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Author	Topic: The Nature of the American Constitution. Revised for your Comfort.
Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 10/13/05 1:11pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	And that was absolutely inappropriate. The Supreme Court had no business whatsoever deciding that election; there should have been a revote, if not a recount. I know this has been beaten to death, but the court, which is supposed to be apolitical, made a very political decision, which IMHO, has damaged its' credibility for decades to come. History will judge, but, well, look at split in Bush v Gore, and the justification for federal power usurping states' rights argument given by the conservative majority. A lack of consistency, that was. 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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Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 10/13/05 1:16pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Wrong. Laws come from a higher power above the whims of man. The framers didn't hand the power over to them because of their historical experience with absolutism and the dangers of tyranny. Says whom? The only laws which are irrespective of the feelings of men are the laws of physics. Gravity and the lightspeed limit could care less about the definition of liberty. What you are stating is based on faith, and I'm sorry, but that is not the same for everyone. In attemping to balance the needs of the community against the liberty of the individual, compromises have to be made. Simply claiming that a law comes from "a higher power" and leaving it at that does nothing to solve the problem, especially for those who a) don't believe in a higher power and/or b) who believe that religion should be left out of it. Interpretation does exist, it does change, and it does matter. That fact is above the whims of men, and will lead to a continuation of the battle between originalism and the idea of a living constitution. 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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Vaderize03 Title: Manager Emeritus Registered: Oct '99	Date Posted: 10/13/05 1:29pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	To answer ObiwanMcCartney's question: Yes, I absolutely believe that a right to privacy exists. Not only within the context of the amendments that you mentioned (and due to the supreme court), but also due to the numerous laws that protect aspects of individual privacy that have been enacted by the Congress. The most significant of these in recent days was the 1996 Health Insurance Portability and Privacy Act, or HIPPA, which heavily regulates the distribution of confidential medical information. It is now illegal for a nurse to call out a patient's name in a waiting room to see the doctor next, or to have "sign in" lists in their offices unless they are kept out of sight of other patients. Violations lead to federal sanctions. Other laws protect the privacy of financial information, credit card numbers, bank records, etc. Are we really going to argue that these rights of privacy exist yet the right to control one's own body, to use contraception, and to make an early decision to choose an abortion don't? I don't see how we can, although I'm sure my conservative colleagues could come up with many reasons . One of the biggest arguments conservatives make against the right to privacy is the idea that it isn't written in the Constitution and didn't exist at the same of the Constitution's ratification. That is the "litmus test" Clarence Thomas uses to call a right "fundamental" and deserving of Constitutional protection, and why he has ruled against abortion and gay rights in the past. Those rights were not "deeply rooted in our nation's history and tradition", and therefore do not deserve Constitutional protection. However, I disagree that the right to privacy is not deeply rooted in our nation's history and tradition. I believe that it is as fundamental as the right to free speech. Why is not in the Constitution? Because it shouldn't have to be. The Framers spelled out how the government may deprive a person of life, liberty, and the pursuit of happiness, but even in their time, there were aspects of private life into which the government did not intrude. The government at the time of the signing of the Constitution was not omnipresent in the home (unless you want to count quartering of troops, something specifically forbidden by the Constitution), and certainly was not omnipresent in the bedroom. Did Thomas Jefferson make his affairs public? Did Benjamin Franklin? No-these things were private. They were private in the same way that choosing when and whom to sleep with and whether or not to use birth control is private today. I would say that the right to privacy is very fundamental indeed, and while Congress, state legislatures, and the Supreme Court certainly have the power to regulate it, they do not have the power to abolish it. I also believe that certain aspects of that right-bodily privacy chief amongst them-are untouchable by the government until a point of compelling state interest is reached, such as the point of viability in a pregnancy, and even then, I would severely limit government intrusion here (such as forcing a pregnant woman to be hospitalized to maximize fetal nutrition, for example). So, to sum up: the right to privacy-Yay. Regulatable and, like any other right, not absolute, but certainly fundamental, and not just because it is implied. James Madison would be proud . 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: 10/13/05 2:05pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	I don't know, Vader, he might be pretty dissappointed that so many people refuse to believe that a right of privacy exists, simply because it wasn't explicitly mentioned in the constitution. It's exactly what he was afraid of! -----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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LostOnHoth Registered: Feb '00	Date Posted: 10/13/05 8:56pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	But is the opposition to any acknowledgement of an implied right to privacy based upon the opposition of "implied rights" generally or is the specific subject matter of the implied right - that being privacy which is opposed? -----signature----- 'Our enemies are innovative and resourceful and so are we. They never stop thinking about new ways to harm our country and our people, and neither do we." - George W Bush
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IkritMan Registered: Sep '02	Date Posted: 10/14/05 11:48am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	It's opposition to the thought that judges can infer whatever they want from the Constitution to make their personal opinions law. The only reason a right to privacy exists is that judges invented it; technically, a right to privacy still doesn't exist in the context of the Constitution. -----signature----- Six imams removed from a US Airways flight from Minneapolis to Phoenix are calling on Muslims to boycott the airline. If only we could get Muslims to boycott all airlines, we could dispense with airport security altogether.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/14/05 11:58am Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Judges do not make their PERSONAL opinions law, they are supposed to look at it from a scholarly perspective. Just because their interpretation differs from yours does not mean the judges have interjected their own personal feelings in violation of their duty. -----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: 10/14/05 12:43pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/14/05 12:46pm (1 edits total) Edited By: ShaneP
	Ikrit Man The only reason a right to privacy exists is that judges invented it; technically, a right to privacy still doesn't exist in the context of the Constitution. Vaderize, oh so you think the Supreme Court is overreaching when they come down with a decision against your whims? Can't have it both ways. You wanted an activist judiciary. I still want to know why democrats here have come to love legislating from the most undemocratic branch of the national government. -----signature----- Keep Your Words Sweet. You May Have To Eat Them.
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Fire_Ice_Death Registered: Feb '01	Date Posted: 10/14/05 12:50pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Shane...you are aware that conservatives do the same, right? -----signature----- A European says: I can't understand this, what's wrong with me? An American says: I can't understand this, what's wrong with him? - Terry Pratchett i.hada.field.AD But now that I'm older, My heart's colder, And I can see that it's a lie...
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ShaneP Title: Lucasfilm Projects Gremlin(Manager ) Registered: Mar '01	Date Posted: 10/14/05 12:57pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/14/05 1:03pm (3 edits total) Edited By: ShaneP
	Maybe you should read my post above? Makes pretty clear that's the case. My point is...you want an activist and politicised judiciary, prepare for the consequences....ala 2000 Presidential Election. Vaderize for those who a) don't believe in a higher power and/or b) who believe that religion should be left out of it. Wow, thanks for reading that and coming away not having understood a word of it. Nothing to do with "God", everything to do with the authority of the Constitution, not what men think of it. It's not open to interpretation. What it says is all there is. You don't like what it says? Amend it democratically. That's the self-correcting mechanism. When did democrats become undemocratic? -----signature----- Keep Your Words Sweet. You May Have To Eat Them.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/14/05 1:31pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	That's just not true. The 1st amendment gauruntees the right to free speech, but does that mean you can yell fire in a crowded theater? To say it just says what it says and claim that there is no room for interpretation is the ridiculously asanine thing I've ever heard. No legally trained person would ever make that claim. Even teh Federalists agree that there is ambiguity in the constitution, they just believe in a very narrow reading. There are still gaps in the constitution, it does not account for every and any issue. Geez, the founders were just men, they weren't Gods. Shane, I get your point, I really do, and I think you have a valid view regarding the constitution. Strict construction is a valid interpretation, but the problem is about what it DOESN'T say. The Supreme Court did not invent the right to privacy, it already existed and was implied by the Constitution. There are gaps and there is an evolving application of constitutional principles. Take the Miranda warning example, you have a right to be Mirandized before any custodial interrogation, but this specific application of the constitutional principles of the 4th, 5th, and 6th amendments didn't exist until Miranda v. Arizona. Again, Shane, its just ignorant to say "the constitution isn't open to interpretation." Of course it is. To what degree do we apply the principles? Look even at the first amendment, no establishment of religion, but no hindering the free exercise either. Or the right of free speech, is it limitless? What about the 2nd amendmnet, does that mean there can be NO gun control? How about the commerce clause, what specific laws would be ok under that clause? You can't just simplify the constitution so easily. I can agree that a NARROW interpretation is a proper way to view things, that we should look to originalist intent, but even a narrow viewing involves some interpretation. As far as legislating from the bench: Here's teh cold hard truth. The judiciary has always had the authority to make laws. This predates the constitution, this system of law predates the United States. If the U.S. didn't want judge-made law, they wouldn't have taken the English system, they might have taken the French system. Every law school in the country (even LA, as their lawyers do leave the state) teaches about common-law, AKA JUDGE MADE LAW. -----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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Jabbadabbado Title: Senate Floor Manager Registered: Mar '99	Date Posted: 10/14/05 1:46pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/14/05 1:55pm (1 edits total) Edited By: Jabbadabbado
	The constitution has no meaning without a positive act of interpretation. The Fourth Amendment offers protection from "unreasonable searches and seizures." But how do we decide what constitutes a "search", what constitutes a "seizure" what constitutes "unreasonable." If the text is "all there is," then in many cases it simply doesn't help us at all in practice. Somewhere, someone has to decide what those terms mean. What kind of searches require warrants? What kind of searches aren't really searches at all under the scope of the constitutional protection? What is required to show "probable cause?" The Fourth amendment text has almost no useful meaning without reference to the extensive case law built up around it. What the fourth amendment does, and this is what's important about it, is signal a very generalized intent to limit the scope of police power in criminal investigations against citizens, with a bit of guidance about what the problem areas are likely to be. -----signature----- "As a Chicago sports fan you get used to disappointment."
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IkritMan Registered: Sep '02	Date Posted: 10/14/05 2:49pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Obi-Wan McCartney posted: That's just not true. The 1st amendment gauruntees the right to free speech, but does that mean you can yell fire in a crowded theater? Congress can't abridge free specch; there is nothing in the Constitution that claims everyone else, including theatre owners, cannot abridge free speech on their property. Obi-Wan McCartney posted: To say it just says what it says and claim that there is no room for interpretation is the ridiculously asanine thing I've ever heard. No legally trained person would ever make that claim. Perhaps if legally trained persons weren't trained by liberal activists, there would never be such a problem. Constitutionalists also aren't claiming there is no room for interpretation; the fifth amendment, for instance, prohibits cruel and unusual punishment. Cruel and unusual punishment could include the death penalty, but it might not. This would be a matter for judges to investigate if such a case ever occasioned to do so. Obi-Wan McCartney posted: Even teh Federalists agree that there is ambiguity in the constitution, they just believe in a very narrow reading. I just mentioned one instance where ambiguity exists, and there are many others. The dilemma is that political activists are using this ambiguity to cross a well-drawn border and writing personal morality into the Constitution. Obi-Wan McCartney posted: There are still gaps in the constitution, it does not account for every and any issue. Such as? Obi-Wan McCartney posted: Strict construction is a valid interpretation, but the problem is about what it DOESN'T say. And what it doesn't protect is delegated to the democratic process; if the Founding Fathers really intended for a small group of unelected people to control the policy of what was supposed to be the beacon of freedom in the world, there would have been mass hysteria at the convention and heated debate about handing almost absolute power to one branch. Obi-Wan McCartney posted: The Supreme Court did not invent the right to privacy, it already existed and was implied by the Constitution. Freedom of speech had already existed, but they felt the need to write it in words. Why? And if the Founding Fathers wanted to imply any rights that they felt were necessary, wouldn't they have included those rights in writing? You're speaking of an inalienable right you believe is paramount to the human race, yet it can be found no where in the Constitution except by liberal activists who share what we are supposed to believe a connection with the Founding Fathers and have the powers to infer and discover hidden rights secretly bestowed to us by James Madison. If I hadn't been confronted with such a ridiculous theory for so long, I would think this came out of a Dan Brown conspiracy novel. Obi-Wan McCartney posted: Take the Miranda warning example, you have a right to be Mirandized before any custodial interrogation, but this specific application of the constitutional principles of the 4th, 5th, and 6th amendments didn't exist until Miranda v. Arizona. All of the "Miranda Rights" already existed in the plain text of the Constitution; there was no interpretation to consider other than the judges thought, personally and morally, that people should get to know what is in the Constitution before they say anything. Obi-Wan McCartney posted: Again, Shane, its just ignorant to say "the constitution isn't open to interpretation." It's only considered ignorant if you want to bypass democracy to enact your own moral beliefs. If you want to do such a thing, then the term "interpretation" is your best friend. Obi-Wan McCartney posted: Of course it is. To what degree do we apply the principles? Very interesting, considering that applying all ofthe principles to the fullest extent wouldn't achieve the political results you and other liberal activists require. Many principles must be invented before they can be stretched. This is how activism of any kind can advance so far with so much time. [quote=Obi-Wan McCartney]You can't just simplify the constitution so easily. I can agree that a NARROW interpretation is a proper way to view things, that we should look to originalist intent, but even a narrow viewing involves some interpretation.[/quote] No one is arguing that there is zero interpretation in a constitutionalist standpoint. Our concerns are based on writing new clauses on the basis of "interpretation." [quote=Obi-Wan McCartney]The judiciary has always had the authority to make laws.[/quote] [quote=The Constitution, Article I, Section 1]All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. [/quote] [quote=Obi-Wan McCartney]If the U.S. didn't want judge-made law, they wouldn't have taken the English system, they might have taken the French system.[/quote] Actually, if the U.S. didn't want judge-made law, the Founding Fathers would have included that into the Constitution. Oh, wait! They did! They specifically state all legislation is to be done by the Congress. Notice the word "all." Not some. Not most. All. Or did James Madison imply to you that the Constitution says: [quote=Implied Constitutional Meaning]Most legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives, and the remainder of such legislation shall be passed by a Supreme Court.[/quote ?? [quote=Obi-Wan McCartney]Every law school in the country (even LA, as their lawyers do leave the state) teaches about common-law, AKA JUDGE MADE LAW.[/quote] Yes, but if such a thing is unconstitutional, then such a thing is unconstitutional, whether or not elitists wish us to believe so or not. -----signature----- Six imams removed from a US Airways flight from Minneapolis to Phoenix are calling on Muslims to boycott the airline. If only we could get Muslims to boycott all airlines, we could dispense with airport security altogether.
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Obi-Wan McCartney Registered: Aug '99	Date Posted: 10/14/05 3:27pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort.
	Iman posted: Congress can't abridge free specch; there is nothing in the Constitution that claims everyone else, including theatre owners, cannot abridge free speech on their property. I see. So that means that the police have no authority to arrest protesters in Washington D.C. who are not protesting in accordance with relevant law? So all libel/defamation laws are void? Iman posted: Perhaps if legally trained persons weren't trained by liberal activists, there would never be such a problem. Constitutionalists also aren't claiming there is no room for interpretation; the fifth amendment, for instance, prohibits cruel and unusual punishment. Cruel and unusual punishment could include the death penalty, but it might not. This would be a matter for judges to investigate if such a case ever occasioned to do so. So you admit there are ambiguities in the law that must be determined by judges. That's good. Iman posted: I just mentioned one instance where ambiguity exists, and there are many others. The dilemma is that political activists are using this ambiguity to cross a well-drawn border and writing personal morality into the Constitution. Yes, I understand this is your problem. But judges write legal standards for following the law, they always have, they always live, no matter how conservative an originalist you have on the courts. Judges craft these 3 prong standards all the time, or other kinds of legal standards to fill in the gaps in existing laws. Iman posted: And what it doesn't protect is delegated to the democratic process; if the Founding Fathers really intended for a small group of unelected people to control the policy of what was supposed to be the beacon of freedom in the world, there would have been mass hysteria at the convention and heated debate about handing almost absolute power to one branch. -Again, you go too far. No one believes the judiciary has absolute power. Iman posted: Freedom of speech had already existed, but they felt the need to write it in words. Why? And if the Founding Fathers wanted to imply any rights that they felt were necessary, wouldn't they have included those rights in writing? You're speaking of an inalienable right you believe is paramount to the human race, yet it can be found no where in the Constitution except by liberal activists who share what we are supposed to believe a connection with the Founding Fathers and have the powers to infer and discover hidden rights secretly bestowed to us by James Madison. If I hadn't been confronted with such a ridiculous theory for so long, I would think this came out of a Dan Brown conspiracy novel. Yes it can, within the text of the 1st, 4th, 5th, and 9th amendments. Iman posted: All of the "Miranda Rights" already existed in the plain text of the Constitution; there was no interpretation to consider other than the judges thought, personally and morally, that people should get to know what is in the Constitution before they say anything. Exactly my point, but the judges still crafted new law in this case by making this a requirement. They interpreted the amendments, and determined that there was an impied right that a person be informed of these rights before being subject to custodial interrogation. This isn't a written requirement of the constitution, but the judges made new law. In this case, the judges DID invent law, and rightly so, it was within their power. Iman posted: It's only considered ignorant if you want to bypass democracy to enact your own moral beliefs. If you want to do such a thing, then the term "interpretation" is your best friend. How can you post such a thing when you yourself brought up the example of the cruel and unusual punishment? Come on man, try not to argue on autopilot. You don't have to disagree with everythign I say to the point where you contradict yourself. Iman posted: Very interesting, considering that applying all ofthe principles to the fullest extent wouldn't achieve the political results you and other liberal activists require. Many principles must be invented before they can be stretched. This is how activism of any kind can advance so far with so much time. Your opinion and you are welcome to keep it. Iman posted: No one is arguing that there is zero interpretation in a constitutionalist standpoint. Our concerns are based on writing new clauses on the basis of "interpretation." Exactly my point, why then did you take exception to the fact that I said SOME interpretation of the constitution is required? [quote=Iman]The Constitution, Article I, Section 1 posted: -------------------------------------------------------------------------------- All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. --------------------------------------------------------------------------------[/quote] -Yes, and article 3 sets up the judiciary. The judiciary was based on the English system of common-law, its the same system we have today, and then, just as now, just as tomorrow, common-law = judge made law, which means judges have rulemaking powers, they can write new law. [quote=Iman]Actually, if the U.S. didn't want judge-made law, the Founding Fathers would have included that into the Constitution. Oh, wait! They did! They specifically state all legislation is to be done by the Congress. Notice the word "all." Not some. Not most. All. Or did James Madison imply to you that the Constitution says: [/quote] Again, you are quite simply not aware or not informed about our system of jurisprudence. The judiciary has always had the ability to make law, but it is not the same way the legislature makes laws. The legislature makes WRITTEN law, they codify written laws. However, the judges still have the ability to make rulings which are legally binding, which set standards, this is called COMMON law. You are getting legal concepts confused. No one is saying the Judiciary can legislate. They cannot. However, as part of the function of the judiciary, the system of law we inherited from England, Judges have a lawmaking function. I know this is tough for many of you to grasp, but I promise you, its true. Ask any attorney, ask anyone who has studied constitutional law in any capaicity. [quote=Iman]Yes, but if such a thing is unconstitutional, then such a thing is unconstitutional, whether or not elitists wish us to believe so or not.[/quote] Such a thing is not unconstitutional. You seem to be forgetting one simple fact: The founders were around when the country was started. Some of them, like Jefferson, may have been unhappy with the fact that the Judciary assumed the ability to invalidate congressional laws, but hey, that's how it went, the judiciary serves as a check on the legislature. The legislature is beholden to public at large, but sometimes the majority may want to do things that are unconstitutional. It is up to the Judciiary to serve as a check. But getting back to the point. James Madison, Jefferson, Adams, Franklin, Washington, all these founders set up the constitution and recognized the judiciary. The judiciary, the COMMON LAW judiciary, has been making laws ever since. Since the beginning, since before the founders were born, since after they died. Did they try and stop this? Did they try and institute a french system of jurisprudence where judges don't have such powers, as LA did? No. The federal judciary was always based on the british system. Judges can make law, just not in the way you seem to think I am saying. It is true they cannot LEGISLATE. They can't invent laws out of thin air. But judges must decide cases based on the laws and the constitution. In determining how to handle a case, they make a decision. That decision is called PRECEDENT. That precedent, is legally binding and is in essence, new law. Sometimes judges indicate they do not wish this case to have precedential value. Sometimes higher courts do not follow the precedents of lower courts, and the lower court law is invalidated. Try and understand the difference. -----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-SHREDDER Registered: May '05	Date Posted: 10/14/05 3:36pm Subject: RE: The Nature of the American Constitution. Revised for your Comfort. - Date Edited: 10/14/05 3:36pm (1 edits total) Edited By: DARTH-SHREDDER
	Kimball_Kinnison posted: DARTH-SHREDDER posted: Then tell me this:why do people always talk about the constitution says this and that for gay marriage and things like that.... To use gay marriage as an example: The question is whether or not Congress has the authority under the Constitution to pass the Defense of Marriage Act. The question also is whether the Constitution requires one state to recognize a gay marriage performed in another state, or whether it allows marriage laws (defining marriage as between a man and a woman) as they are currently written. The question before the courts isn't whether it is right or wrong, but whether it falls within the powers granted by the People to the government. Kimball Kinnison Ok, but since the constitution doesn't talk about gay marriage, how can that decision be made? It can't be made purely from the consitution, and that just proved my point. You say we should follow the coinstitution's laws as they were written, but if the constitution doesn't talk about something, what do you do? You can't follow the constitution strictly, because new things happen, that the constitution as it was didn't know of, and that constitution wasn't built for these new issues. -----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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