Posted on 08/08/2003 12:16:04 PM PDT by Desmond
This idea was first addressed by Marshall in Marbary v Madison, 1803. I suggest you read it.
I read it. Marbury v. Madison does not say what you think it says. I believe the principle you are grasping on to is best summarized, in the decision, by:
Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.
The problem is that this decision deals with "act[s] of the legislature" that violate the constitution. You do not seem to grasp the distinction between an law passed by Congress and an amendment passed by super-majorities in Congress and a super-majority of the state legislatures. The amendment passed by the process explained in Article V, in language so simple a child could understand it, is by definition Constitutional if carried out in accordance with Article V. Since you seem to have so much trouble finding Article V, I'll copy it here for you:
Article. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
There is simply no reasonable way to read that passage and conclude that the 18th Amendment, for example, passed in accordance with Article V, should not have "be[en] valid to all Intents and Purposes, as Part of [the] Constitution" simply because it did not comply with principles written nowhere in the Constitution. Was it a bad amendment? Yes. And I can think of a few more bad amendments, too. But they are valid and Constitutional as per Article V of the Constitution. Your interpretation would render Article V, as clearly written, unconstitutional.
Congrats, you are finally beginning to get the point. The only absolute constitutional constrains are on violating individual rights/liberty.
No Constitutional constraint is exempted from the amendment process specified in Article V. Marbury v. Madison does not say otherwise. No decision that I am aware of does.
The constitution cannot be amended in a way that is repugnant to its basic principles, lest it void its own social contract.
The Constitution, itself, contains no such constraint, no matter how much you would like it to. Wishing it was so does not make it so. The primary "social contract" of the Constitution is a republican form of government. The Bill of Rights, as important as they are, are amendments added to this original social contract. And since the social contract is subject to amendment, it may change to conform to the will of the people when support becomes substantial enough. Our social contract now includes the right of women and 18 year-olds to vote, for example. You need to seperate your like or dislike for various amendments from the legitimacy of the process. There are amendments and even original parts of the Constitution that I don't like, but that doesn't make them valid (spare me the speculatoin on what I don't like unless you really want to discuss the authorization of armies or the election of Senators -- I'm not talking about your RKBA.).
IE - Our RKBA's cannot be 'amended away'. It is inalienable.
The right to keep and bear arms was amended into the Constitution. It is, itself, an "amendment". It is a good amendment. I agree with it. And I might even agree that it is an inalienable right, but that is a philisophical and not a legal question. The point remains that the Constitution does not prohibit amendments to amendments (the Second Amendment being an amendment) and nothing in Marbury v. Madison suggests otherwise. And I'd take a pause before you trust the Supreme Court to decide what laws and amendments are constitutional or not based on the vague but unbounded concept of "inalienable rights", without regard for the actual text of the Constitution.
I'm sure that you've seen the quote attributed to George Washington, "Firearms stand next in importance to the Constitution itself. They are the American people's teeth and keystone under independence." Note that Washington does not claim that firearms or firearm rights are equal in importance to the Constitution itself.
In what sense are you asking? Theoretical? Practial? Legal?
In theory, I think they should derive from the "natural order of things". In practice, I think rights derive from the consent of the people. Under law, I think that rights are defined by the Constitution and other laws. And given the subjective nature of the claims involved (I believe that there is a "natural order of things" but I do not believe that humans can accurately identify that "natural order of things" with objective clarity), I don't expect the theory, practice, and law to be in perfect harmony with one another. Since I do not believe that any human can objectively and accurately identify the set of rights inherent in the "natural order of things", I have no interest in empowering only one person or small group of persons to define what rights we will be allowed to enjoy in practice or under law. So I'm left with the conclusion that a republican form of government is the best way for the people to work out which rights the people, collectively, in practice, and under the law will consider legitimate and respect. And I think the best way for that to succeed is through a common culture and common understanding of the "natural order of things".
The right to keep and bear arms was amended into the Constitution. It is, itself, an "amendment". It is a good amendment. I agree with it. And I might even agree that it is an inalienable right, but that is a philisophical and not a legal question.
The basics of your communitarian outlook becomes ever more clear. Thanks.
The point remains that the Constitution does not prohibit amendments to amendments (the Second Amendment being an amendment) and nothing in Marbury v. Madison suggests otherwise.
Not so. You read selectively, to fit your agenda.
Justice Marshall, from Marbury v Madison, seems to think that a constitutional principle, if it is deemed 'fundamental' enough, is 'designed to be permanent'.
- Individual rights to life, liberty and property seem pretty fundamental to me.
If they were violated by amendment, would not the constitutional contract be void?
Here is Marshall:
"The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but happily, not of an intricacy proportioned to its interest.
It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it."
"That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.
The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated.
The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."
And I'd take a pause before you trust the Supreme Court to decide what laws and amendments are constitutional or not based on the vague but unbounded concept of "inalienable rights", without regard for the actual text of the Constitution.
The actual text of our constitution & BOR's mentions our rights to life, liberty, & property twice. They are inalienable, in the sense that only individuals can possess them, and the people can only delegate portions of their powers thereunder to governments.
Individuals cannot lose these rights, they can only be violated.
You see it differently. You seem to think a republican form of government has the delegated power to somehow amend our basic rights.
That is communitarian thinking, to my mind, not republican.
Nitpick -- the last sentence of Article V states: "[...]; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Otherwise, you are in the right. "[T]paine" seems confused.
"While banning alcohol outright proved to be quite foolish and impractical, severely punishing drunk driving has reduced drunk driving and the associated damage. Legally requiring parents to school their children has helped society. Safety regulations on drugs and other consumer products have helped society. Traffic regulations have helped society (even speed limits which, even when not absolutely obeyed, do slow traffic down)."
That's true, even though they are not very libertarian laws. Traffic regulations don't really legislate people into being moral though, one thing doesn't have anything to do with the other.
"Once you get into the realm of civil obligations, you are in the same subjective realm as public morals legislation."
Alright. Nonetheless, my opinion is that Americans are just going to have to keep living with things like jury duty and drafting in times of (true) national crises even if they're the moral impositions of society.
"The problem with limiting your legislation to actual crimes against property or persons is that they are reactionary. A fully functional law system that is effective must also restrict or discourage behavior that can lead crimes against property and persons. We don't simply arrest the person who swings his fist into the nose of another but also the person who simply recklessly swings his fist around before he hits anything. Why? Because this protects people before they become victims."
The way the system functions currently is that if a drunk driver kills someone with his vehicle, he can be let off with manslaughter. I think that's bullshit; I think he should be allowed to drink as he wishes, but if he drinks, gets behind the wheel of a car, and kills he is responsible for murder and should be punished accordingly. Being drunk is not an excuse, it should multiply the sentence.
Laws against brandishing (a weapon) are also common sense. It's a threatening act towards people around you.
"Then do you really object to these pornographers being prosecuted if that is the sort of thing they film?"
If they've committed crimes, of course I would not object. Only a liberal would require a higher standard to indict pornographers simply because they are pornographers. Surprise beatings to "enhance" the "quality" of pornography is clearly illegal, even if the women are intimidated into giving superficial consent afterwards.
People "consent" to paying protection money to the mafia, but it's still illegal because it's not genuine consent. If a "body artist" (deviant into mutilation) wishes to have his arm removed and reattached at the thigh, and undergoes an operation to have it done, the person who performed the operation should not be charged with a crime provided that he can prove genuine consent. That is not the case, however.
"And would you then agree that if the relations are between people across state lines that the Federal government might have some authority?"
Yes.
Regarding Homeowners' Associations: If the homeowner bought the house knowing he would not be permitted to display political signs on his front lawn, and he explicitly agreed not to do so as a requirement for buying and living in the home, I don't understand why he would expect to be able to do so. If the Ass'n changed the rules on him after he moved in, the case may be different. I don't live in a covenant community and I don't want to. The developments look ugly, the neighbors are often immature, and the rules are too restrictive. Some people prefer that, they don't want their neighbors painting their houses neon pink or filling up their yard lots of political signs.
"First, depending on the issue, I'd stretch "local" to include county and state governments."
So would I, with the point being made that localities have more freedom to do as they please than do counties, which have more than states, which are limited by their respective constitutions. And the federal government has none except what is explicitly outlined in the Constitution (remember that nifty 10th Amendment?). I agree with your second caveat.
"The Founding Fathers where not really of one mind about everything."
OK, OK, so Hamilton wanted to be a second Caesar... :)
A libertarian can (and often does) have precisely the same opinions on moral absolutes as a conservative. The difference is that the conservative in more cases than the libertarian is willing to control others through legislation. Libertarians also believe that people, left in liberty, will tend to work to better their lot, preserve their morals and values and pass them to their children, and attempt to have amenable relations with others. People usually get much nastier when they can go through a process to deal with others (like using lawyers) than if the parties simply attempt to resolve problems personally.
"How did Rudy G. tame NYC?" -johnb838
I actually don't know. In fact, I don't know if he really tamed NYC at all or only in part. Like I said, someone else more qualified than myself will have to present ideas.
Northridge? There was a whole lotta shakin' goin' on there 'round 'bout 1994.
Too bad the whole place wasn't swallowed up whole by sheol.
Ashcroft is a hero. I suggest you scrub your hard drive. They are coming after you. Bye-bye. Enjoy your "vacation.."
No worries here, pardner.
Have you gotten rid of the Nazi propaganda on yours?
Your "hero" blithely ignores blatantly criminal, but politically inconvenient acts while concentrating on trivia. Millions of illegal aliens eat us out of house and home while he looks for dirty videos. While he makes sure no one is becoming inappropriately aroused by "dirty stuff", the statute of limitations runs on a man who REALLY dragged our country through the "dirt", selling pardons for cash, nuclear secrets for campaign contributions - a guy who had condoms on his Christmas tree and thinks a sink is a "love object".
Wow, what a hero Ashcroft is! What a brave, macho dude !
Try again. He's a punk. And a wimp. Janet Reno had more testicular fortitude than he does.
Ashcroft targets a wide variety of crimes. Obviously, it's just the "doper and boner" offenses that get you riled up. Why is that? Are you feeling the heat of the red laser aimpoint?
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