Constitutional right to privacy a figment of imagination

Houston Chronicle ^ | January 15, 2005 | JUDGE HAROLD R. DEMOSS JR.

[Dead Corpse]

You, and the courts, are wrong.

The BoR is broad, pertains to Individual Rights, and needs no incorporation. The very idea would be laughable if it weren't for the fact that so many self described "Constitutional scholars" by into such a delusion.

[Conservative Goddess]

You have the right to use that which you can provide for yourself. That includes the God given right to use a gun if you can buy it for yourself. My right to self-defense begins and end with what I can afford to use. It is not dependent on instrumentality.

[Conservative Goddess]

Take that argument to the Supreme Court and see how far you get.

The first step in changing that which you find repugnant is to admit the current state of affairs. Only then can you engage in any meaningful attempt to construct an argument sounding in the original documents to persuade the Supremes.

Petulant repetition of that which you believe to be true, without any support whatsoever, will get you nowhere.

[Dead Corpse]

I'm well aware of exactly how far off track our current legal system is, your condescention notwithstanding.

It has nothing to do with what I "believe", the words of those who passed the BoR are there for all to read.

Something I would encourage you to do before opening your pie hole on this issue again.

[Conservative Goddess]

I'm reading it......perhaps you should take your own advice and READ instead of PRESUME what the Founders had to say. From, August 13, 1789, when the HOR was discussing bringing the Amendments up for a vote:

"....Mr Smith.......For his part, he could not conceive of the necessity of going into any alterations OF THE GOVERNMENT until the government itself was perfected."

Frank admission that the BOR was intended to modify the fledgling FEDERAL Government. There was no mention of impact on the state governments.

More from August 13, 1789.. http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=368 James Madison...."....I wish the subject well considered, but I do not wish to see any unnecessary waste of time; and the Gentlemen please remember that this subject has yet to go before the Senate.

I admit, with the worthy gentlemen who preceded me, that the great number of the community are solicitous to see the Government carried into operation; but I believe there is a considerable part also anxious to secure those rights which they are apprehensive are endangered by the present Constitution." [Note, not rights endangered by the states, but rights endangered by the Constitution.]

....

"Mr. Page was positive the people would never support the Government unless their anxiety was removed. They, in some instances adopted it, in confidence of it being speedily amended; they will complain of being deceived unless their expectations are fulfilled. So much time has elapsed since the subject was first brought forward, that the people will not think us serious, unless we now set about an complete it.

He begged consideration of the citizens, who were anxious for the amendments; if these had been added to those who openly opposed the Constitution, it possibly might have met a different fate. Can the Government, made under these circumstances, possess energy, as some gentlemen propose? Is not the confidence of the people absolutely necessary to support it?"

From the foregoing it is clear.......the BOR was adopted to quiet the fears that the Federal Government would be too powerful. At no time was there any suggestion that the BOR was adopted to impact the operation of the states. The BOR modifies the US Constitution....and only the US Constitution.

Read Federalist 84, found here, which explains that not only was a BOR unnecessary to the work of the convention, but DANGEROUS: http://patriotpost.us/fedpapers/fed_84.html Previous posters on this thread seem to want to want it both ways.....that the Second Amendment guarantees their right to keep and bear, and also keeps the states from interfering with that right. NONSENSE. Neither is true from a historical perspective. We never ceded the right. The Second amendment is superfluous, and the BOR in total or in part, was never intended to apply to state governments.

[Tarkin]

Ehhh, can you show a single situation in which that is not the case?

I repeat this question once again.

Weird reply.. What exactly in Barron do you imagine supports your theory that "Whenever the Constitution restricts the power of the states it explicitly mentions that the restriction applies to the states"?

Well I just posted it didn't I?

"In every inhibition intended to act on state power, words are employed, which directly express that intent"

In other words. In every restriction on state power, words are used, which directly express the intent to restrict the states. Whenever the Constitution limits state power it explicitly says "No state shall" etc. etc. Whenever it uses general language it restricts the federal government. This opinion was explicitly expressed by the SCOTUS in Barron and never overruled or even ever questioned by a SINGLE Supreme Court Justice.

The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws.

These are just examples. Section 9 applies only to federal government even though it uses general language (except for the first paragraph). Section 10 applies to the states because it explicitly says that it applies to the states.

Is it your point that they should have explained that bit of reasoning when writing the BOR's to spare us confusion?

Well, you are confused. Certainly the Supreme Court wasn't confused when it said:

"(...) in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason."

There is no reason to believe that the framers of the Amendments departed from that clear distinction which is used in Sections 9 and 10.

[Tarkin]

This court has said that, in prosecutions by a state, the exemption will fail if the state elects to end it.

This court has ruled that consistently with those amendments trial by jury may be modified by a state or abolished altogether.

You're absolutely right of course. But some people don't like facts to get in their way.

[Dead Corpse]

Keep reading, the page you linked to dealt with the Federal Judiciary. The next couple of pages talk about the Amendment process and its proper scope and verbiage. There was some dissent as to even having an Amendment process to begin with and this is what they are discussing.

Keep reading.

As for the Federalist, the matching "Anti-Federalist" holds and equal and opposite view.

Further, if the Federal power didn't extend to be superior to the States powers in these regards, how could those Rights protected by the States been "endangered" in any meaningful way? In point of fact, they were fully cognizant that the Federal government in it's powers, duties, and protections for our Rights, were SUPERIOR to the members States. That is why they went to such lengths to ensure that those Federal powers were strictly defined and limited.

At least, they were. It is indefensible to say that our current form of government in any way conforms to the Constitution accept in the most superficial ways.

Click here... lower left hand column...

"This will certainly be attended with great inconvenience, as the several States are bound not to make laws contradictory thereto, and all officers are sworn to support it, without knowning precisely what it is." Refering to the various purposed Amendment process and the confusion that could be attendant with chosing the wrong one.

This isn't an isolated reference, but one that is brought up time and again.

[robertpaulsen]

"You have the right to use that which you can provide for yourself."

Ah, no. Maybe in your opionion, sure. But it's not a constitutional fact. The state in which you live decides what weapon, and under what circumstance, you may employ for self defense.

Are you familiar with these cases?

[Protagoras]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

If this isn't a guarantee of privacy, what is?

It only goes as far as certain kinds of searches and hinges upon the definition of "reasonable". Any other methods of detection not covered above could still compromise privacy. Therefore, I submit that it is not, in and of itself, a guarantee of "privacy".

In times of war and the terrorist threat, we do have to be rational. I support the President when it comes to monitering the phone calls to and from potential terrorists. The stakes are too high not to.

So one one hand, you think there is an absolute right but on the other think that it can be broken under certain circumstances which remain ambiguous. That's an interesting divergence.

[don asmussen]

DC observed, as have many here:

"-- The BoR is broad, pertains to Individual Rights, and needs no incorporation. The very idea would be laughable if it weren't for the fact that so many self described "Constitutional scholars" buy into such a delusion. --"
401 Dead Corpse

Take that argument to the Supreme Court and see how far you get.

Exactly. That is one of the points here made by everyone. Our USSC is ignoring one of the most important of our individual freedoms, our RKBA's.

The first step in changing that which you find repugnant is to admit the current state of affairs.

Who here denies that the "current state of affairs" is repugnant? Petulant repetition that your opponents do not understand 'currant affairs' is counterproductive.

Only then can you engage in any meaningful attempt to construct an argument sounding in the original documents to persuade the Supremes.

That's what FR is all about, imo; we are here trying to construct an argument based on our founding documents, one that persuades all levels of government, and all branches of those governments, to restore the Constitution and its Amendments as our supreme" Law of the Land".

Petulant repetition of that which you believe to be true, without any support whatsoever, will get you nowhere.

Works both ways goddess. You repeat your beliefs and cite your supposed supports quite petulantly, -- remarked upon by many here.

--- the BOR was adopted to quiet the fears that the Federal Government would be too powerful. At no time was there any suggestion that the BOR was adopted to impact the operation of the states.

Throughout the congressional record we see that protecting the individual rights of the people was of primary concern.--
-- It stands to reason that if your State is bound to protect your RTKBA's by its Constitution, and that same protection is also adopted in the US Constitution, [which all States must support as supreme law] then between the two protections checks & balances would insure that no infringements would occur.
This is not happening, as we see in States like California & New York, in part because majorities of people, people like you, insist that States can ignore our RKBA's..

The BOR modifies the US Constitution....and only the US Constitution.

So you insist. Why?

Previous posters on this thread seem to want to want it both ways.....that the Second Amendment guarantees their right to keep and bear, and also keeps the states from interfering with that right. NONSENSE.

Why is it "nonsense" to demand that all levels of government in the USA honor our Constitution?

Neither is true from a historical perspective.

Repetitive begging of the issue.

We never ceded the right.

Exactly. - 'We the People' have never ceded our inalienable RKBA's to any level of government.

The Second amendment is superfluous, and the BOR in total or in part, was never intended to apply to state governments.

Irrational conclusion considering you just admitted that "We never ceded the right". -- Correct?

[Dead Corpse]

Mr. LAWRENCE. Only a few words will be necessary to convince us that Congress have this power. It is declared by the Constitution, that its ordinances shall be the supreme law of the land. If the Constitution is the supreme law of the land, every part of it must partake of this supremacy; consequently, every general declaration it contains is the supreme law. But then these general declarations cannot be carried into effect without particular regulations adapted to the circumstances: these particular regulations are to be made by Congress, who, by the Constitution, have power to make all laws necessary or proper to carry the declarations of the Constitution into effect. The Constitution likewise declares that the members of the state legislatures, and all officers, executive and judicial, shall take an oath to support the Constitution. This declaration is general, and it lies with the supreme legislature to detail and regulate it.

Elliot's debates Vol 4.

[don asmussen]

Conservative Goddess:

"You have the right to use that which you can provide for yourself."

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

paulsen misinforms on Constitutional fact:

Ah, no. Maybe in your opionion, sure. But it's not a constitutional fact.

The state in which you live decides what weapon, and under what circumstance, you may employ for self defense.

Cite your source paulsen.. You've made up a totally speculative bit about State powers.
We the people have never ceded such powers to any State.

In fact, if Illinois had made such a repugnant 'law' in their original Constitution, I doubt they would have been admitted to the Union..

[mississippi red-neck]

Congress makes federal law. Read a book.

Of course they do but they are binding on the people of individual states which is something that seems to be beyond your mental ability to grasp.

If you think different try not paying your federal income tax and see whats happens.

BTW you should take your own advice. Try reading some of those books you want others to read instead of counting them or using them to stand on to change light bulbs.

[don asmussen]

Good find.

Needless to say, it will be ignored, as Article VI always is; -- because it totally upsets the 'states rights' applecart.

[Conservative Goddess]

The link should lead you to page 734....where Madison, a FEDERALIST, argued that the BOR modified the Federal Constitution. The question presented, over and over in this thread, was whether the BOR applied to the states. Clearly, under the original intent, it was not so intended. As I read this work (Thanks for the link) it is readily apparent that the Framers were only concerned with securing the rights of the people against real or imagined encroachments of the FEDERAL government.

As a member of the Federalist Society, that the Anti-federalist papers took the opposing view with respect to a BOR is not meaningful to me. They made some good arguments, but history has shown the folly of their "injudicious indulgence and zeal for a BOR."

Many of the problems and misapprehensions of the electorate flow from the notion that only those rights that are enumerated are held by the people---precisely the misapprehension of which the Federalists warned. The Federalists were brilliant and prescient men....practically foreseeing the day the Supreme Court would resort to examining the emanations of the prenumbras of the BOR to "FIND" a right of privacy. Utter nonsense. And so-called conservatives think that in order to overturn Roe v. Wade, we have to reliquish our right of privacy. That level of ignorance is inexcusable. But is is precisely because the Supreme Court resorted to that contortion, that it has reinforced the belief that we are dependent on the BOR for our rights.

While you correctly state that the powers of the Federal Government were narrowly defined, You mis-apprehend the quote from the Congressional record.....It cannot mean that the Federal Government is superior in all realms. Because the federal powers were narrowly defined, it follows that the spheres of influence of the Feds and States were not necessarily overlapping. Federal law is only superior within those narrowly defined areas. States are sovereign in areas where the Fed has no authority to act. A blanket statement that Federal Law was to be superior, is therefore incorrect. The fear of the Federal government at the time of the Founding was palpable; some would say even unreasonable.

Further, Madison believed any overreaching by the Feds would quickly be quelled by the jealous attachment of the people to their local governments. Federalist 46 is directly on point: http://patriotpost.us/fedpapers/fed_46.html

"...The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt that the first and most natural attachment of the people will be to the governments of their respective States...."

In Federalist 46, Madison further observed: "...It has been already proved that the members of the federal will be more dependent on the members of the State governments, than the latter will be on the former. It has appeared also, that the prepossessions of the people, on whom both will depend, will be more on the side of the State governments, than of the federal government. So far as the disposition of each towards the other may be influenced by these causes, the State governments must clearly have the advantage...."

With the ratification of the 16th and 17th Amendments, the incorporation doctrine controversy borne of the 14th, etc......we have significantly expanded the influence of the Federal Government over that which the Founders originally envisioned. I would argue that it was a positively ludicrous acquiescence. That was our right, but it does not mean that it was wise and I do agree that our current Constitutional order bears little resemblance to that envisioned by the Founders.

[don asmussen]

What exactly in Barron do you imagine supports your theory that --- "Whenever the Constitution restricts the power of the states it explicitly mentions that the restriction applies to the states"?

Well I just posted it didn't I? "In every inhibition intended to act on state power, words are employed, which directly express that intent"

That is Marshall's opinion. It does not prove your point.

In other words. In every restriction on state power, words are used, which directly express the intent to restrict the states. Whenever the Constitution limits state power it explicitly says "No state shall" etc. etc. Whenever it uses general language it restricts the federal government.

Simply not so. -- Article VI expressly says that all of the Constitution is our supreme law, and that all of the States are bound by it, "notwithstanding" any State laws "to the Contrary".

This opinion was explicitly expressed by the SCOTUS in Barron and never overruled or even ever questioned by a SINGLE Supreme Court Justice.

The Barron opinion ignored Article VI. Marshall's erroneous 'decision' was then made mute by the 14th Amendment.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The only thing that remotely applies is your pointing out that both Sections 9 and 10 mention Bills of Attainder & ex post facto laws. -- Which were mentioned separately because the bill of rights was not contemplated at that point.
Is it your point that they should have explained that bit of reasoning when writing the BOR's to spare us confusion?

Well, you are confused.

Not really. You can't refute my reasoning above, so you're reduced to repeating your 'Barron' opinion bit:

Certainly the Supreme Court wasn't confused when it said: "(...) in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason."
There is no reason to believe that the framers of the Amendments departed from that clear distinction which is used in Sections 9 and 10.

There is no reason to believe that the framers of the Amendments departed from the clear words of Article VI which bound States to support all of our supreme law.

[Conservative Goddess]

You are confusing possession of the right, with enforcement of the right, with Federal or State recognition of the right. That it is not recognized, does not mean you do not possess the right or that you may nto enforce the right. In states where the right is not recognized, it will involve a protracted legal battle. If this poor sap is lucky, he'll make it the Supreme Court and press for the incorporation of the 2nd via the 14th.

The argument made on this thread has been that the 2nd Amendment applies to the states, via incorporation doctrine. That is false. And the case you just linked to proves it false. The Second Amendment recognizes your right to keep and bear against Federal Action. The State Constitutions protect you against STATE action. Illinois apparently has draconian gun control laws and an inadequate state Constitution. It is up to the people of Illinois to rectify the deficiency in their Constitution. It is not up to the Federal Government to dictate to the people of Illinois.

Don't let the fact that this case involves the right to keep and bear cloud your judgment. Don't lose sight of the broader consequence of inviting the Feds to dictate to the state.

This would probably be a good test case, if they can take this to the Supremes...and get them to grant cert.

[steve-b]

a national referendum

Where in the Constitution does this guy find authorization to conduct a national referendum?

[steve-b]

A mere nine months after the 14th was ratified, the USSC ruled in Twitchell v. Pennsylvania that the Bill of Rights restricted only the federal government, not the states. Nobody mentioned the 14th Amendment.

Judicial Activism wasn't invented in the 1970s. Duh.