I not surprised by anything, any more...
Posted on 02/20/2005 12:11:51 AM PST by P_A_I
From Powers to Rights, a Conservative Vision
-- Clearly, the American debate began with rights--with the protests that led eventually to the Declaration of Independence.
And in that seminal document, Jefferson made rights the centerpiece of the American vision: rights to life, liberty, and the pursuit of happiness, derived from a premise of moral equality, itself grounded in a higher law discoverable by reason--all to be secured by a government of powers made legitimate through consent.
But when they set out to draft a constitution, the Framers focused on powers, not rights, for two main reasons.
First, their initial task was to create and empower a government, which the Constitution did once it was ratified. But their second task, of equal importance, was to limit that government.
Here, there were two main options. The Framers could have listed a set of rights that the new government would be forbidden to violate. Or they could have limited the government's powers by enumerating them, then pitting one against the other through a system of checks and balances--the idea being that where there is no power there is, by implication, a right, belonging to the states or the people.
They chose the second option, for they could hardly have enumerated all of our rights, but they could enumerate the new government's powers, which were meant from the outset to be, again, "few and defined.'' Thus, the doctrine of enumerated powers became our principal defense against overweening government.
Only later, during the course of ratification, did it become necessary to add a Bill of Rights--as a secondary defense. But in so doing, the Framers were still faced with a pair of objections that had been posed from the start. First, it was impossible to enumerate all of our rights, which in principle are infinite in number.
Second, given that problem, the enumeration of only certain rights would be construed, by ordinary methods of legal construction, as denying the existence of others.
To overcome those objections, therefore, the Framers wrote the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.''
Constitutional Visions
Thus, with the Ninth Amendment making it clear that we have both enumerated and unenumerated rights, the Tenth Amendment making it clear that the federal government has only enumerated powers, and the Fourteenth Amendment later making it clear that our rights are good against the states as well, what emerges is an altogether libertarian picture. Individuals, families, firms, and the infinite variety of institutions that constitute civil society are free to pursue happiness however they wish, in accord with whatever values they wish, provided only that in the process they respect the equal rights of others to do the same; and governments are instituted to secure that liberty and do the few other things their constitutions make clear they are empowered to do.
That picture is a far cry from the modern liberal's vision, rooted in the Progressive Era, which would have government empowered to manage all manner of economic affairs.
But it is a far cry as well from the modern conservative's vision, which would have government empowered to manage all manner of social affairs. Neither vision reflects the true constitutional scheme. Both camps want to use the Constitution to promote their own substantive agendas. Repeatedly, liberals invoke democratic power for ends that are nowhere in the Constitution; at other times they invoke "rights'' that are no part of the plan, requiring government programs that are nowhere authorized.
For their agenda, conservatives rely largely on expansive readings of democratic power that were never envisioned, thereby running roughshod over rights that were meant to be protected.
Conclusion
America is a democracy in the most fundamental sense of that idea: authority, or legitimate power, rests ultimately with the people.
But the people have no more right to tyrannize each other through democratic government than government itself has to tyrannize the people.
When they constituted us as a nation by ratifying the Constitution and the amendments that have followed, our ancestors gave up only certain of their powers, enumerating them in a written constitution. We have allowed those powers to expand beyond all moral and legal bounds -- at the price of our liberty and our well-being.
The time has come to restore those powers to their proper bounds, to reclaim our liberty, and to enjoy the fruits that follow.
The United States is a Republic
Was there ever any doubt?
No it's not.
America is a Republic because the Founders knew that democracies never last, and they stipulated that the states maintain a Republican form of government.
If the writer can't get that basic part right what good is the rest of his article?
Great post. Finally the 9th amendment getting some much deserved air time!
...But it is a far cry as well from the modern conservative's vision, which would have government empowered to manage all manner of social affairs. Neither vision reflects the true constitutional scheme. Both camps want to use the Constitution to promote their own substantive agendas. Repeatedly, liberals invoke democratic power for ends that are nowhere in the Constitution; at other times they invoke "rights'' that are no part of the plan, requiring government programs that are nowhere authorized.
...For their agenda, conservatives rely largely on expansive readings of democratic power that were never envisioned, thereby running roughshod over rights that were meant to be protected....,/i>
These thoughts make sense to me... but I think the Republicrats are merging...
Yeah, it hasn't gotten much court time, that's for sure.
"Although Justice Goldberg rested his concurrence in Griswold v. Connecticut (the 1965 case declaring Connecticut's ban on contraceptives unconstitutional) on the Ninth Amendment, the amendment has formed the basis of few decisions since then." Judge Robert Bork said in his failed 1987 confirmation hearing, that the Ninth Amendment was nothing more than an "inkblot" on the Constitution.
Strict constructionists hate the Ninth. It is more often used by liberal judges to find some "right" (ie., right to an abortion, right to sodomy, etc.) when all other legal arguments fail.
Frankly, I get a little nervous about all the time that Bush the Elder and Evil Willie are spending together.
Libertarian?
The 14th amendment, for example, made the 1st amendment applicable also to the states. Even though the Founding Fathers were very clear when they wrote the 1st amendment, "Congress shall make no law ...".
Hey, screw the intent of the Founding Fathers, right? We know how to construct a judicial oligarchy.
To wit. Now when the USSC says the 1st amendment means "X" or protects "Z", why, that ruling applies to the laws of each and every state, not just federal laws.
Nude dancing, flag burning, hate speech, political speech, the Confederate Flag, pornography ... all defined by 5 justices sitting on the USSC. And whatever they say applies to each and every state.
Gone are the days when each state (this used to be a Republic) protected and defined speech. When each state decided if we can say "God", or put up a Nativity scene in the public square, or display the Ten Commandments.
No. The USSC now sets those rules for all of us.
Thank you, 14th amendment.
I not surprised by anything, any more...
Say it with me now - "Founding Fathers"! Sorry, feminists, liberals, and revisionists everywhere, but they were in fact, MEN! Get over it already.
This is a long article, well worth reading.. It ends:
Conclusion
"America is a democracy in the most fundamental sense of that idea: authority, or legitimate power, rests ultimately with the people.
But the people have no more right to tyrannize each other through democratic government than government itself has to tyrannize the people.
When they constituted us as a nation by ratifying the Constitution and the amendments that have followed, our ancestors gave up only certain of their powers, enumerating them in a written constitution. We have allowed those powers to expand beyond all moral and legal bounds -- at the price of our liberty and our well-being.
The time has come to restore those powers to their proper bounds, to reclaim our liberty, and to enjoy the fruits that follow."
_____________________________________
America is a Republic because the Founders knew that democracies never last, and they stipulated that the states maintain a Republican form of government.
If the writer can't get that basic part right what good is the rest of his article?
Noachian
Thanks for the reply.. -- As we see, the ninth scares some self-described conservatives on this site.
Obviously, our unenumerated rights need to be discussed, -- not feared.
I agree.
Democracy is three wolves and a sheep discussing what's for lunch......
"We are all Republicans and we are all Federalists."
-A. Hamilton
"...For their agenda, conservatives rely largely on expansive readings of democratic power that were never envisioned, thereby running roughshod over rights that were meant to be protected....,"
These thoughts make sense to me... but I think the Republicrats are merging...
6 pageonetoo
Yeah, it hasn't gotten much court time, that's for sure.
"Although Justice Goldberg rested his concurrence in Griswold v. Connecticut (the 1965 case declaring Connecticut's ban on contraceptives unconstitutional) on the Ninth Amendment, the amendment has formed the basis of few decisions since then." Judge Robert Bork said in his failed 1987 confirmation hearing, that the Ninth Amendment was nothing more than an "inkblot" on the Constitution.
Judge Bork is an inkblot on judicial history.
Strict constructionists hate the Ninth.
Not true. Every rational man recognizes that all of our rights cannot be enumerated.
It is more often used by liberal judges to find some "right" (ie., right to an abortion, right to sodomy, etc.) when all other legal arguments fail.
Our right to be left alone, our right to privacy, is a perfect example of an unenumerated right. One much feared by those who live to control, -- socialists & prohibitionists.
Libertarian?
The 14th amendment, for example, made the 1st amendment applicable also to the states. Even though the Founding Fathers were very clear when they wrote the 1st amendment, "Congress shall make no law ...".
Yep, the 1st was clear that Congress could not "respect an establishment of religion". -- But Article VI made it clear that the Constitution & ALL of its Amendments were the "Law of the Land", not to be infringed upon by States, or officials at ANY level of government in the USA.
Hey, screw the intent of the Founding Fathers, right? We know how to construct a judicial oligarchy.
'Inkblot Bork' made that same inane point.
To wit. Now when the USSC says the 1st amendment means "X" or protects "Z", why, that ruling applies to the laws of each and every state, not just federal laws. Nude dancing, flag burning, hate speech, political speech, the Confederate Flag, pornography ... all defined by 5 justices sitting on the USSC. And whatever they say applies to each and every state.
Get real paulsen. When our system is working properly, the inherent checks & balances negate excesses. -- Granted, the 'two party' socialistic system you love is not working.
Gone are the days when each state (this used to be a Republic) protected and defined speech. When each state decided if we can say "God", or put up a Nativity scene in the public square, or display the Ten Commandments.
Yep, now we have States prohibiting guns.. With the approval of the Feds. What prohibitions are next?
No. The USSC now sets those rules for all of us. Thank you, 14th amendment.
The 14th could be the basis of a USSC 'ruling' that finally ends infringements on our 2nd Amendment. This possibility terrifies the socialists & prohibitionists in our midst.. As well it should.
Sure. Great. Right to Privacy. Whoopee!
And how was that federal right to privacy applied by the courts? Yep. To order contraceptives, to murder the unborn, and for homosexuals to have anal sex. That's it.
How fricken noble! Oh where would this nation be, I ask you, without your precious Ninth amendment supposed "right to privacy"?
Give me one example, just one, where the Ninth amendment has been used in a conservative fashion. It hasn't. It's a tool of the liberal judges. And they ain't done.
That's exactly correct. That's what the Founding Fathers created.
The 14th amendment destroyed it.
You ignorant fool.
The USSC could very easily rule that the second amendment does not protect an individual RKBA. Every single lower federal court (save the one ruling by the 5th Circuit) has ruled that it is a collective right, NOT an individual right.
Right now, your RKBA is defined and protected by your state constitution. You want to turn the protection of that right to the federal government? Are you crazy? What in the wide world of sports makes you think that the USSC will interpret the 2nd amendment the way you want?
They may rule that it doesn't protect handguns (numerous lower courts have so ruled). They may rule is doesn't protect concealed carry (some lower courts have so ruled).
Look what the USSC did to political speech. Religion. Search and seizure. Asset forfeiture.
Oh, but robertpaulsen, they'll come to their senses when they interpret the 2nd amendment.
And I know exactly what you're going to say next. And you're crazy for saying it.
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