be allowed via direct legislation? It's this contradiction that was laid bare by Robert's decision on ACA, and why it was such act of hypocrisy.

But why wouldn't we allow it outside taxation? Because the government lacks the authority to collect the funds without taxation. However, it does possess the authority within its taxation powers. So the reason to deny it ceases to exist within the authority proscribed to the government.

Why wouldn't taxation reflect the values of the people like any other law?

Nah. I think you know enough about the argument, as many times as I've made it. We sell out real, universal rights - held by individuals - and convert them into privileges reserved for special interest groups. It happened with freedom of religion. It happened with the modern 'civil rights' movement. It's happening today with the so-called 'right' to healthcare.

Oh, I can talk 'about' the issue. But I'd be citing my opinion on the matter. And a relatively uninformed one. I prefer to base my arguments in something far less ephemeral.....like legal precedent. And I genuinely don't know enough about caselaw surrounding tax exemption for churches to discuss it intelligently. If I know an area of law, I'll tell you. If I don't, I'll tell you.

I don't know that you and I have ever discussed this issue before. So you may be thinking of someone else.

 

[Skylar]

The Constitution is the creation of the people, not the states, where the states may not interfere with the relationship between the people and the National government they created, a National government that is supreme, whose laws are binding on the states, which are subordinate to the Constitution, its case law, and the rule of law.

Consequently the 'argument' that the states 'created' the Federal government is factually wrong.

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

The preamble makes it clear that the States are stand ins for the people of the United States.

Article seven makes it clear that the constitution was established between the states that ratified it.

With the preamble that the States are stand ins for the people of the United States. Article 7 merely defines terms of ratification.

The states were the sovereign political bodies that established the constitution between themselves.

'Were' being the key terms. When they joined in the United States they surrendered much of their sovereignty to a federal government. A government that has extensive powers over each state....including jurisdiction over every last inch of the State's territory.

Its the same as an individual in the State. When they individual is alone, they are the lone sovereign with no one having any authority over them. When they join in the state, they become subject to the will of the relevant majority within the bounds of individual rights. And the law extends to all of that individual's property as well as himself. If the people of a State find that murder is illegal.....and the individual murders someone on his property, the laws still apply.

The individual has sacrificed sovereignty to the State. The State to the Federal government. As in both cases the central authority solves the Hobbesian trap, providing a third party with no interest in conflicts to help prevent them between parties.

 

[Centinel]

The constitution contradicts your opinion. It says that the constitution is established between the states that ratified it.

The preamble makes it clear that the States are stand ins for the people of the United States.

Article seven makes it clear that the constitution was established between the states that ratified it.

With the preamble that the States are stand ins for the people of the United States. Article 7 merely defines terms of ratification.

The states were the sovereign political bodies that established the constitution between themselves.

'Were' being the key terms. When they joined in the United States they surrendered much of their sovereignty to a federal government. A government that has extensive powers over each state....including jurisdiction over every last inch of the State's territory.

Its the same as an individual in the State. When they individual is alone, they are the lone sovereign with no one having any authority over them. When they join in the state, they become subject to the will of the relevant majority within the bounds of individual rights. And the law extends to all of that individual's property as well as himself. If the people of a State find that murder is illegal.....and the individual murders someone on his property, the laws still apply.

The individual has sacrificed sovereignty to the State. The State to the Federal government. As in both cases the central authority solves the Hobbesian trap, providing a third party with no interest in conflicts to help prevent them between parties.

So we are in agreement that the states established the constitution between themselves.

 

[dblack]

I don't know that you and I have ever discussed this issue before. So you may be thinking of someone else.

Hmmm.. maybe. Anyway, I'm referring to the way our conception of rights, and the government's role in protecting them has changed. I referenced freedom of religion because it's a good example of the inverted ways rights can be conceived, or arguably, misappropriated. Freedom of religion is, like all rights, is just an example of our general claim to liberty. There's no sensible reason for government to protect freedom of religion any more than it protects the more general freedom to think for ourselves (and act on those thoughts).

The problem arises when people start thinking of specially noted rights, like freedom of religion, as an indication of special protection or even special privilege. We moved from thinking of freedom of religion as prohibition on government mandating religion to seeing it as justification for special exemptions from various laws. The irony here is that that perspective ultimately undermines the original intent. In order for government to issue special exemptions for religious belief, they must make the call on which religious beliefs are valid, and which aren't. Government ends up doing the very thing the original "right" was supposed to prevent.

And the real problem with this "promoting" of a right to a special privilege isn't just that it undermines the original right, it jeopardizes the underlying freedoms as well. Can we really say we have freedom of association when some associations are "more free than others"?

 

[Skylar]

The preamble makes it clear that the States are stand ins for the people of the United States.

Article seven makes it clear that the constitution was established between the states that ratified it.

With the preamble that the States are stand ins for the people of the United States. Article 7 merely defines terms of ratification.

The states were the sovereign political bodies that established the constitution between themselves.

'Were' being the key terms. When they joined in the United States they surrendered much of their sovereignty to a federal government. A government that has extensive powers over each state....including jurisdiction over every last inch of the State's territory.

Its the same as an individual in the State. When they individual is alone, they are the lone sovereign with no one having any authority over them. When they join in the state, they become subject to the will of the relevant majority within the bounds of individual rights. And the law extends to all of that individual's property as well as himself. If the people of a State find that murder is illegal.....and the individual murders someone on his property, the laws still apply.

The individual has sacrificed sovereignty to the State. The State to the Federal government. As in both cases the central authority solves the Hobbesian trap, providing a third party with no interest in conflicts to help prevent them between parties.

So we are in agreement that the states established the constitution between themselves.

As the agents of the people, sure. Just like the people established the States between themselves. Each sacrificing some personal sovereignty in doing so.

That's why the Constitution begins 'We the People of the United States'. As they are ultimately who is creating the US through their agents the States.

Not individually. But collectively. And 'We the People' is the unit by which the nation is created. Or destroyed for that matter.