[Hank Kerchief]

Book Review

[Hank Kerchief]

PHILOSOPHY PING

(If you want on or off this list please freepmail me.)

Hank

[patriot_wes]

WHY CARE WHAT THE CONSTITUTION SAYS?

Yea...if we did care we wouldn't have the IRS or the federal reserve or CFR or.......

[Smartass]

The United States Constitution has been prostituted by
a liberal-left-wing judiciary. When and if our wimpy
congress decides to hold them accountable, it will get
even worse! I'm for federal judges given a report card
Three strikes and their out. Presently, there is a huge imbalance of the separation of powers.

[Richard Kimball]

I know some Freeps don't like him, but Robert Bork's The Tempting of America: The Political Seduction of the Law" should be required reading.

[lilylangtree]

Most judges don't give a kitty what's in the Constitution and more than likely have never read the Constitution.

[Clint Williams]

1st Amendment: dead (religion and free speech)
2nd Amendment: long since dead
3rd Amendment: alive
4th Amendment: recently deceased (warrantless "safety" searches)
5th Amendment: dead from multiple causes
6th Amendment: critical (SCOTUS is reconsidering Hearsay Exceptions>
7th Amendment: condition uncertain
8th Amendment: condition uncertain
9th Amendment: died with the 10th
10th Amendment: died with the 9th

So what's the fix?

[tpaine]

The author, imo, -- 'buries' his points:

______________________________________


"I contend that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone; --

-- and one that lacks adequate procedures to protect natural rights is illegitimate even if it was consented to by a majority.



Are all restrictions on the liberties of the people to be presumed constitutional unless an individual can convince a hierarchy of judges that the liberty is somehow "fundamental"?

Or should we presume that any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper?

The first of these is called "the presumption of constitutionality."
While this construction has never been accepted in its entirety, the exceptions that have been created to it are revealing in the way they run afoul of the text.

The second of these constructions may be called the Presumption of Liberty, which can provide a practical way to restore the lost Constitution."


_____________________________________



Fine.. I too can agree:

"that if a constitution contains adequate procedures to protect these natural rights, it can be legitimate even if it was not consented to by everyone; --

But object that if:

"-- any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper --- "

-- As it is not only up to the judges, -- but to fully informed juries of our peers to decide if our liberties are unconstitutionally restricted, in the particular case at hand.



--- All trials should be held under a "Presumption of Liberty" doctrine, which really could "provide a practical way to restore the lost Constitution."

Do you know if the author even addresses the role of juries in setting constitutional precedence?

[Unknowing]

"Or should we presume that any restriction on the rightful exercise of liberty is unconstitutional unless and until the government convinces a hierarchy of judges that such restrictions are both necessary and proper?"

Yes, restrictions if and only if necessary to further a compelling proper governmental interest.

The only proper governmental interest as I recall, is to secure the unalienable rights and the blessings of liberty for the governed, with the consent and participation of those governed.

So, IMHO, restrictions on liberty are fine, but only if such restrictions are compelling, and only if they would actually help further secure our rights and enlarge the scope of liberty for everyone.

Restrictions beyond this narrow exception illegally countermand the Constitution and Declaration of Independence -- they tyrannically countermand fundamental American law.

Therefore, most of the accrued "legal" restrictions on our liberty will have to be repealed or held void.

[RightWhale]

This debate never ends. There is always somebody that wants to change or ignore the Constitution, or misread it to suit the issue of the moment. These interpreters come from the Left, the Right, the Bush Moderate Compassionate Middle, and radicals at anarchists' secret meetings in suburban basements.

When the Constitution goes, the country will go with it.

[An.American.Expatriate]

I don't mean to be picky, but considering all the copyright problems we've been having, maybe we need to check this again . . .

COPYRIGHT NOTICE: Published by Princeton University Press and copyrighted, (c) , 2004 by Princeton University Press. All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher, except for reading and browsing via the World Wide Web. Users are not permitted to mount this file on any network servers. For more information, send mailto:permissions@pupress.princeton.edu

[budwiesest]

Unless we openly confront the question of its legitimacy, we cannot respond to those who would replace it with something they think is better.

Aren't ammendments attempts at making it 'something better'?

If it's legitimate with the first ten ammendments, I'd say fine, and dump the rest while making subsequent ammendments null and void.(which is scarier, prohibition or women voting?)

[lodwick]

Thanks for this post.

[supercat]

I think few people realize the purpose of the Constitution. It wasn't just to inform those in power what they 'should' do, but it was also intended to provide people an 'insruction manual' for their government, so that in case of a conflict between some individuals and government personnel, the public would know whose side to be on. Unfortunately, this function has been largely lost.

[djf]

Good article. My experience seems to indicate that to understand the Constitution, you have to put yourself in the shoes of those who wrote it, and those around them.

Remember that at the time of the writing, there were still many indentured servant types. And the English style of learning an occupation, by becoming a journeyman for many years, was well understood.

The English law at the time was trying to establish debt actions by assumpsit, which the founders totally rejected, and they were hostile to the notion of maritime law acting on the colonies.

The Constitution, as written, was really almost a compromise, set up to show a united front against potential hostiles, notably the English, the French, and the Spanish.

It was never meant to give police powers to the federal government, or act directly on the Citizens of the states.

[archy]

From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost.

Sorta overlooked one in there in that comprehensive, scholarly listing, didn't he? A hint: beteen the First and Third Amendments....

[Warlord David]

Now all that is need is a death certificate, to make it offical. Does anyone have a blank one laying around?

Its been fun why it lasted. See yall, on the other side of chaos.

[NMC EXP]

The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted constitution creates islands of liberty rights in a sea of governmental powers

It was a fine plan but like Joe Sobran said:

"The Constitution poses no serious threat to our form of government."

Regards

J.R.