Posted on 06/07/2004 2:10:58 PM PDT by tpaine
Not what I said. I just said that the law would be more likely to reflect the will of the majority.
Take flag burning, for instance. Legal in the U.S. If Texas could vote on the issue independently from the rest of the U.S., would flag burning be legal in the state of Texas? I think not. (Hey, don't you guys respect "rights"?)
"In the 80 or so years before the 14th Amendment, "Natural" rights were violated at will by the states."
Hmmmm. Couldn't have been that bad. It took another 50 years after the 14th amendment before the BOR started to be incorporated.
Close Mr paulsen but no cigar. You're reading way too much into #10 there . I win. You're too old fat man...and your tits are too big.
Hmmmm. Couldn't have been that bad.
Yes paulsen it was so 'bad' we had to fight a bloody civil war about it.
It took another 50 years after the 14th amendment before the BOR started to be incorporated.
Yep, the southern states just ignored the 14th, by & large.
Just as State, Fed, & local governments ignore our BOR's to this day.
Damn shame, and Rinocratic enablers like you are the ones responsible, paulsen.
Granted your point about interpretation, robertpaulsen. But my point is there's nothing wrong with the federal BoR as it is written. The problem is the refusal of judges and justices to follow the plain language and meaning of the BoR. Such that when the language states the government may not prohibit or infringe, the courts seem to regard these texts as suggestions, not demands that they are bound by their oaths of office to comply with.
What passes for the liberal mind these days does not honor or respect the ideas and values of the Framers. As far as a whole lot of such people are concerned, the Constitution might as well have been written by Mickey Mouse, for all the authority it carries with them.
Actually, the Supreme Court began striking down state laws shortly after the 14th Amendment was passed. It wasn't called, incorporation, per se, but it was based on the predicate that state laws could not be violative of natural rights. For example, look at the Lochner case and related jurisprudence. "The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence," by Howard Gillman presents a compelling case. Gillman begins with a clear thesis: that the Lochner era jurisprudence was grounded in a constitutional tradition rooted in the founders' desire to form a faction free republic. This tradition held that the states' police powers could only be used in a neutral manner to benefit the general welfare; that the state couldn't use its regulatory power to benefit one faction only.
"If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw — government that has abandoned all its powers — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control.
And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated state government!
You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!
You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity?
What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up. This is a real, actual defect. It must strike the mind of every gentleman. "
This thread shows a likely way the courts will incorporate the Second Amendment: it will be paired with a definition of an unenumerated right to be protected from gun violence. Then the California gun control regime will be instituted nation-wide.
Can't happen under Barnett's approach. Try reading it.
But first lay your adolescent hero-worship aside, if you can.
LOL. Awww . . . somebody needs a nap. At least you admit that you are criticizing something you haven't even read.
You try reading it. But first lay your adolescent hero-worship aside, if you can.
LOL. Awww . . . somebody needs a nap. At least you admit that you are criticizing something you haven't even read.
130 -Tex-
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Paulsen & mrs mith are just two minor members of FR's 'states rightist' crowd; -- a group who NEVER admit their real agenda.. -- Majority rule autocratic States in a Federal system based on 'moral law'.
I think an apt term for it is 'Communitarianism'.
From kindness I've attributed that to hero-worship.
This thread is about the ideas expressed in a particular writing which is essentially a condensed version of a recently published book more completely expressing the idea. Pointing out the fact that everyone of your posts is based upon incorrect assumptions about that book which you have not even read is not ad hominem. I'm just trying to focus you in the right direction so you can actually make a point.
If you want to point out the fact that abandoning states rights or giving unelected judges the power to define unenumerated rights is unwise, fine. I agree. Whoop-de-freakin'-do. It has nothing to do with this thread, which is about a particular writing that is consistent with both of those views. If you could actually form a rational thought as to why it is not ("it" being the ideas expressed in the writing and not what your stereotype libertarian believes), I'd love to hear it. I'd be surprised, but I'd love to hear it.
I have followed Randy's views on the Ninth since Lawrence, it would surpise me very much if his book is substantially different from the views he expressed in his amicus or on the web.
From the article:
"The type of "judicial conservatism" that will eventually emerge in the third century of the Bill of Rights, however, is still very much in doubt. Will it be a majoritarian conservatism of judicial deference to majority will as expressed in legislation?
Or will it be a more libertarian conservatism that views the courts as neutral magistrates empowered to protect the individual from the government?"
Madison's is the first "majoritarian conservatism" view: that there are rights that the court has to recognize.
Randy is advocating the second view: "libertarian conservatism", which lets the courts define what the rights are.
[Bowers v]Hardwick V. shows the constitutional application of the Ninth to look for a right to recognize; Lawrence V. could be done under the Ninth in Randy's view- just define it as a right.
Apparently you'd claim that Randy is advocating replacing "majority will as expressed in legislation" with something specific.... what? what?
His writings that I have seen offer nothing but the federal "neutral magistrates " definitions of "natural rights".
You are right that the passage cited in this thread, as you say, offers nothing but the federal "neutral magistrates " definitions of "natural rights". The book offers a structure for identifying those rights based upon originalist interpretation of the framers of the Constitution and the 14th Amendment. It comes to sort of a Lochner-era conclusion: since we cannot define the innumerable rights to be protected, they are best protected by striking down laws which take away from one group of people to give to another. For example, welfare takes property from the rich to give to give to the poor. This would be a violation of the right to own property. Only when one person's liberty interest invades another can the government act to prohibit an activity.
Now since I am a conservative, like yourself, and not a libertarian, I was concerned that this leaves government no role in enforcing moral norms. Barnett does believe that a physical invasion of another's liberty must take place in order for the government to regulate an activity. I disagree, but this alone is no reason to completely reject his approach. I simply believe that the government would have the authority to prohibit behavior which was not a physical invasion of another's liberty, but still constitutes a nuisance, e.g. selling drugs, using drugs in public, selling pornography, running a brothel, etc.
Basically, some of the more socially libertarian consequences of his theory are not desireable to conservatives. But that is no reason to trash the theory altogether when, if changed slighty, if offers a more effective alternative to strict constructionalism for conservatives to promote their ideals.
He fails in originalism: "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."
And the evidence is that the Fourteenth was meant to apply the first eight of the BOR amendments to the states.
And, as we agree, he leaves an undue discretion to the judiciary anyway.
"e.g. selling drugs, using drugs in public, selling pornography, running a brothel, etc. "
-A liberal would instead list: "guns, unemployment, lack of health insurance, unwed homosexuals, etc." (well, I don't know just how a Liberal would phrase them).
The recent spate of research on the Ninth, which Randy's work has encouraged, has been very constructive ( especially since it has led to Levy's excellent "lost history of the ninth").
In trying to form a 'more perfect union', I doubt the courts were chosen as the tool of first choice. My dislike of my state's infringments on RKBA (CA) probably put me in line with others from other states with similar frustrations.
I don't think the founders ever conceived that someone traveling from say, California to Texas, might be jailed in Arizona or New Mexico (along highway 10) for carrying a handgun since (for this example) the 'majorities" in AZ and NM may have decided to implement restrictive gun laws.
Yet, allowing the supreme court to 'act' on each dispute arising from the states seems an invitation to tyranny, should they find a compelling federal interest in the case (which often is a load of crap since fed rights have been pretty well defined).
Might our Congress pass a law stating that each state that hasn't incorportated the language found in the second ammendment in their state's constitutions to be in contempt of forming the 'perfect' union, and thus, hostile to it's formation and no longer recipients of highway funds, etc.? I'd call it: The More Perfect Union Law.
I don't know what the limit is to what can be required to participate in a "volountary" program like the Highway Fund. That is a path frequently used to get around the usual constitutional limits on what the feds can requirte of a state however.
IMO the strict gun control regimes of those states are probably the result of a late nineteenth century intent to keep weapons out of the hands of the Chinese and Mexican immigrants- and should be overturned on 14th Amendment grounds. I've never seen any research on that though.
Gotta love "The More Perfect Union Law"
Thanks.
I propose a 100 yr. ammendment that will allow the 'people' (who's consent is that's which is required in order for any government be considered legitimate) to vote upon a referendum made up of grievences the people may have toward this government to be held every 100 years. We don't need guns (yet) to make changes in our government when We-The-People hold the reins. We are their masters.
Abortion, affirmative action, EPA, Education, land grabs, huge deficits, regulations out the Ying Yang, infringements on the 2nd ammendment, the IRS, border control, etc. each and every encroachment upon what should be state's/individual's rights could be addressed.
We could call it the "We never trusted you government bastards" ammendment. Or how about, "You've had a hundred years to screw things up, move over, b*otches" ammendment. Or how about, "A More Perfect Union Takes Practice" ammendment. Either way, I predict something will happen.
The founders may have been very wise in their vision of overthrowing tyranny by force as possibly the only feasible means, however, I'd like to give the people a chance at the ballot. That THE PEOPLE have been dumbed down and softened with socialism concerns me. But what the heck, let's find out sooner, rather than later, what our fate holds in store for us. This frog is getting tired of the pot and it's getting warm in here.
Thanks for fighting the good fight tpaine.
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