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Author	Topic: The Nature of the American Constitution. Revised for your Comfort.
ShaneP Title: Lucasfilm Projects Gremlin(Manager ) Registered: Mar '01	Date Posted: 10/19/05 10:06am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	I disagree, the Supreme Court has been curbing the expansion of federal power for some time now, Where? The Rehnquist court was still very activist. -----signature----- Keep Your Words Sweet. You May Have To Eat Them.
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Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 10/19/05 10:14am Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/19/05 10:15am (1 edits total) Edited By: Vaderize03
	But Rehnquist did a great deal to expand states' rights at the expanse of the federal government. However, there is a lack of consistency in the Rehnquist court in terms of just when state's rights are controlling. It remains to be seen whether or not the Roberts court will continue this trend. For example, ruling against the right of a state to allow physician-assisted suicide on the basis of enforcing federal drug laws would be a misuse of those laws, IMHO. But will Roberts vote to uphold federal power in this instance? I'm leaning towards yes. On the flip side, the use of the RICO statutes by the federal government to prosecute anti-abortion protesters is also a misuse of that law, but would Roberts strike that down? I would also be inclined to say "yes". That would give us the same inconsistency-allowing the misuse of a law in one situation, and upholding it in another. This is all speculative, of course, since Roberts has yet to rule in the Oregon case, but I'm willing to be I will be proven correct. Time will tell..... Peace, V-03 -----signature----- "Bring your pretty face to my axe....." B-O-H-I-C-A !! (that was funny DM!) "I'm what Willis was talking about"
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ShaneP Title: Lucasfilm Projects Gremlin(Manager ) Registered: Mar '01	Date Posted: 10/19/05 11:33am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	-----signature----- Keep Your Words Sweet. You May Have To Eat Them.
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DARTH-SHREDDER Registered: May '05	Date Posted: 10/19/05 3:32pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Kimball, another thing. You say that you have to go to the constitution as its written. But what about issues that aren't in the constitution. I asked you earlier about gay marriage but that was a bad example, since marriage is left to the states in the constitution. But what about things that aren't in there at all? Like abortion. -----signature----- The bible is a pathway to many beliefs some consider to be ignorant. Only a sith deals in absolutes....or a conservative. I have a big problem with religion and rednecks. Proud tree hugger. \m/ Rock on/
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Kimball_Kinnison Registered: Oct '01	Date Posted: 10/19/05 6:55pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	DARTH-SHREDDER posted: Kimball, another thing. You say that you have to go to the constitution as its written. But what about issues that aren't in the constitution. I asked you earlier about gay marriage but that was a bad example, since marriage is left to the states in the constitution. But what about things that aren't in there at all? Like abortion. Shredder, I've answered this over and over again. Will you please read my posts and the Constitution? The 10th Amendment posted: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. If the Constitution does not grant authority in an area to the federal government, it is left to the states to decide individually. That is why abortion should never have been dealt with on a federal level. That's why gay marraige shouldn't be a federal issue. That's the case for anything that is not covered by a power granted to the federal government. Period. Paragraph. End of story. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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darth_paul Registered: Apr '00	Date Posted: 10/19/05 8:35pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Kimball_Kinnison posted: Shredder, I've answered this over and over again. Will you please read my posts and the Constitution? The 10th Amendment posted: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. If the Constitution does not grant authority in an area to the federal government, it is left to the states to decide individually. That is why abortion should never have been dealt with on a federal level. That's why gay marraige shouldn't be a federal issue. That's the case for anything that is not covered by a power granted to the federal government. Period. Paragraph. End of story. Kimball Kinnison It's worth emphasizing, Kimball, that it is not the case that any area in which the Constitution does not grant authority is left to the states. It is explicitly not the case in the amendment you posted -- there's that "or to the people" there at the end -- or in the one before it: Ninth Amendment posted: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Tenth Amendment, then, essentially bars the federal government from acting in ways not explicitly permitted by the Constitution, but makes no distinction as to what powers remain with the states and what remain with the people, beyond even the states' legislative ability. The Ninth Amendment further emphasizes the existence of rights beyond those in the Constitution. Rights are natural and God-given, not granted by any government, so nothing that is a right can be denied at the state or federal level. You make a thoroughly compelling case, then, for the inability of the federal government to legislate abortions (at least, so long as patients do not cross state lines, the abortions do not occur on federal property, etc.). However, you do not at all demonstrate that such legislation should be permitted to happen at the state level; the very amendment you quoted allows for areas that states cannot restrict, and it must then be argued whether any of the issues at hand fall within those areas. (Not to mention the potential applicability of other constitutional provisions, such as the 14th, which explicitly provides for equal protection within the states and not simply under the fed.) There are arguments to be made both ways, and it's by no means a cut-and-dried issue. -Paul -----signature----- So this is how liberty dies... with thunderous applause.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/19/05 11:13pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	KK posted: Period. Paragraph. End of story. -Wow, Darth Paul beat me to it. It's not the end of the story. Abortion, or the authority for a woman to determine whether or not she will bear a child to term, may not be something the states have the right to legislate either, the constitution isn't explicit on this issue. Just because the federal government doesn't have jurisdiction doesn't mean the Supreme Court doesn't have jurisdiction to determine whether a state law is valid under the constitution.\\ -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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Darth Mischievous Registered: Oct '99	Date Posted: 10/19/05 11:50pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Simply stated, the way I see it is that social issues are to be decided by the elective representatives of the people, unless such rights are explicitly stated within the US Constitution. As I recall, slavery was legal until the Constitution was amended to reflect such. So were other issues. I simply don't like the courts politicizing our founding document by saying it is 'living and breathing'. If the Constitution is 'living and breathing', then it is meaningless because different standards apply during different times; the document could then be twisted and molded into anyone's political point of view. There is one Constitution, not several variant forms of it. Therefore, in issues such as abortion and other social dilemnas, it is best for the people to decide, not the courts. I'm personally opposed to abortion and gay marriage, but if the legislature passes such measures as legitimate, then so be it. It isn't in the court's authority to decide such matters, when plainly there is no constitutional reference to either issue. It is for the legilsative process to decide. I'm not opposed to the legalization of such things if done correctly, but I am opposed to the imposition of invented rights by judicial fiat with no basis under the law other than personally held beliefs by justices. That's why I support constructionists to measure the law against Constitutional muster, because such justices follow the Founders' intent on their branch of government and not overstep their boundaries. I'm quite sure many constructionists would not be inclined to overturn abortion or gay marriage if they were approved via the proper means, via the legislative process and the people's democratic will. We live in a Democratic Republic, not in a judicial oligarchy. -----signature----- "The democracy will cease to exist when you take away from those who are willing to work and give it to those who are not." --Thomas Jefferson
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/20/05 8:10am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	DM posted: We live in a Democratic Republic, not in a judicial oligarchy. Sounds like someone has been memorizing Rush's talking points... DM posted: If the Constitution is 'living and breathing', then it is meaningless because different standards apply during different times; the document could then be twisted and molded into anyone's political point of view. There is one Constitution, not several variant forms of it. -Human beings interpret the constitution. Even if every member of the court was in the mold of Scalia, Thomas, or Rehnquist, there would still be disagreement. Scalia, Thomas, and Rehnquist did not vote together on EVERY case. To think there is just ONE valid interpretation of the constitution is to do a disservice to our whole system of jurisprudence. The whole idea behind our government is that reasonable minds may differ, let's compromise. Let's divide the power up and hope that the differences in opinion will be resolved amicablly. As far as the legislature v. the judiciary, the legislature is weighed towards what the majority wants. The judiciary is charged with being fair and nuetral, with making sure the minority voice is not drowned out completely, that they get a fair hearing. Sometimes, as with the civil rights cases, the division of power requires that the judiciary curb the excess abuses of congres or the states. Matters of the family, between man and woman in the bedroom, are rights I believe are retained by the people. No state has the right to make such intimate decisions for a woman. I believe the constitution garunteed such freedom from government intrusion from the beginning. Strict Constructionism in its current form ignroes much of what Madison and other founders had to say about the constitution. The list of rights enumerated was not meant to be exclusive, as many past posts (as well as the 9th and 10th amendments) point out. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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ShaneP Title: Lucasfilm Projects Gremlin(Manager ) Registered: Mar '01	Date Posted: 10/20/05 12:43pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan Strict Constructionism in its current form ignroes much of what Madison and other founders had to say about the constitution. Which was what? What did Madison have to say about it? What did he also have to say about the dangers of factions? -----signature----- Keep Your Words Sweet. You May Have To Eat Them.
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Kimball_Kinnison Registered: Oct '01	Date Posted: 10/20/05 1:15pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	darth_paul posted: The Tenth Amendment, then, essentially bars the federal government from acting in ways not explicitly permitted by the Constitution, but makes no distinction as to what powers remain with the states and what remain with the people, beyond even the states' legislative ability. The Ninth Amendment further emphasizes the existence of rights beyond those in the Constitution. Rights are natural and God-given, not granted by any government, so nothing that is a right can be denied at the state or federal level. You would be wrong in that, especially in your reading of the Tenth Amendment. It is very specific about what powers are reserved to what group (i.e. the states or the people). How can I say that? Because it is a clear and obvious example of parallelism. The Tenth Amendment posted: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. The word "respectively" is a clear giveaway that it is parallelism. You can then separate the single sentence into two sentences: The powers not delegated to the United States by the Constitution are reserved to the states. and The powers not prohibited by [the Constitution] to the states are reserved to the the people. The "to the people" part that you cite only applies to those powers that are forbidden to the states by the Constitution. It is a very clear distinction, and it is made is very plain English. To better understand the relationship between the Ninth and Tenth Amendments, you need to remember that any power granted to the government is also a surrendering of rights. The Ninth Amendment simply indicates that the default status of any right not mentioned in the Constitution is that it is retained by the People. It specifically does not say that such rights are protected by the Constitution. Now, with that framework, look at the Tenth Amendment again. What this amendment does is permit any power not given to the federal government to be exercised by the states. However, the states still need to operate under their own grant of power from the People. Under the Ninth Amendment, the People still retain rights. However, just as with the federal Constitution, they can surrender some of those rights to the state government (by granting it certain powers). If the state government is not granted power in an area, then it is a right that is still retained by the People. Those rights are protect, not by an affirmative statement in the Constitution (state or federal), but by the lack of power granted by the Constitution. darth_paul posted: You make a thoroughly compelling case, then, for the inability of the federal government to legislate abortions (at least, so long as patients do not cross state lines, the abortions do not occur on federal property, etc.). However, you do not at all demonstrate that such legislation should be permitted to happen at the state level; the very amendment you quoted allows for areas that states cannot restrict, and it must then be argued whether any of the issues at hand fall within those areas. Under what power could Congress criminalize crossing state lines to get an abortion? That would only be valid under the grossly bastardized interpretation of the Commerce Clause that is used today to give the federal government virtually unlimited authority in anything that conceivably might possibly relate to commerce. For the rest, read what I wrote about parallelism and the Tenth Amendment. Obi-Wan McCartney posted: Abortion, or the authority for a woman to determine whether or not she will bear a child to term, may not be something the states have the right to legislate either, the constitution isn't explicit on this issue. Just because the federal government doesn't have jurisdiction doesn't mean the Supreme Court doesn't have jurisdiction to determine whether a state law is valid under the constitution. Just because a right is retained on the federal level does not mean that it is protected on all levels. All powers given to the states (such as education, police, fire, etc) are rights retained on the federal level. If a power is not granted to the federal government, and it is not forbidden by the Constitution to the states, then the only place you can look to see whether it is allowed or not is in the state Constitution. Those are the only questions that you need to ask under the federal Constitution. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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Darth Mischievous Registered: Oct '99	Date Posted: 10/20/05 7:31pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	The judiciary isn't there for the 'minority', OWM, as that is not its function. Its function is to weigh the law against the Constitution do determine viability, not to step into the culture war to determine social policy. Also, you may (or may not) be surprised to know that I am no fan of Rush Limbaugh. I don't generally listen to his program, and when I occasionally turn it on out of boredom, I must turn it off after listening to him for a few minutes. He's full of himself, and I have trouble dealing with his continual praising himself on a perpetual basis nevermind that I don't drink the 'Kool Aid' that he does. BTW, Limbaugh isn't even on WWL 870 AM any longer, as there is 24//7 local coverage of the Katrina aftermath and recovery. Thank goodness for that. -----signature----- "The democracy will cease to exist when you take away from those who are willing to work and give it to those who are not." --Thomas Jefferson
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Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 10/21/05 8:57am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Limbaugh is amusing, I sometimes listen for comedic value. What do people think of the difference between "originalism" and "strict constructionism"? Is it possible to be one without the other? I content yes, that one can be a stric constructionist without being an originalist, and I feel that modern-day strict constructionism is closer to originalism than true constructionism. Thoughts? Peace, V-03 -----signature----- "Bring your pretty face to my axe....." B-O-H-I-C-A !! (that was funny DM!) "I'm what Willis was talking about"
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/21/05 2:04pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	KK posted: Just because a right is retained on the federal level does not mean that it is protected on all levels. All powers given to the states (such as education, police, fire, etc) are rights retained on the federal level. If a power is not granted to the federal government, and it is not forbidden by the Constitution to the states, then the only place you can look to see whether it is allowed or not is in the state Constitution. Those are the only questions that you need to ask under the federal Constitution. -Says who? Again, just because the federal government lacks authority to legislate, doesn't mean the people didn't retain the right, superceding the state right, meaning the state has no authority to legislate either, regardless of what their constitution said. I mean, if a state had a constitution that said "no Miranda warnings shall be required in this state," that law would be struck down as unconstitutional. The federal government has no right to make laws concerning the scope of Miranda, nor do the states. -----signature----- God Bless J-Rod's Wife! Obi-Wan McCartney: Model Forum Member since 1999! America's Beatles are far better than England's precious Rolling Stones
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Kimball_Kinnison Registered: Oct '01	Date Posted: 10/21/05 3:10pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: Says who? Again, just because the federal government lacks authority to legislate, doesn't mean the people didn't retain the right, superceding the state right, meaning the state has no authority to legislate either, regardless of what their constitution said. By default, no state has any power whatsoever. It can only gain powers through an instrument that grants power to it, namely a constitution. That's the whole purpose of a constitution. It is an instrument whereby the people grant certain powers to the government. It also expresses the limitations on those powers. Therefore, if the people retain a right on the federal level, it is because they did not grant that right to the federal government. The fact that the retained it from the federal government in no way prevents them from granting that right/power to the state government. The key to this is that the federal and state governments are two separate governments, each with its own powers and responsibilities granted to it from the people. Kimball Kinnison -----signature----- You deserve the wrath of Kimball...- OWM Why, Kimball... I didn't know you had it in you.- KW I think that Kimball just made a joke, and a funny joke at that.- Raven Stupidity got us into this mess, why can't it get us out?
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