Posted on 07/23/2002 7:14:59 AM PDT by Doug Loss
Makes no difference. They were not legally a whole person - for whatever reason, it doesn't matter. See, they just make it up as they go along.
Actually, I think you have it reversed. A state could not make it illegal for residents of other states to possess marijuana while within that state's boundaries while making it legal for its own residents.
No, that's not what that clause means. It does not allow one state to overturn the laws of all other states. "Priviliges and immunities of citizens" refer to those benefits that are normally understood to apply to citizens by virtue of their being citizens. These include the right to own land, to bring suit before a court, the power of arrest, etc.
The obvious (and wrong!) conclusion is that 3/5 of all other persons meant slaves, and therefore the founding fathers thought blacks were only 3/5 human.
The careful reader, though, looks at the paragraph as a whole: what are the founding fathers trying to accomplish here? They were careful not to say that "negros" counted 3/5s of a person, but rather, all "non-free" people were 3/5th of a person. Why? This is used to determine representation in Congress--the 3/5s clause, although widely mis-interpreted as being some "anti-black" sentiment by the founding fathers, was a way for the Northern states to punish the Southern states by reducing their numbers in the legislature, so long as they continued to have slavery in the South. By the Southern states freeing their slaves, their population would increase, as determined by the census, and they would be on equal footing with the Northern states in terms of representation.
Not only did the founding fathers view blacks as fully human, they incorporated a punishment to slave holding states within the Constitution.
That is definitely true under the reading, but the reverse is also true.
"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"
Maybe I am reading this differently. If I live in "each State" which would mean any State, then I would be entitled to the priveledges and immunities of citizens in any other State. A state can not make something a crime which is solely dependent upon the "offender" simply possessing and object or engaging in an activity while being located in a specific geographic area. There was much discussion of this concept in early America. To not respect this, would mean that all "travelers" would have to know the laws of anywhere they pass through, and could be incarcerated for simply doing something that was fine and dandy where they came from.
Can't have both. The problem is that incorporation is not really much of a stretch in light of Section 1 of the 14'th - people may disagree, but the case for incorporation is pretty strong, IMO. And that renders the 9'th to be a very dangerous, very broad concept. Anything becomes a right under the 9'th Amendment, if you want - gay marriage, child porn, whatever.
I suppose you could try to repeal the 14'th, though. Good luck ;)
I would entertain that notion. But, we have this notion to deal with. The Constitution limits what the Feds can do. Smoe people say that per the 9th and 10th, the States can regulate(meaning they can have the power to regulate) anything no specifically denied to it by the Constitution. The State's powers are spelled out in the State Constitution. A state could make it illegal to wear red shoes. I as a traveler from another state which has no such laws, passess through such a state and am arrested. Does anyone really think that defines a free country? First of all, that would impede "interstate commerse". See, that is actually a rational argument for the Feds trumping any such state laws, which based upon this interpretation of the 9th and 10th, would be fully within the States power to pass such laws.
Do you have links for this? I think that discussion might have had more to do with the commerce clause thatn the privileges&immunities clause, but I'd be interested in seeing what they had to say.
Justice Scalia has said exactly that-- he refuses to consider the 9th Amendment in any case because he has no basis, other than his own preferences, to decide which rights it protects. Chief Justice Burger once tried, in a concurring opinion, to list the rights he thought the 9th Amendment protects-- IIRC, he mentioned the right to travel from state to state, the right of a criminal defendant to be presumed innocent, and a few others.
I think that reading is not accurate, as it would be a direct violation of the concept of states rights.
A state can not make something a crime which is solely dependent upon the "offender" simply possessing and object or engaging in an activity while being located in a specific geographic area.
They do it all the time. Obtain a one-ounce bag of pot in Colorado, get stopped and it is a summary offense. Now, drive with that bag of pot to Arizona, and you can get thrown in jail.
There was much discussion of this concept in early America. To not respect this, would mean that all "travelers" would have to know the laws of anywhere they pass through, and could be incarcerated for simply doing something that was fine and dandy where they came from.
Once again, that happens all the time.
That's interesting - do you recall the case where Burger said that? That would make two cases where the 9'th is mentioned, since the only one I can think of off the top of my head is Goldberg's concurrence in Griswold...
Sure they do - I do not deny that. But they do it under the "color of law". Its the whim of man, nothing more. It does not respect individual rights; it supports whatever a group of people who vote someone into office, gain favor with and bribe them, want. This is not a concept of a "free country". One's "freedom" does not entail the right to determine what others do.
There are many "powers" that no level of government legitimately can possess. They do, but its not legitimate. Its all "the color of law". "They" have the badges and guns - and the gold.
You may be correct on that. Its all "intertwined", though. Without "uniform" laws governing behavior that does not violate rights, we could have very little "interstate commerce". That's why the feds have extorted away and usurped certain rights from the States - not to give them back to the rightful owners - the people, but to make their own rules. Its not right for either level of government to do so.
We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.
He had me going until then. I have to tune someone out when they say "good of the whole". Sorry, Thomas is just another "Whatever those who are in power say is good for you, goes" types. All the other "rights" and "liberties" he speaks of are negated by "good for the whole".
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.