Posted on 11/03/2005 5:33:11 AM PST by Veritas et equitas ad Votum
You said: "You place an artificial limit by the false statement "Rights possessed by citizens at the time of the adoption of the Constitution" where no constitutional limit exists."
How can anyone know what rights were "retained by the people" at the time the constitution was ratified unless we look at the rights the people had at that very time.
Put another way, how can a right be retained by the people if it did not exist when those very people ratified their constitution.
You are forgetting that the legislature is us.
When our legislature or Congress enacts laws that pose "reasonable regulations" on fundamental rights, like enacting concealed-carry laws on handgun rights, it is the people doing that to themselves through their elected representative.
What we object to, and all Americans should resist, is when a branch of government that has no power to do so imposes some restriction on the rights of the people.
For example, when the US supreme court declares that state CAN discriminate on the basis of race in college admissions when the constitution clearly says that they cannot.
You said: "We have all rights not ceded to the Government as powers through the mechanism of the constitution. The constitution does not limit or list the rights of the people but the powers of government."
I think you are confusing "rights" with "powers."
Governments have powers, people have rights.
You said: "It is not vital to know what the founders considered to be a comprehensive list of retained rights as that isn't how they created the constitution."
Again, governments don't have rights, people do. The constitution created a form of government. If you want to know what rights of the people were preserved and protected by the ratification of the Constitution and its amendments, then one MUST look to the understanding of the people who did that at the time. Otherwise, we're just making it up as we go along.
You said: "If one has a question concerning a unenumerated right one must ask if the government has the delegated power to legislate this right. If the Federal government does not have that enumerated power then one looks to the state. If the state does not have that enumerated power then it a right retained by the people."
You are mixing up rights and powers again.
You said: "The state and the people are not the same. Nor do we live in a direct democracy but a constitutional representative republic."
True.
You said: "The people have delegated powers to the state government to govern but the ability to regulate is limited to those delegated powers not the whim of the majority."
Not true, at least not in Virginia. The legislature has all the power of the people to govern except where limited by the state constitution. It is the opposite of the US Constitution.
I believe this to be true in every other state, too. The state constitution really confers no powers to the state legislature. It has all the power of the people, except where limited by the state constitution. For example, the state constitution states that the right to a jury trial cannot be infringed and the governor can only be elected to one term. and the court of appeals has jurisdiction over only certain kinds of cases, etc.
You said: "The people have the ability to govern themselves within the methods agreed to by the constitution or it is tyranny of the majority."
True, except for the part about the tyranny of the majority. What is that?
You said:
"10th Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Why would the part in bold have been added if in fact the state was considered the same as the people. Why would we originally have had separate representation of both the state and the people if what you claim were true? In your theory of governance the supremacy and innate sovereignty of the people has been given to the state. In application I think that may be true but I have no doubt it was never intended."
The answer is as I have said: State constitutions limit state government from doing certain things. Some of those powers are retained by the people. For example, in Virginia the legislature cannot borrow money unless the people approve the borrowing in a referendum. That would be an example of a power retained by the people.
May I suggest everyone read this excellent discussion by Judge Bork, with which I totally agree:
http://www.nationalreview.com/comment/bork200511031121.asp
When it only takes about $50,000 to get elected, then I'll believe your premise.
When the media (all types) actually start to pay attention to your ideas and policies, rather than your hair, your suit, or how white your teeth are, then I'll believe that we are doing this to ourselves.
The only politics that a "regular" guy can participate in is the School Board, dog catcher, or local municipal government.
Getting elected to a state legislature or to be a representative in the House (not to mention the House of Lords...errr, the Senate), it takes $25 million...MINIMUM.
Where is a normal guy going to get that? His smile? His looks? I don't think so. He's going to get it from donors. And, the parties aren't going to send someone "up" for election unless it is the "right" guy. The "right" guy usually isn't always the right guy.
We do elect them, in that we "pull the lever". But, frankly, it is typically because of the lack of choice, not because "Oh, my! This politicians the greatest things since sliced bread!".
I do agree with you that we do (and should) object to a branch of government that has no power to impose...well, imposing on us. The judiciary, generally, and SCOTUS, specifically, have been doing that for a long time.
But, your argument has another side. Following your logic, couldn't the state declare that the colleges can discriminate based on race, even though the Constitution prevents this? Yeah, I know, the Constitution would supercede that law, right?
Well, if a state has banned (or significantly limited...crossing your vaunted "reasonable regualation" threshold) the use of firearms because that's what the legislature wanted to do, the Constitution (and the 2nd Amendment specifically) supercede those "reasonable regulations" too.
But, how come states have been able to enact these "laws" and not be swiftly stuck down by SCOTUS or any other inferior court as unconsitutional?
Because the judges "deciding" these cases aren't ruling on the law, interpreting the laws that are made relative to the Constitution. In all too many cases, the judges are basically making it up as they go along, reasoning out their own jurisprudence regardless of provisions of the Constituion. They don't have will to resist their own impulses (political or otherwise), so they do what feels right, instead of doing what is right.
That's why it takes a special man/woman to be a judge. It is also the reason why we should hold Justice Scalia and Justice Thomas in such high regard: they resist their impulses about feeling good and do what's right by the law, knowing that they will have done good. And, tha't more important.
I've posted this before and wonder if anyone else has heard this.
A friend of mine, a democrat, was at a fund raiser of some type several weeks ago, and over heard Durbin talking about taxing transactions on the internet e.g. like on eBAy. He would be in favor of a "federal" law that would tax online "garage sale" like transactions e.g. eBay of new items and "used" items that sell for over $500.
I have not been able to verify this, but it came from a democrat friend who has come to realize that Durbin is the idiot we all think he is.
Has anyone else heard this? I think it is a question that someone should pose to him and to people like Hillary for that matter.
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Sadly, Captain whoever is one of a vast majority of People in this Republic who do not understand the principles behind the foundation of our government.
It seems rather odd to ask anyone who undergoes the virtual vivisection that a Supreme court candidate must undergo whether or not he believes in a right to privacy. If a criminal suspect had his life taken apart the way these respected judges must, his lawyer would scream.
It seems rather odd to ask anyone who undergoes the virtual vivisection that a Supreme court candidate must undergo whether or not he believes in a right to privacy. If a criminal suspect had his life taken apart the way these respected judges must, his lawyer would scream.
If the kool-aid drinkers would stop and think for a nanosecond between Hush Bimbo and Pawn Vanity's daily dose of Bush water carrying, they'd realize that any judge who DIDN'T believe in a "right to privacy" is the one to fear.
The real issue is separating privacy from infanticide, which has nothing to do with privacy and everything to do with unnecessarily snuffing out an innocent life.
You said: "Sadly, Captain whoever is one of a vast majority of People in this Republic who do not understand the principles behind the foundation of our government."
I am just astounded by people and their the lack of knowledge about our own system of federalist government who claim in writing to "know" what it means and condemn those who do understand and know as people who do not know what they are talking about.
In that respect, I feel a kinship with Judge Bork.
I have no idea what you are talking about, and neither do you.
This is the point I was attempting to make. I should have gone to Madison sooner:
For example, the 10th Amendment states, "The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people." Charles Cooper, formerly a top official in the Reagan Justice Department, explains:"TheTenth Amendment expresses the principle that under girds the entire plan of the original Constitution: the national government possesses only those powers delegated to it. The Framers of the Tenth Amendment had two purposes in mind when they drafted it. The first was a necessary rule of construction. The second was to reaffirm the nature of the federal system."
Mr. Cooper also cites James Madison, considered the father of the Constitution, who wrote, in Federalist No. 45:
"The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce... The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state."
From:
http://www.washtimes.com/op-ed/20051114-102615-9895r.htm
Okay.
I disagree with the idea that every power not given to the federal government necessarily rests within the various State legislatures by default.
If that means I disagree with Madison, so be it. I believe that government at any level exists to secure the rights of individuals to be secure in their life, liberty, and property.
Therefore, if you mean to suggest that the U.S. Constitution permits States to exercise all powers which have not specifically been given to the federal government EXCEPT all those powers which violate the rights of individuals to their lives, liberties, and property, I agree. If you mean anything else, I disagree.
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