Posted on 10/23/2006 5:03:34 PM PDT by JTN
Yada yada.
Sir Francis and others will resort to name calling and/or making rude and condescending comments towards those with whom they disagree.
Sir Francis said:
You are a villain.
The rights of the dopers do not take priority over those of the sane people trying to make a living or the little kiddies at school.
The dopers, like the sex perverts, can only perpetuate an ever increasing market to support their filthy habits by molesting the minds and bodies of the young ones.
Thank you for proving my point Sir Francis
Nonsensical, repetitious, and boring. I think you've finally distilled your message down to the essential. Stick with that, its a big time saver for the rest of us.
Rights and Power
The salus populi principle that the legislature can do anything it wants, unless expressly forbidden by the Constitution, has always rested upon a somewhat shaky foundation.
For a nation founded on the notion that the Constitution is the supreme law, binding even legislatures, the claim that the public good--as determined by the legislature--is in fact the Supreme Law raises troubling questions.
Certainly it is a view that the Framers would have regarded as controversial.
In the words of Justice Joseph Story:
"-- Whether, indeed, independently of the constitution of the United States, the nature of republican and free governments does not necessarily impose some restraints upon the legislative power, has been much discussed.
It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the trancendental sovereignty to take away vested rights of property; to take the property of A and transfer it to B by a mere legislative act.
A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty, and private property should be held sacred.
At least, no court of justice, in this country, would be warranted in assuming, that any state legislature possessed a power to violate and disregard them; or that such a power, so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied from any general expression of the will of the people, in the usual forms of the constitutional delegation of power.
The people ought not to be presumed to part with rights, so vital to their security and well-being, without very strong, and positive declarations to that effect. --"
In other words, courts should not sit idly by when the legislature takes property from A to give it to B.
Rather than asking "Does the Constitution expressly forbid such an act?" the courts, according to Justice Story, should ask, "Does the Constitution expressly allow such an act which is contrary to common law principles?"
Consider my post a rant directed at no one in particular. I wasn't implying that you were young.
Smoking pot, polygamy, and incest are vital to the American Peoples' security and well-being? This will shock you, but most (read "most all") don't agree. We could ask around or even take a vote to see if that's true, but I know how representatives deciding things like that gets you all in a tither. You seem to prefer judge shopping instead. I preferred "yada, yada".
My voice is in my sword and I will press my point like a blade. It has nothing to do with proving yours, as that matters little to me.
The dopers, like the sex perverts, can only perpetuate an ever increasing market to support their filthy habits by molesting the minds and bodies of the young ones.
Well don't get me wrong, I don't mind the idea of being young, I was just wondering if you had powers I should know about. ;) Out of curiosity, what in my #102 did you find that put me in with the libs?
Yes! Kill the infidels!
It has nothing to do with proving yours, as that matters little to me.
I think that is the main problem with these debates. One side usually refuses to take the other side's point into account. Nothing that we can say will change your mind. You have been told false information about things you know nothing about, and you refuse to admit it.
There is no point of view more important than not having some stoned idiot at work creating a danger for everyone else. The other side of that point is irrelevant...
I'm not settling for letting the states decide as any sort of retreat. I just don't see the federal role if a substance is produced and consumed within the confines of a single state, and does no harm to members of another state. Acting in a reasonable manner to prevent harm, and within the framework of the Constitution, the People have the right to elect Representatives that will pass the laws they desire for a workable society. Being wrong doesn't in itself make something a federal case.
There are many pitfalls in such an eventuality of wildly differing drug laws, and I think the states would soon realize this, but that doesn't change their authority to do so.
In short, federal power currently overreaches its Constitutional limits. The states have allowed this as a matter of practicality, but it is still an overreach which the states could take back.
I'm no fan of legalization, but my dog in this fight is against the argument that the criminalization of drugs is unconstitutional. The reverse is also true, there's nothing unconstitutional about legalization.
"---- Man in his natural state has the right to do whatever he chooses and has the power to do.
When he becomes a member of organized society, under governmental regulation, he surrenders, of necessity, all of his natural right the exercise of which is, or may be, injurious to his fellow citizens.
This is the price that he pays for governmental protection, but it is not within the competency of a free government to invade the sanctity of the absolute rights of the citizen any further than the direct protection of society requires . . . .
It is not within the competency of government to invade the privacy of a citizen's life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society.
[L]et a man therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his wickedness to himself, and does not offend against the rules of public decency, he is out of the reach of human laws . . . .
The theory of our government is to allow the largest liberty to the individual commensurate with the public safety, or as it has been otherwise expressed, that government is best which governs least.
Under our institutions there is no room for that inquisitorial and protective spirit which seeks to regulate the conduct of men in matters in themselves indifferent, and to make them conform to a standard, not of their own choosing, but the choosing of the lawgiver. . . .
. . ..
[W]e are of the opinion that it never has been within the competency of the Legislature to so restrict the liberty of this citizen, and certainly not since the adoption of the present Constitution.
The Bill of Rights, which declares that among the inalienable rights possessed by the citizens is that of seeking and pursuing their safety and happiness, and that the absolute and arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority, would be but an empty sound if the Legislature could prohibit the citizen the right of owning or drinking liquor, when in so doing he did not offend the laws of decency by being intoxicated in public.
THE EVOLVING POLICE POWER: SOME OBSERVATIONS FOR A NEW CENTURY, David Kopel, Glenn Reynolds
Address:http://www.davekopel.com/CJ/LawRev/EvolvingPolicePower.htm
Which brings us back to "who decides?" what injures society. There are only two choices. The People who through their representatives have every reason and motivation to make the correct decision OR judges. You've picked judges, because you want to have a temper tantrum that the People can be wrong.
You are so scared that the People will oppress you that you want to invite a "good king" to take over. That's as foolhardy as it is dangerous.
"--- We are not bound by decisions of the United States Supreme Court when deciding whether a state statute impermissibly infringes upon individual rights guaranteed in the State Constitution so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under the United States Constitution as interpreted by the United States Supreme Court.
Oregon v. Hass, 420 U.S. 714, 719 (1975).
The holding in Oregon v. Hass is:
"[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this [United States Supreme] Court holds to be necessary upon federal constitutional standards." [Emphasis original.]
Contrary to popular belief, the Bill of Rights in the United States Constitution represents neither the primary source nor the maximum guarantee of state constitutional liberty.
Our own constitutional guarantees against the intrusive power of the state do not derive from the Federal Constitution. The adoption of the Federal Constitution in 1791 was preceded by state constitutions developed over the preceding 15 years, and, while there is, of course, overlap between state and federal constitutional guarantees of individual rights, they are by no means identical. State constitutional law documents and the writings on liberty were more the source of federal law than the child of federal law. --"
From the link posted before;
"-- It is not within the competency of government to invade the privacy of a citizen's life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society. --"
Which brings us back to "who decides?" what injures society.
As I've said before, the 'People' have already decided, in both their State Constitutions, and in our federal 'Law of the Land'.
The People who through their representatives have every reason and motivation to make the correct decision
We been agreeing on that for quite some time.
OR judges. You've picked judges,
Not true.
because you want to have a temper tantrum that the People can be wrong.
You're mischaracterizing what I've written, --- that the People cannot enact & enforce unconstitutional prohibitions.
You are so scared that the People will oppress you that you want to invite a "good king" to take over.
Bizarre 'take' on my arguments. -- What can be said other than you must be dreaming about what I've been posting here..
That's just flat out the dumbest thing I've ever heard in reference to the prohibition/restriction of actions based on harm done to others. I assume that you accept that behavior that harms people can be prohibited or regulated. Murder, loud music, public sex acts? Maybe one of those would qualify for you?
Grab your head with both hands and try to get your mind around the central issue. It's not whether the majority gets to rewrite the Constitution with simple laws. You are seemingly incapable of understanding that I'm not arguing that point, because you keep making it to yourself over and over.
The question of "who decides" isn't "who decides whether we should regulate away people's rights without due cause" it is "who decides whether the action is causing other people sufficient harm to justify putting curbs on it?" Keeping in mind that the bar on unenumerated rights is lower than that on enumerated rights.
I might be giving you too much credit here, but I refuse to believe that you are as obtuse as you are pretending to be. You just don't want to answer the question, because it would destroy your argument.
So, who decides whether the action in question is causing other people sufficient harm to justify putting curbs on it?
3. Phase Three: Prohibition of Possession of Alcohol to 1915
At this stage of constitutional jurisprudence, criminalization of possession or consumption of alcohol or narcotics was arguably a deprivation of property without due process of law.
The first wave of prohibition cases had held only that the right to sell even previously acquired liquor was not an essential element of ownership.
They had not held that the state could forbid the essential attribute of ownership-the right to use.
In fact, many courts had expressly noted that alcohol was still a legitimate article of property.
Until 1915 the weight of authority was that it was beyond the police power to prohibit mere possession of alcoholic beverages unless the quantity Justified an inference that they were held for sale.
A few cases so held ;121 many courts so stated in dictum, while holding the laws either in conflict with particular constitutional provisions regarding the "sale" of liquor"122 or in excess of the power of municipal corporations;" and many contemporary commentators so stated .124
Although the due process rationale was sometimes employed, 125 the preferred approach was "inherent" limitation.
In his 1904 treatise, Police Power, Ernst Freund premised the "inherent" limitation of noninterference with purely private conduct not on any inalienable natural right but on the requirement that interference be justified on grounds of the public welfare."' This and the "practical difficulties of enforcement, coupled with the constitutional prohibition of unreasonable searches," 127 would sufficiently deter legislative abuse.
Absent the addition of a natural rights notion, however, this decisional frame becomes ambivalent on the dispositive question in an adjudication questioning such legislative "abuse": Can the mere "policy" of nonintervention with private conduct a more rigorous judicial inquiry into the relation between the prohibited private acts and the alleged public evil?
If it cannot, the constitutional attack on prohibition of possession is no stronger than that on prohibition of sale.
If it can, is not the judicial role subject to the same charge of usurpation as it would be if the courts employed a pure natural rights approach?
In any event, when the courts first confronted possession prohibition, the rhetoric was varied-due process, natural rights"' and private liberty" "-but the approach was the same-a refusal to accept the legislative findings as to the relation between private act and public harm and a refusal to defer to the legislative balance of private liberty and public need.
For example, in one of the leading cases, Commonwealth v. Campbell,"' the Court of Appeals of Kentucky cited Cooley, Mill, and Blackstone for the proposition that
[i]t is not within the competency of government to invade the privacy of the citizen's life and to regulate his conduct in matters in which he alone is concerned, or to prohibit him any liberty the exercise of which will not directly injure society.
132
Noting next that defendant was "not charged with having the liquor in his possession for the purpose of selling it, or even giving it to another" and that "ownership and possession cannot be denied when that ownership and possession is not in itself injurious to the public," 133 the court concluded that
the right to use liquor for one's own comfort, if the use is without direct injury to the public, is one of the citizen's natural and inalienable rights ....
We hold that the police power-vague and wide and undefined as it is-has limits . . .
The Antecedents: Criminalization of Narcotics and Alcohol
Address:http://www.druglibrary.org/schaffer/library/studies/vlr/vlr1.htm
http://www.freerepublic.com/focus/f-news/1726481/posts
This may come as a shock, especially if you're a lawyer, but neither a law degree nor a judges robe provides the recipient with any extra wisdom. Generally, the latter tends only to provide the arrogance of superiority.
"That's just flat out the dumbest thing I've ever heard in reference to the prohibition/restriction of actions based on harm done to others. I assume that you accept that behavior that harms people can be prohibited or regulated. Murder, loud music, public sex acts? Maybe one of those would qualify for you?"
If X murders Y, he has by the very commission of this act harmed Y (obviously).
If X plays loud music near Y, he has probably bothered Y; the important part is the playing of the music itself is the act which is potentially harming Y.
Again, if X and Z perform sex in public, it is their action itself which is the offense against Y.
By this good reasoning, a man who is publicly intoxicated may be arrested, whereas one who is equally drunk at home is not -- because the one at home has not brought offense. If X, drunk, then leaves his house and drives, or robs a store, then it is is this second action, not the original act of drinking, which is the offense.
Following this line of thinking, one would likewise conclude that if X smokes marijuana, Y, his neighbor, is not harmed by the action itself; if X goes on in his intoxicated state to commit criminal action, it is that action which is criminal per se.
Now, potentially, X may be harmed by the smoking itself, in the same sense that we can say that smoking tobacco may harm X, overindulgence in drink can harm X, eating of unhealthy food can harm X, and so forth.
If we assert that self-harm of this sort is punishable, than when we bring punishment for marijuana, we also keep the door open to those who would criminalize other behaviors, on the grounds that we (the people) are generally harmed by the self-abuser's health or lifestyle problems caused by his choices. In this fashion smokers are being demonized; busineses are prohibited from allowing smoking, prohibitive taxes are levied, government social services are brought to bear against parents who smoke, and so forth. The same technique is now beginning to be used against eaters of unhealthy food.
This, essentially, is the argument: do the people have the right to criminalize behavior they feel is unwise, or do the people have the right to possibly unwise behavior?
I have no direct stake in marijuana; I do martial arts and have no time for things that impair my aerobic conditioning. However, in the general principle, I'm for letting people alone until and unless they actually cause a harm to others, because the other line of thinking is socialist in nature: "we" the majority are empowered to override "your" choices. I prefer the opinion that the word "adult" means something -- a citizen capable of choosing how to defend himself, how to think and express himself, and how to manage his life generally, all without the prior consent or approval of the state.
As I've said before, the 'People' have already decided, in both their State Constitutions, and in our federal 'Law of the Land'.
The People who through their representatives have every reason and motivation to make the correct decision
We been agreeing on that for quite some time.
That's just flat out the dumbest thing I've ever heard in reference to the prohibition/restriction of actions based on harm done to others.
You've been jumping to a lot of flat out dumb assumptions about 'what you heard', imho.
I assume that you accept that behavior that harms people can be prohibited or regulated. Murder, loud music, public sex acts? Maybe one of those would qualify for you?
That's almost exactly what I wrote about 'reasonable regulating public acts' quite some time ago; -- as you well know.
Grab your head with both hands and try to get your mind around the central issue. It's not whether the majority gets to rewrite the Constitution with simple laws.
That's exactly what prohibitions on drugs/guns/vice do, - rewrite the Constitution. -- That is the central issue.
You are seemingly incapable of understanding that I'm not arguing that point, because you keep making it to yourself over and over.
I'm arguing it because you advocate the power of people/states to enact & enforce prohibitions.
The question of "who decides" isn't "who decides whether we should regulate away people's rights without due cause" it is "who decides whether the action is causing other people sufficient harm to justify putting curbs on it?"
Putting "curbs" on our rights to life, liberty or property is regulating away people's rights without due process; - no matter which way you phrase it.
Keeping in mind that the bar on unenumerated rights is lower than that on enumerated rights.
That's a new one.. Care to explain?
I might be giving you too much credit here, but I refuse to believe that you are as obtuse as you are pretending to be. You just don't want to answer the question, because it would destroy your argument.
How clever of you to claim I'm not answering some question you've imagined. - Catch 22?
So, who decides whether the action in question is causing other people sufficient harm to justify putting curbs on it?
Officials [both elected & appointed] by the People, - all sworn to uphold the Constitution, - decide.
You're advocating the power of officials to enact & enforce unconstitutional prohibitions.
-- No State shall deprive any person of life, liberty or property without due process of law; Constitutional law; - and no matter which way you phrase it; - such prohibitions are infringements.
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