NATURAL RIGHTS: What Are They? Which Can Government Rightfully Restrict? Which Have Been Unjustly Restricted?

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The Declaration Of Independence holds... at least at the time for Freemen

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --

It really doesn't enumerate those rights beyond life, liberty, and the pursuit of happiness. Why should they. If this is a declaration of Natural Rights... those rights are too numerous... perhaps infinite in scope, to enumerate. Infinite? Do you have the right to paint your bedroom any particular color?

The Constitution was constructed to protect Natural Rights, at least for freemen, by granting the new federal government limited powers. Madison believed any Bill Of Rights would place those rights not enumerated at risk. He drafted the Ninth Amendment to include them atop those enumerated elsewhere in the Bill Of Rights. It says

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But for whatever reason, the Ninth has been neglected. Liberal courts at best offer limited support for a few select rights while the social Right seems determined to bury the Ninth obviously fearing it might protect rights they don't want people to have... such as same sex marriage, perhaps the right to choose. Bork claimed the Ninth was like an inkblot on the Constitution beneath which we'd never know the Framers' intent.

In constructing the Constitution without a more definitive definition of Natural Rights we are left wondering what they are... and if government in the past had any power to deprive us of them. The French Rights Of Man was more all encompassing:

4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.

http://avalon.law.yale.edu/18th_century/rightsof.asp

Since both the Constitution and the Rights of Man both have roots in the concept of Natural Rights... what are they, which one's can government rightfully restrict or take away, and which have already been unjustly denied us?

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Only some "natural rights" are protected by the Constitution. There is no consensus on what other "natural rights" should be protected by the Constitution. The most the Constitution does to address "unprotected" rights is to guarantee all persons due process of law and the equal protection of the law.

The only right protected by the Constitution that is not explicity listed in the Bill of Rights is the right to privacy, which was established by a decision of the Supreme Court.

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stuff
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Quote stuff:

Only some "natural rights" are protected by the Constitution. There is no consensus on what other "natural rights" should be protected by the Constitution. The most the Constitution does to address "unprotected" rights is to guarantee all persons due process of law and the equal protection of the law.

The only right protected by the Constitution that is not explicity listed in the Bill of Rights is the right to privacy, which was established by a decision of the Supreme Court.

By that "logic" we don't have a constitutional right to fall in love, marry, have kids, build a home, start a business, read a book... but the First Amendment protect our right to write one?

You're back in the trap of assuming court decisions even hundreds of years after the Constitution and Bill Of Rights were ratified represent Original Intent. I'm interested in the latter. Who decides which of those unenumerated rights we're allowed to have and which can be restricted? Scalia might say common law rights are acceptable? But are unenumerated rights in the Ninth merely common law rights? Or are Natural Rights more all encompassing than common law rights? They are if we're to believe the Right's of Man which granted isn't American... even if Jefferson reportedly had some role in writing it. But it does reflect the enlightenment of the era where the Constitution is more murky... UNLESS the Ninth is there to protect ALL rights.

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Probably Natural Rights would be the right to those things we are are born to naturally require.

1. Adequate nutritious food.

'2. Clean water.

3. An ability to maintain body temperature necessary for physical survival. (shelter/clothing).

4.Community.

Just exacly where is money, a human invention, in that? Money isn't a natural occurance.. We weren't born with the natural need to stuff as much money as possible under a mattress. The human race toddled along about 200,000 years without it.

If we're going to use money, it should be used to ensure natural rights rather than denying them.

Retired Monk - "Ideology is a disease"

polycarp2
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We weren't born with the guaranteed right that government procure those things like food, water, shelter,etc by taking from someone else that had the RIGHT, the same as anyone else, to procure them for themself.

Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has the right to sustain his life by his own effort, no man has the right to the product of another's effort. The man who produces while others dispose of his product, is a slave.

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darlinedarline1...
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Quote darlinedarline1@aol.com:

Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has the right to sustain his life by his own effort, no man has the right to the product of another's effort. The man who produces while others dispose of his product, is a slave.

Dar's not just passed the Cut & Paste test, she's also passed the blatant plagiarization test. The above was stolen from:

http://www.aynrand.org/site/PageServer?pagename=media_cui_rights

and

http://www.aynrand.org/site/PageServer?pagename=media_cui_property

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Oh, are you an Ayn Rand fan too there, peepot?

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darlinedarline1...
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Quote darlinedarline1@aol.com:

Oh, are you an Ayn Rand fan too there, peepot?

G*YS plagiarizer.

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I agree, Natural Rights are prerequisites of Life. Life is a Constitutional prerequisite to any thought of Liberty which is a prerequisite to any thought of Pursuing Happiness. If there are no available means to obtain these natural rights. Then the government must provide them. Property or Money are not listed in the Constitution or a prerequisite of Life or being American. The only ones objecting to Americans having natural rights are those prioritizing money and property over American citizens. Making them traitors. But we knew that...

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And all for nothing, if jerry-mandering continues. How about a class action on denial of civil rights; the vote, without which, of course, we are denied Life, Liberty, and the Pursuit of Happiness.

nickel
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Nov. 21, 2012 3:21 pm

There seems to be a significant body of opinion that would like to have "property rights" be the guarantor of "individual liberty and freedom" but who are not ready to bestow sufficient property upon all the created equal beings to insure that they do not become the dividing line between "human" and something lesser that we do not need to identify with morally.

If the idea is that we are all supposed to accumulate sufficient personal property to guarantee that human moral state of freedom around which the "right to life" as the predominant principle is to be organized, then where is the Commons available to all where we may take care of these needs? If you want to make the Corporate labor market and Capitalism the way to take care of this socially, you really need to insure living wages and protected benefits as "private property" and also insure those who are left out by the system of adequate human treatment.

The bottom line is not property, it is people. For property rights to guarantee anything in the first place, there has to be some legal title and court system to determine under what conditions the buying and selling of property is done. It is not longer commodities trading or the personal barter, it is the exchange of human moral value as well. I think the argument falls apart rather quickly when you puncture the pious claims made for property rights as the foundation of civilization.

When I say that America's history of policing is protection of property and privilege from the mob, some Libertarians whine. There is a presumption that private property has been earned by honest work and acumen. "Taking" it is immoral because of this, but it is not true. If we love our up from rags to riches stories, we have to know that they are radical exceptions rather than a pattern of social change and class mobility. The establishment of power, wealth and privilege is a sociological fact of life. Democracies need to be able to shake things up rather than let them have their way to stay democracies.

Human Rights are Natural and Civil. If we form societies for security as well as for the symbiosis of shared gifts, and if the society is how we protect and insure these basic human rights, there is little moral or legal difference between them and the rules of social governance and participation that are also equally accessible to all. Are they inherent in Nature or Secured by Government? Can we have rules for participation in our society that have a nearly equal moral authority in equality of access?

If you want to get money out of politics or protect politics from money, you have to appreciate that property is also a financial measure of political power. Back to capitalism v. democracy again, and if capitalism trumps democracy, how about them human rights!

drc2
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Quote nickel:

And all for nothing, if jerry-mandering continues. How about a class action on denial of civil rights; the vote, without which, of course, we are denied Life, Liberty, and the Pursuit of Happiness.

Gerrymandering is just one of our systems defects...

If you're going to seek a court case against antidemocratic government... you'd have to bring it against the Constitution itself which gives 18% of the population 52% of the seats in the Senate, can install as president a candidate rejected by the People, and where a mere 3.5% of the population can block any amendment.

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Quote Pierpont:Since both the Constitution and the Rights of Man both have roots in the concept of Natural Rights... what are they, which one's can government rightfully restrict or take away, and which have already been unjustly denied us?

But are the right to have a fair trial, free from unusual punishments, or to be secure in ones papers from government snooping actually "natural rights"? Or are they a new class of rights created out of necessity BECAUSE a government with real powers was created?

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There is a clear attempt to continually subvert the democratic process. This deception constitutes fraud (on a massive scale). The defendant may be the RNC. It is their intent, they have stated motive, and designated means. My defective bladder cannot mean its ok to keep killing my neighbors petunias. We have seen the results, cui bono?

nickel
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Quote nickel:

There is a clear attempt to continually subvert the democratic process. This deception constitutes fraud (on a massive scale). The defendant may be the RNC. It is their intent, they have stated motive, and designated means. My defective bladder cannot mean its ok to keep killing my neighbors petunias. We have seen the results, cui bono?

I don't think you get it... few do. In our system we can have

100% educated, informed voters

100% voting age participation in elections

100% public financing

100% vote count accuracy

and a candidate rejected by the people can still be imposed on the nation as president by the EC, 18% of the population gets a veto in the Senate over anything the House can pass, 3.5% of the population can thwart any amendment and less than 40% of the population can ratify any amendment. Does that sound like a system based on the consent of the governed?

The problem is not the GOP... it's the system that created a intellecually braindead two party system which includesthe GOP. It's our system that that gives the GOP more power than it deserves through a series of vote weighting/dilution schemes where a citizen who chooses to live in Wyoming's influence in the Senate can be 70x greater than a citizen who chooses to live in California and 3.x bigger vote for president than any California resident. The courts have ruled that our federal system would be illegal if duplicated on the state level.

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Quote darlinedarline1@aol.com:

We weren't born with the guaranteed right that government procure those things like food, water, shelter,etc by taking from someone else that had the RIGHT, the same as anyone else, to procure them for themself.

Thus, for every individual, a right is the moral sanction of a positive—of his freedom to act on his own judgment, for his own goals, by his own voluntary, uncoerced choice. As to his neighbors, his rights impose no obligations on them except of a negative kind: to abstain from violating his rights.

The right to life is the source of all rights—and the right to property is their only implementation. Without property rights, no other rights are possible. Since man has the right to sustain his life by his own effort, no man has the right to the product of another's effort. The man who produces while others dispose of his product, is a slave.

poly replies: True, darline. Before the Commons were privatized, lthe planet itself guaranteed the right to procure food, water and shelter by simply utilizing the commons just like any other natural-born mammal. Some societies remembered that. Some didn't.

Governments took it away...and now are protecting your right to procure food, water and shelter if you gather some of the stuff called money. If you can't gather enough, or get someone to do it for you....tough. That's about as natural as a dog giving birth to kittens. We weren't born with a wallet....thougn even a kangaroo has a pouch.Different function.

Darline posted: Since man has the right to sustain his life by his own effort, no man has the right to the product of another's effort. The man who produces while others dispose of his product, is a slave.

poly replies: Read the first line in my response.

Profit is the difference between what you are paid, and what you produce with your effort .Chances are, someone other than yourself is disposing of what you produced with your own effort unless you're self-employed. The commons were once so large, no one had to do that. It was the entire planet. It was N. America when Europeans first landed here.

Native Americans called giving someone a portion of their effort slavery. . We, in our greater wisdom, call it freedom...a job. So, why are you denouncing results of a privatized commons as slavery on one hand, and upholding a privatized commons as freedom with the other?? Don't you see your positions are contradictory?

Retired Monk - "Ideology is a disease"

polycarp2
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Even Bork must consede that voting was pre-eminent in the Framers intent!

nickel
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It's entrapted in the First.

nickel
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Quote nickel:

Even Bork must consede that voting was pre-eminent in the Framers intent!

Not sure why you brought Bork into this.

Leaving aside all the antidemocratic aspects of the Constitution, and all those groups that could NOT vite, voting could not have been seen as that important if the Constitution could override the voice of "the People" ie white Freemen, in three key ways.

The first was the Senate which until about a century ago was NOT elected by the People, but the state governments. The Senate could easily override whatever came up from the House.

Second was the special duties the Senate had such as ratifying nominations or treaties. The House usually has no say in these matters.

Third was the Electoral College which was designed to block the People's choice if the electors found him unacceptable.

So pray tell... where in our system did the Framers really trust the People to trust them with the vote?

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I've heard it said we talk too much about rights. As soon as something is called a right, it is non-negotiable, and yet it turns out that all so called "rights" have certain parameters or limitations. Rather than add to that already too long a list, let's simply think in terms of justice, and actions a reasonable person might undertake without referring to these actions as non negotiable rights. For example, the "right to life" or the "right to choose." Instead, in this case, we can discuss how each side came to its set of beliefs. "Life begins at conception therefore the fetus has a right to life." In this case it is a religious belief from which was construed the right. We do not all share this religious belief. Or the right to privacy. Very important, even sacred in our progressive beliefs, yet it is not beyond some limitations. By calling something a right we try to make it an absolute. None are.

hans nel
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Quote nickel:

It's entrapted in the First.

Are you on a smart phone?

What's in the First? Voting? Where"

Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let's pretend it was there. So what was the status of voting in the 3.5 years between the Constitution being ratified and the Bill Of Rights being ratified?

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The RNC put the human skin suit on corporations, and got the law to accept that mutation of common sense. Now the task of making their 'peoples' % of the vote legitimatly more powerful than We the People's % of the vote is really rollin. Shaving voter roles, private system upgrades, CU, the means may be legal, but the ends are criminal. Our votes solvency, the EC, filibuster, and House rules can only be fixed if our representation reflects our votes. If we had 100% education, financing, participation and accuracy; the zombie Kochs, Exxon, BP, GE, etc. would not be able to get all those rules, laws, and otherwise complicit and systematic gaming of the system passed. A government of the people, and by the people, will always be for the people.

nickel
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Quote nickel:If we had 100% education, financing, participation and accuracy; the zombie Kochs, Exxon, BP, GE, etc. would not be able to get all those rules, laws, and otherwise complicit and systematic gaming of the system passed. A government of the people, and by the people, will always be for the people.

ROTF.. dream on. The Constitution was NEVER just about "the People". We have a dual suffrage system where the states were to have more power than the People. That's been watered down some but as long as a mere 18% of the population get's a majority of Senate seats then what even does a vote even mean when one person's vote weighs 70x more than another's? Is any of this even connecting? Are you stuck in 4th grade history actually believing the House and Senate balance each other out so everything's fair?

In our system the vote often doesn't matter. Have you already forgotten Election 2000? In the first Bush term the GOP held the Senate even though the Dems got about 5 million more votes than the GOP. Gerrymandering is not a constitutional issue but it is a problem because as we've seen in this last election the Dems got a million or more votes that the GOP yet the GOP controls the House.

As I wrote earlier, we can have 100% public financing, 100% voter participation, 100% vote count accuracy, democrats can even win most elections... and we can still end up with a GOP government. Our system PERMITS MINORITY RULE. Hell, even the 38 smallest states that can ratify any amendment only have about 40% of the population.

The prosecution rests.

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By that "logic" we don't have a constitutional right to fall in love, marry, have kids, build a home, start a business, read a book... but the First Amendment protect our right to write one?

The right to fall in love is not protected by the Constitution. Perhaps it would help if you reviewed the concepts of "strict scrutiny," "heightened scrutiny," and "rational basis."

You're back in the trap of assuming court decisions even hundreds of years after the Constitution and Bill Of Rights were ratified represent Original Intent. I'm interested in the latter. Who decides which of those unenumerated rights we're allowed to have and which can be restricted? Scalia might say common law rights are acceptable? But are unenumerated rights in the Ninth merely common law rights? Or are Natural Rights more all encompassing than common law rights? They are if we're to believe the Right's of Man which granted isn't American... even if Jefferson reportedly had some role in writing it. But it does reflect the enlightenment of the era where the Constitution is more murky... UNLESS the Ninth is there to protect ALL rights.

The concepts of Constitutional protection is a current doctrine in federal courts at this time.

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But are the right to have a fair trial, free from unusual punishments, or to be secure in ones papers from government snooping actually "natural rights"? Or are they a new class of rights created out of necessity BECAUSE a government with real powers was created?

The Declaration of Independence, which is not legally binding, reflected ideas about natural law. The U.S. Constitution, on the other hand, is legally binding and reflects ideas about positive law. You might wish to review the differences between the two.

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Before the Commons were privatized, lthe planet itself guaranteed the right to procure food, water and shelter by simply utilizing the commons just like any other natural-born mammal. Some societies remembered that. Some didn't.

If you are referring to the Enclosure Laws, then as I have written elsewhere, the peasants had a right to the land and the fruits of their labor only to the extent as was permitted by landlords. Consequently, landless peasants were poor, ignorant, oppressed, and politically powerless.

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The first was the Senate which until about a century ago was NOT elected by the People, but the state governments. The Senate could easily override whatever came up from the House.

And vice versa.

Second was the special duties the Senate had such as ratifying nominations or treaties. The House usually has no say in these matters.

The House has other powers that the Senate does not, including the power of impeachment initiation of taxing and spending, etc.

Third was the Electoral College which was designed to block the People's choice if the electors found him unacceptable.

The Electoral College was not an attempt to "block the People's choice," it was a practical political compromise intended to placate the small population states.

So pray tell... where in our system did the Framers really trust the People to trust them with the vote?

The Framers left the decision of voting rights to the states. Even today, there are few federal laws concerning who appears on a ballot for federal office. While the Constitution has been amended several times to require states to expand voting rights, beginning with the Fourteenth Amendment, states still have discretion regarding things like residency requirements and disqualification based on criminal record or mental defect or disease.

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So what was the status of voting in the 3.5 years between the Constitution being ratified and the Bill Of Rights being ratified?

Because states controlled voting rights, there was a wide spectrum of voter participation. In some states, as many as 90 percent of adult males could vote; in other states, as few as 10 percent. In several cases, women and free men of color could vote, although no state allowed women to vote in statewide or federal elections until Wyoming granted voting rights to women in 1869.

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Quote stuff:
Before the Commons were privatized, lthe planet itself guaranteed the right to procure food, water and shelter by simply utilizing the commons just like any other natural-born mammal. Some societies remembered that. Some didn't.

If you are referring to the Enclosure Laws, then as I have written elsewhere, the peasants had a right to the land and the fruits of their labor only to the extent as was permitted by landlords. Consequently, landless peasants were poor, ignorant, oppressed, and politically powerless.

Actually, until some despot came along and said everything you see from horizon to horizon is mine....the beginning of private ownership of land.... that wasn't the case. The Enclosure Laws of England were merely the final nail in the coffin for the western world.

What is now the continental United States didn't have despots. The land wasn't enclosed until the arrival of Europeans. A few kings claimed all of it. We've been dividing up and passing on their claims ever since. In the natural world, land isn't owned. If it were natural, we'd be born with a deed in our mouths. Land would have been privately held from the beginning. It wasn't.

Retired Monk - "Ideology is a disease"

polycarp2
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Quote stuff:
By that "logic" we don't have a constitutional right to fall in love, marry, have kids, build a home, start a business, read a book... but the First Amendment protect our right to write one?

The right to fall in love is not protected by the Constitution. Perhaps it would help if you reviewed the concepts of "strict scrutiny," "heightened scrutiny," and "rational basis."

You're back in the trap of assuming court decisions even hundreds of years after the Constitution and Bill Of Rights were ratified represent Original Intent. I'm interested in the latter. Who decides which of those unenumerated rights we're allowed to have and which can be restricted? Scalia might say common law rights are acceptable? But are unenumerated rights in the Ninth merely common law rights? Or are Natural Rights more all encompassing than common law rights? They are if we're to believe the Right's of Man which granted isn't American... even if Jefferson reportedly had some role in writing it. But it does reflect the enlightenment of the era where the Constitution is more murky... UNLESS the Ninth is there to protect ALL rights.

The concepts of Constitutional protection is a current doctrine in federal courts at this time.

Again, you can't escape your mindset that current... even flawed court decisions better reflect the intent of the Constitution or its provisions than Original Intent from an era BEFORE those court decisions.

So according to your logic, such as it is... the concept of unenumerated or natural rights is meaningless. Not even marriage is protected. Which is akin to Scalia's position... that anything after enumerated rights... except, perhaps, a few common law rights he approves of, just don't exist and they must be CREATED by government. So much for Natural Rights... or a presumption we get our rights from nature... or a creator.

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Actually, until some despot came along and said everything you see from horizon to horizon is mine....the beginning of private ownership of land.... that wasn't the case.

There were peasants and landlords in ancient Rome. In fact, most of the peasants in ancient Rome were virtual slaves.

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Quote stuff:
Quote Pierpont:

The first was the Senate which until about a century ago was NOT elected by the People, but the state governments. The Senate could easily override whatever came up from the House.

And vice versa.

That doesn't negate what I said. The question was whether the Framers designed the Constitution in a manner that gave more power to the States than the People. If there are two checks on the People... the Senate and the EC, but only one check available for the People... you're hardly making your case. Even if the House can initiate impeachment the Senate can block it. That gives the House one unique power... over taxation and spending. Not small matters but still not a preponderance of power.

As for the EC yes its weighting of the states was a political decision. But you're ignoring the fact that the EC even exists... and one reason was to minimize the influence of larger states. But the EC, which was to represent the wiser elements of society, was also free to vote against the choice of the People. After all, technically it is the STATES... through the EC, that elect the President... NOT the People. Feel free to portray that as NOT being another check on the People if you want.

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Again, you can't escape your mindset that current... even flawed court decisions better reflect the intent of the Constitution or its provisions than Original Intent from an era BEFORE those court decisions.

Flawed or not, that is the doctrine established by federal courts.

You are talking about things that you wish were true; I am talking about the way things are.

So according to your logic, such as it is... the concept of unenumerated or natural rights is meaningless. Not even marriage is protected. Which is akin to Scalia's position... that anything after enumerated rights... except, perhaps, a few common law rights he approves of, just don't exist and they must be CREATED by government. So much for Natural Rights... or a presumption we get our rights from nature... or a creator.

It is not my logic, it is the established precedents of the U.S. Supreme Court.

The Supreme Court has never ruled to my knowledge that marriage is protected by the Constitution. The issue before the Court this term is not whether marriage is protected but rather where denial of legal unions between same sex marriages violates the Fourteenth Amendment guarantee of equal protection and the Fifth and Fourteenth Amendment guarantees of due process.

Federal courts today accept a positive view of the law, not a natural view. You may wish to review the differences between natural law and positive law.

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Quote stuff:
But are the right to have a fair trial, free from unusual punishments, or to be secure in ones papers from government snooping actually "natural rights"? Or are they a new class of rights created out of necessity BECAUSE a government with real powers was created?

The Declaration of Independence, which is not legally binding, reflected ideas about natural law. The U.S. Constitution, on the other hand, is legally binding and reflects ideas about positive law. You might wish to review the differences between the two.

True to a point. The Ninth was a catchall to protect those Natural Rights... at least for freemen. Not to accept that is to render meaningless the very construction of the Constitution as only having delegated powers where the states and the People retain their rights. By your "logic" if all those Natural Rights were too numerous to mention in the Bill Of Rights, then they are not protected... which means the Bill Of Rights expanded SOME rights while negating others over the period BEFORE the BoRs was ratified. That's a nonsensical position created by your mindset that later court decisions matter more than Original Intent... and typical of those who are determined to sweep the Ninth under the carpet.

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The question was whether the Framers designed the Constitution in a manner that gave more power to the States than the People.

I think it depends upon what you mean by the "Framers."

The Constitution was the product of many people, not just the Conventioneers, and the motives of those involved in the Ratification were not consistent and, in many cases, cannot be ascertained with any certainty today.

In any case, as I have written before, I could care less what the "Framers" intended by their "design." What matters is how the current generation interprets and implements the document. In the final analysis, the Constitution means what five out of nine Justices say it means in a written opinion.

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stuff
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Nov. 24, 2012 3:59 pm
By your "logic" if all those Natural Rights were too numerous to mention in the Bill Of Rights, then they are not protected... which means the Bill Of Rights expanded SOME rights while negating others over the period BEFORE the BoRs was ratified.

My logic has nothing to do with anything since I do not sit on the Court.

Unenumerated rights may or may not be protected by the Constitution. Have you reviewed the concepts of "strict scrutiny," "heightened scrutiny," and "rational basis"? I think a review would help you better understand the meaning of "Constitutionally protect rights."

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stuff
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Nov. 24, 2012 3:59 pm
Quote Pierpont:As for the EC yes its weighting of the states was a political decision. But you're ignoring the fact that the EC even exists... and one reason was to minimize the influence of larger states. But the EC, which was to represent the wiser elements of society, was also free to vote against the choice of the People. After all, technically it is the STATES... through the EC, that elect the President... NOT the People. Feel free to portray that as NOT being another check on the People if you want.

While there's no vote on each point brought up during the Constitutional Convention, the topic of distrusting the People to make a wise choice DID come up in the debates over choosing an executive [quote] Mr. GERRY. If the Executive is to be elected by the Legislature he certainly ought not to be re-eligible. This would make him absolutely dependent. He was agst. a popular election. The people are uninformed, and would be misled by a few designing men. [quote] Gerry favored the president be chosen by the governors of each state.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/elector1787.html

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Pierpont
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Feb. 29, 2012 1:19 pm

Well, "rights" change over time.

At one time, all human beings had the right to make equal claims on the fruits of the earth to maintain themselves. It was the only relevancy. Rights change over time.

At one time, king's had rights. The well-being of the people was irrelevant.

Currently, money has rights. The well being of the people is irrelevant.

You have the right to vote. Other critters have the right to freely maintain themselves with the fruits of the earth. They don't, however, have the right to vote. If they did, they'd perhaps vote to maintain their rights instead of seeing them whittled away with a new shopping mall.

Human beings vote away their equal rights to the fruits of the earth. Other critters aren't so stupid.

Retired Monk - "Ideology is a disease"

polycarp2
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Quote stuff:
By your "logic" if all those Natural Rights were too numerous to mention in the Bill Of Rights, then they are not protected... which means the Bill Of Rights expanded SOME rights while negating others over the period BEFORE the BoRs was ratified.

My logic has nothing to do with anything since I do not sit on the Court.

Unenumerated rights may or may not be protected by the Constitution. Have you reviewed the concepts of "strict scrutiny," "heightened scrutiny," and "rational basis"? I think a review would help you better understand the meaning of "Constitutionally protect rights."

Again you're demonstrating you're mired in POST Constitutional legal thinking that we can't know Original Intent... only what the courts later tell us. Either the Ninth means something or it doesn't. You seem determined to sweep it under the rug. I want it brought out in the sunshine and finally fleshed out after centuries of neglect.

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Pierpont
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Feb. 29, 2012 1:19 pm
He was agst. a popular election. The people are uninformed, and would be misled by a few designing men.

The president is only one part of the government and, as far as we can tell from the construction of the Constitution itself, not considered a very important part. Gerry was entitled to his opinion, but his opinion is hardly authoritative.

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stuff
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Nov. 24, 2012 3:59 pm
Again you're demonstrating you're mired in POST Constitutional legal thinking that we can't know Original Intent... only what the courts later tell us. Either the Ninth means something or it doesn't. You seem determined to sweep it under the rug. I want it brought out in the sunshine and finally fleshed out after centuries of neglect.

The Ninth Amendment means exactly what five out of nine Justices say it means in a written opinion, nothing more, nothing less.

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stuff
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Quote stuff:
Quote pierpont:The question was whether the Framers designed the Constitution in a manner that gave more power to the States than the People.

I think it depends upon what you mean by the "Framers."

The Constitution was the product of many people, not just the Conventioneers, and the motives of those involved in the Ratification were not consistent and, in many cases, cannot be ascertained with any certainty today.

Sorry, by the time the Constitution went out to be ratified by the states, it was already set in stone. They could ratify or not. But they could insist on amendments.

Quote stuff:In any case, as I have written before, I could care less what the "Framers" intended by their "design." What matters is how the current generation interprets and implements the document. In the final analysis, the Constitution means what five out of nine Justices say it means in a written opinion.

I'm well aware of your position and have accurately restated... as well as disparaged it, over and over. It's irrelevant to any discussion of Original Intent... which may not always be easy to determine, but it also can't be ignored. In this case the Ninth IS part of the Constitution and also can not be ignored. Therefore there are two choices... to see it as a Rosetta Stone for determining a key question... the balance between government power and rights retained... OR, just buying into timid court decisions... made after centuries of neglect, that are afraid to rock the boat.

All we have to do is look at how the Second has been bastardized to realize some justices use highly suspicious legal doctrines like Textualism/Originalism as figleafs to hide blatantly political decisions. Depending on the courts for wisdom and insight into history is like depending on popular elections or editorials to decide which political party is ideologically correct.

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Pierpont
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Quote stuff:
He was agst. a popular election. The people are uninformed, and would be misled by a few designing men.

The president is only one part of the government and, as far as we can tell from the construction of the Constitution itself, not considered a very important part. Gerry was entitled to his opinion, but his opinion is hardly authoritative.

My point was simply that you are wrong in asserting the EC could not seen as a check on unwise decisions made by People. Even the fact that in our system it's the STATES that technically elect a president... you see to believe this is not a check on the People. Only a POPULAR VOTE where all votes weight the same can be seen as trusting the People.

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Pierpont
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Feb. 29, 2012 1:19 pm
Sorry, by the time the Constitution went out to be ratified by the states, it was already set in stone. They could ratify or not. But they could insist on amendments.

Hardly, as promises to add a Bill of Rights demonstrates. That includes the Ninth amendment. In any case, "set in stone" isn't the same thing as universal consensus about the meaning of the words in the document.

I'm well aware of your position and have accurately restated... as well as disparaged it, over and over. It's irrelevant to any discussion of Original Intent... which may not always be easy to determine, but it also can't be ignored. In this case the Ninth IS part of the Constitution and also can not be ignored. Therefore there are two choices... to see it as a Rosetta Stone for determining a key question... the balance between government power and rights retained... OR, just buying into timid court decisions... made after centuries of neglect, that are afraid to rock the boat.

The Ninth Amendment was not "set in stone," as you put it.

All we have to do is look at how the Second has been bastardized to realize some justices use highly suspicious legal doctrines like Textualism/Originalism as figleafs to hide blatantly political decisions. Depending on the courts for wisdom and insight into history is like depending on popular elections or editorials to decide which political party is ideologically correct.

Blame the U.S. Supreme Court, not me.

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stuff
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Nov. 24, 2012 3:59 pm
Quote stuff:
Quote Pierpont:Sorry, by the time the Constitution went out to be ratified by the states, it was already set in stone. They could ratify or not. But they could insist on amendments.

Hardly, as promises to add a Bill of Rights demonstrates. That includes the Ninth amendment. In any case, "set in stone" isn't the same thing as universal consensus about the meaning of the words in the document.

You love to move the goal post, don't you. The question was about the Framers...and I was responding to your question:

"I think it depends upon what you mean by the "Framers."

I didn't think the Framers was a term in question. It usually applies to a subset of those called the Founding Fathers, only the Framers are those who framed the Constitution at the Constitutional Convention. Those in the states who ratified it, did not write it... though it's likely some Framers were involved in their state's ratification efforts. They are not Framers even if you lumped them all together. So my point remains... the Constitution was signed and set in cement when it went out for ratification. Suggesting amendments... like a bill of rights is NOT the same as what the Framers did... and indeed, technically those Amendments had to originate in Congress not the states. The First Congress can't rightfully be called Framers either... even if some Framers were in Congress.

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Pierpont
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Feb. 29, 2012 1:19 pm
I didn't think the Framers was a term in question. It usually applies to a subset of those called the Founding Fathers, only the Framers are those who framed the Constitution at the Constitutional Convention.

And yet, the "Framers," as you characterize them, had to make concessions with the Anti-federalists to get the document ratified.

The Ninth Amendment was not included because the Philadelphia Conventioneers demanded it.

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stuff
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Nov. 24, 2012 3:59 pm
Quote stuff:
Quote pierpont:I didn't think the Framers was a term in question. It usually applies to a subset of those called the Founding Fathers, only the Framers are those who framed the Constitution at the Constitutional Convention.

And yet, the "Framers," as you characterize them, had to make concessions with the Anti-federalists to get the document ratified.

It's not "my" characterization the "Framers" you have a problem with. It's pretty much the accepted definition. But feel free to dig your hole deeper. The fact that the anti-federalist demanded ADDITIONS to the already signed-off on Constitution doesn't also make them Framers. Sorry to disappoint whatever the hell lame argument you're trying to make.

Quote stuff:The Ninth Amendment was not included because the Philadelphia Conventioneers demanded it.

Gee, it's because Madison was clear that he believed all the rights covered by the Ninth were ALREADY PROTECTED by the very construction of the Constitution. Just because anti-federalist were not convinced doesn't make Madison wrong. But what harm could an additional Bill Of Rights do? Madison was also clear it might place unenumerated rights at risk.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.[quote] By that he means what became the Ninth.
Madison also states[quote] The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

http://www.constitution.org/ac/001/r01-1/bill_of_rights_hr1789.htm

The Ninth was to be the bulwark defending the retained rights of the People against expanding government power. Like the Tenth, the Ninth is a key Rosetta Stone to decoding the Constitution. The Tenth saw plenty of court cases. The Ninth did not.

The problem with the Ninth isn't that it's meaningless. It's that states found it within their right to restrict rights... so no test of federal power was necessary. The 14th opened possibilities but even then there were only timid court decisions a century later.

The problem here isn't the Ninth... it's those who seek to undermine it... and the concept of Natural Rights.

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Pierpont
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“A strict observance of the written laws is doubtless one of the high virtues of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.” - Thomas Jefferson

The only freedom which counts is the freedom to do what some other people think to be wrong. There is no point in demanding freedom to do that which all will applaud. All the so-called liberties or rights are things which have to be asserted against others who claim that if such things are to be allowed their own rights are infringed or their own liberties threatened. This is always true, even when we speak of the freedom to worship, of the right of free speech or association, or of public assembly. If we are to allow freedoms at all there will constantly be complaints that either the liberty itself or the way in which it is exercised is being abused, and, if it is a genuine freedom, these complaints will often be justified. There is no way of having a free society in which there is not abuse. Abuse is the very hallmark of liberty.
-- Former Lord Chief Justice Halisham

Make no laws whatever concerning speech, and speech will be free; so soon as you make a declaration on paper that speech shall be free, you will have a hundred lawyers proving that "freedom does not mean abuse, nor liberty license"; and they will define and define freedom out of existence.
--Voltarine de Cleyre

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DdC
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Mar. 22, 2012 12:39 am
The problem here isn't the Ninth... it's those who seek to undermine it... and the concept of Natural Rights.

No, the "problem" is that you are talking to the wrong people.

If you would like your opinion to influence the U.S. Supreme Court, then you should write a brilliant article, pubish it in a prestigious law journal, appear at legal conferences, lobby legislators, lead a national debate, and convince five out of nine Justices that your opinion is correct.

Or, instead of talking about how you think things ought to be, we can have a discussion about the way things are. Otherwise, your fulminations are just so much hot air.

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stuff
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Nov. 24, 2012 3:59 pm
The problem here isn't the Ninth... it's those who seek to undermine it... and the concept of Natural Rights.

Excellent point.

In addition, the Constitution must frequently be applied to circustances that were never anticipated by the Framers. In such cases, "original intent" is a meaningless concept.

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stuff
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Nov. 24, 2012 3:59 pm
Quote stuff:
The problem here isn't the Ninth... it's those who seek to undermine it... and the concept of Natural Rights.

Excellent point.

In addition, the Constitution must frequently be applied to circustances that were never anticipated by the Framers. In such cases, "original intent" is a meaningless concept.

We've been through this before. It's hardly meaningless. Like history some aspects of original intent may be too murky to determine. As I wrote of the EC, a purpose in allowing the states to actually elect a president was to over ride the People. This DOES appear in the debate records. But no votes were taken on each point so who knows if this was an intent and if it was one, how many who approved the plan. I've long believed laws should preface their clear intent as part of every legislation.

On the other hand there's plenty of more objective aspects to history AND the Constitution for which there is NO doubt as to what was original intent... the 3 not 5 branches, whether there'd be a militia or post office, the formulas for amendment process, a census every 10 years, presidential elections every 4, the 3 classes of Senators etc.

The ambiguities are not lost on me. I do strive to know what I can not know. The real problem here is the certainties of both history and the Constitution seem to be lost on you.

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Pierpont
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Feb. 29, 2012 1:19 pm

Currently Chatting

The Death of the Middle Class was by Design...

Even in the face of the so-called Recovery, poverty and inequality are getting worse in our country, and more wealth and power is flowing straight to the top. According to Paul Buchheit over at Alternet, this is the end result of winner-take-all capitalism, and this destruction of the working class has all been by design.

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