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Scalia says judges shouldn't change Constitution
First Amendment Center ^ | 05/01/07

Posted on 05/02/2007 1:30:21 PM PDT by presidio9

If Americans want to secure new constitutional rights, they should look to the legislative branch, not the Supreme Court, Justice Antonin Scalia said last week.

“If you want new rights, create them by statute,” Scalia said April 27 in a speech at the University of Delaware. “If you want new constitutional rights, then you need to amend the Constitution.”

Defending his “originalist” approach to interpreting what the framers of the Constitution intended, Scalia said too many Americans, from the man in the street to academics and judges, mistakenly consider it to be a document that must evolve to meet the changing norms of society.

“The professorate, the bench and even the American people have all been seduced into believing in, and I hate the term, ‘a living Constitution,’” he said.

“The Constitution is not a living organism,” Scalia added. “It’s a legal document.”

Scalia said the Constitution was properly revered by many as “a rock to which society was safely moored” before changes began occurring under former Chief Justice Earl Warren.

Mocking the idea that the prohibition against cruel and unusual punishment should be interpreted through “evolving standards of decency that mark the progress of a maturing society,” Scalia warned that the flexibility that some desire in interpreting the Constitution could have unintended consequences.

“You can’t assume that it will always create new rights and not eliminate old ones,” he said.

“It’s hard to give a right to one person without affecting somebody else,” Scalia added, noting that a woman’s right to an abortion means the end of life for a fetus.

Outside the theater where Scalia spoke, handfuls of those on either side of the abortion debate staged silent demonstrations. They were joined by two individuals wearing orange jumpsuits and black hoods protesting the treatment of detainees at the Guantanamo Bay military base in Cuba.

Among those in the audience was Scalia’s son Matthew, who is an instructor in University of Delaware’s Department of Military Science.

Scalia also noted that the originalism that guides him and fellow conservative Justice Clarence Thomas does not always mean a conservative outcome.

“Originalism is a two-edge sword,” he said, noting that he cast the deciding vote in a ruling upholding flag-burning as a right of expression guaranteed by the First Amendment.

Scalia said the idea that Constitution should be subject to constant change is illegitimate, especially because there are no criteria for determining how it should change, and because the task is left to unelected judges who have no right to decide, for example, what evolving standards of decency are.

“Even if it is true, the Court shouldn’t be in the business. The Constitution should be amended across the street,” Scalia said, referring to Congress.

“I’d rather the people rewrite the Constitution rather than nine aristocrats do it, but ideally, it should be neither one,” he said.


TOPICS: Constitution/Conservatism; Extended News; Government; News/Current Events
KEYWORDS: activistjudges; antoninscalia; constitution; scotus
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1 posted on 05/02/2007 1:30:24 PM PDT by presidio9
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To: presidio9

Why is this even debatable?


2 posted on 05/02/2007 1:34:05 PM PDT by TSchmereL ("Rust but terrify.")
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To: presidio9

But the left can’t get its agenda implemented through the representative branches of government... oh, what will they do?


3 posted on 05/02/2007 1:35:20 PM PDT by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: TSchmereL
Why is this even debatable?

Because Ruth Ginsburg said so.

4 posted on 05/02/2007 1:36:48 PM PDT by presidio9 (Islam is as Islam does.)
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To: presidio9
“If you want new constitutional rights, then you need to amend the Constitution.”

One would think that this guy, of all people, would understand that new rights can't be created.

5 posted on 05/02/2007 1:41:23 PM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: DuncanWaring
One would think that this guy, of all people, would understand that new rights can't be created.

I'm with you. Universal Suffrage should cease immediately. Women elected Kerry, Gore, Clinton, and Dukakis.

6 posted on 05/02/2007 1:44:45 PM PDT by presidio9 (Islam is as Islam does.)
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To: presidio9
Even Scalia has had some activist decisions. The most recent that comes to mind is the no-knock warrant one where he cited that we down't have to worry about cops because they are well trained now and respect our rights(boy are they ever out of touch with reality there) or the sobriety checkpoint one where they ruled that it did violate the 4th Amendment but that is is OK to do so because we have to do something about drunken driving.

He even ruled once that a dog searching around the outside of a car was not a search of the car, taxing logic itself to its limits.

Scalia can be an activist but hides under this strict constitutionalist mantra.
7 posted on 05/02/2007 1:44:56 PM PDT by microgood
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To: TSchmereL
Why is this even debatable?

Because people with unpopular ideas can't win that other way.

8 posted on 05/02/2007 1:45:16 PM PDT by The Ghost of FReepers Past (Woe unto them that call evil good, and good evil; that put darkness for light..... Isaiah 5:20)
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To: DuncanWaring
This is even worse: "If you want new rights, create them by statute."

Government "creates" rights by statute? Wrong.

9 posted on 05/02/2007 1:49:56 PM PDT by Tailgunner Joe
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To: DuncanWaring
One would think that this guy, of all people, would understand that new rights can't be created.

Or that they don't need to be listed in the Constitution....

10 posted on 05/02/2007 1:55:44 PM PDT by highball ("I never should have switched from scotch to martinis." -- the last words of Humphrey Bogart)
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To: Tailgunner Joe
Government "creates" rights by statute? Wrong.

How can such an obviously intelligent man have so missed the point of the Ninth Amendment?

11 posted on 05/02/2007 2:00:21 PM PDT by highball ("I never should have switched from scotch to martinis." -- the last words of Humphrey Bogart)
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To: presidio9
Universal Suffrage should cease immediately.

Stop the suffraging!

12 posted on 05/02/2007 2:05:09 PM PDT by Dinsdale
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To: presidio9

i stopped after if you want new rights amend the constitution...

i expect more from scalia... the constitution is not an enumeration of all our rights but a protection of all our rights, those that are not found within its pages are reserved to the people and or the states...

we are not limited to the only the rights in the BoR.

teeman


13 posted on 05/02/2007 2:05:44 PM PDT by teeman8r ( (optional, printed after your name on post):)
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To: presidio9
“The professorate, the bench and even the American people have all been seduced into believing in, and I hate the term, ‘a living Constitution,’” he said.

My argument whenever I run into a "living Constitution" believer is "Would you lease a car from a dealer who insisted that the lease contract was a 'living document' that could change on his whim?"

14 posted on 05/02/2007 2:07:10 PM PDT by KarlInOhio (Parker v. DC: the best court decision of the year.)
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To: presidio9
Because Ruth Ginsburg said so.

I caught a bit of an interview with Breyer on Fox (probably when his book came out) -- he was surprisingly (to me) forthright about his view that judges had the right and responsibility(!) to "adapt" the Constitution.

I didn't watch much of it . . . I couldn't!

15 posted on 05/02/2007 2:09:15 PM PDT by maryz
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To: presidio9

Since the Constitution merely enumerates rights endowed to the People by their CREATOR...and a ‘Wall’ now separates the Constitution from any connection with the CREATOR...it seems that the “Constitution” was usurped some time ago (in the Sixties, starting with the activist Warren Court) and, really, is no longer applicable, meaningful, or even consequential to our lives today...


16 posted on 05/02/2007 2:13:54 PM PDT by O Neill (Aye, Katie Scarlett, the ONLY thing that lasts is the land...)
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To: KarlInOhio

Would you want to play poker with someone who stated that the rules were “living”?

If we have a “living” Constitution, we have no Constitution.

It’s a contract with an amendment process.


17 posted on 05/02/2007 2:15:03 PM PDT by MrB (You can't reason people out of a position that they didn't use reason to get into in the first place)
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To: presidio9
“If you want new constitutional rights, then you need to amend the Constitution.”

Already done:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The Bill of Rights almost didn't pass exactly because of the fear of attitudes like Scalia's. Let's listen to James Madison:
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 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.
Unfortunately, Madison's protections against Scalia's view in the 9th Amendment appear not to have worked.
18 posted on 05/02/2007 2:21:01 PM PDT by antiRepublicrat
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To: KarlInOhio
"Would you lease a car from a dealer who insisted that the lease contract was a 'living document' that could change on his whim?"

Good point, but there is another side.

"If your father leased a car for you before you were born, would you want to be held to the lease terms if the only way to change the terms was by getting a super majority of your fellow citizens to agree with you?"
19 posted on 05/02/2007 2:24:03 PM PDT by HaveHadEnough
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To: EdReform

bookmark


20 posted on 05/02/2007 2:24:15 PM PDT by EdReform (The right of the people to keep and bear Arms shall not be infringed *NRA*JPFO*SAF *GOA*SAS)
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To: presidio9
I agree with justice Scalia completely, but, I must tell you, as I see my liberal counterparts destroying the nation with their rulings, it is hard for me to not fight back ruling in such a manner as to send the district back 100 years to the right.
21 posted on 05/02/2007 2:29:24 PM PDT by thiscouldbemoreconfusing
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To: microgood

Scalia doesn’t seem to mind giving some wiggle room in the Constitution when it comes to the power of the federal government, but when a state wants to enforce its powers, or a person his rights, suddenly he (selectively) interprets it strictly. Just look at Gonzales v. Raich, where he completely ignored the ideas of state sovereignty and limited federal powers.

Thomas is, overall, becoming my favorite. And to think I didn’t like him at first.


22 posted on 05/02/2007 2:39:31 PM PDT by antiRepublicrat
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To: antiRepublicrat
Thomas is, overall, becoming my favorite. And to think I didn’t like him at first.

Me too. He is the most strict constitutionalist of them all.
23 posted on 05/02/2007 2:42:11 PM PDT by microgood
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To: DuncanWaring
I'm sure he understands it, but putting it into terms of God given rights would set off a huge firestorm, so he spoke in secular terms & then went on to give an example of the way a government given "right" infringes on the rights of another set of people.

All laws infringe on someone's rights in some way. The Constitution laid out some agreed upon basic rights which we (the government, the people) will work to favor for each other. Freedom of speech versus freedom from hearing "offensive" speech. The Constitution doesn't say our government can't search us or our home, but places rules on what the government needs to do in order to do so.

It's why "Justice" is shown holding a balance, because enforcement of all man made laws involve weighing opposing interests.

24 posted on 05/02/2007 2:46:02 PM PDT by GoLightly
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To: microgood
Me too. He is the most strict constitutionalist of them all.

I can't decide whether Thomas got better, coming out of Scalia's shadow and into his own, or I just need to eat a big bunch of crow for my earlier broad criticism of him. A bit of both, I suppose.

BTW, it was FReepers who specifically pointed out some arguments from Thomas and helped me change my view. I love FR.

25 posted on 05/02/2007 2:46:53 PM PDT by antiRepublicrat
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To: presidio9

Uh HELLO !!! Shouldn’t? How about “judges CAN”T change the constitution”


26 posted on 05/02/2007 2:53:36 PM PDT by diverteach
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To: antiRepublicrat

Bingo! We have MANY rights, not just those listed in the Constitution. Basically, we have the right (liberty) to do what we want to do, as long as we respect the life rights and property of others. Too many conservatives don’t get this. It makes us look like authoritarians.


27 posted on 05/02/2007 2:54:06 PM PDT by RKV ( He who has the guns, makes the rules.)
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To: TSchmereL

The Constitution is a living roll of toilet paper used by the left. Sick.


28 posted on 05/02/2007 2:55:51 PM PDT by gathersnomoss
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To: antiRepublicrat
BTW, it was FReepers who specifically pointed out some arguments from Thomas and helped me change my view.

I was always impressed with his views on the Commerce Clause and his willing to buck the trend of accepting precedent, most of which I learned about on FR.
29 posted on 05/02/2007 2:56:42 PM PDT by microgood
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To: diverteach
Shouldn’t? How about “judges CAN”T change the constitution”

Good point. Since the Constitution forbids 'ex post facto laws', and any Judge never sees any case until it's 'ex post facto', then were a Judge to change the Constitution such a change would be ex post facto and, thus, ipso facto UN-Constitutional.

The only rational conclusion then, since some Judges HAVE changed the Constitution, is that the Constitution is no longer in force...null and void...entirely usurped from the People.

30 posted on 05/02/2007 3:24:15 PM PDT by O Neill (Aye, Katie Scarlett, the ONLY thing that lasts is the land...)
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To: presidio9
Amen to that.

I trust that the Founding Fathers had a greater sense of national sovereignty and citizen rights than do the current self-interested, self-absorbed, self-serving elected and appointed.

The Constitution spells out the path to change. Not McCain’s CFR that tries to infringe legislatively to limit the First Amendment — in a way that benefits McCain and other incumbents by making certain free speech actions criminal offenses.

It is the responsibility of the citizenry to be ever vigilent and hold politicos' feet to the fire and maintain OUR rights as citizens. Too many politicos would gladly infringe on and erase those rights legislatively.

31 posted on 05/02/2007 3:33:22 PM PDT by TomGuy
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To: O Neill
You are correct....unfortunately
.
1947 Everson vs. Board of Education.
.
This was the beginning of the end.
32 posted on 05/02/2007 3:41:32 PM PDT by PEACE ENFORCER (Liberals; People That are So Open minded Their Brains Have Fallen Out !)
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To: HaveHadEnough
we could do/change hypotheticals all night..

change "car lease" to "credit card"....most credit cards are variable rates...they change like the wind....a living contract...and we have no say in the changing rates.

the other side, just a bit different..try this on for size

my father leased a car when before i was born...the terms of the lease are the same for everybody...in fact everybody is covered under the same lease...the best lease of all-times
The terms of the lease state, you can have change, but only if enough of your fellow citizens want the same change.

Seems ok to me as we get the final say so.

33 posted on 05/02/2007 3:50:35 PM PDT by stylin19a (Bad golf shots come in groups of 3, a 4th bad shot is the start of the next group of 3.)
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To: TSchmereL
Why is this even debatable?

Exactly. Otherwise, you've got nine men in black robes who can dictate anything they wish, and our Republic is dead. Or to paraphrase Ann Coulter, think of how the liberals would feel if there were nine conservative justices dictating to liberals? They'd be ballistic.

34 posted on 05/02/2007 4:13:52 PM PDT by Hardastarboard (DemocraticUnderground.com is an internet hate site.)
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To: DuncanWaring

You said: One would think that this guy, of all people, would understand that new rights can’t be created.
***

I could not disagree with you more. I don’t know that I support the addition of any rights, but they can be created in the law. Such rights are not natural rights, but they may be rights nonetheless.


35 posted on 05/02/2007 4:21:38 PM PDT by NCLaw441
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To: Berosus; Convert from ECUSA; dervish; Fedora; Fred Nerks; KlueLass; Seadog Bytes; ...
Ping!
36 posted on 05/02/2007 4:21:39 PM PDT by SunkenCiv (I last updated my profile on Saturday, April 28, 2007. https://secure.freerepublic.com/donate/)
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To: microgood

You said, in part: He even ruled once that a dog searching around the outside of a car was not a search of the car, taxing logic itself to its limits.
***
A dog sniffing outside of a car is simply detecting an odor that has escaped the car. If the odor remained inside the car, the dog would never smell it. I would say that this is akin to a policeman at the front door of a house, seeing blood oozing out the door. Seeing that blood is not a search of the house, but the sight of that blood might provide the probable cause to search.


37 posted on 05/02/2007 4:25:40 PM PDT by NCLaw441
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To: NCLaw441
A dog sniffing outside of a car is simply detecting an odor that has escaped the car. If the odor remained inside the car, the dog would never smell it. I would say that this is akin to a policeman at the front door of a house, seeing blood oozing out the door. Seeing that blood is not a search of the house, but the sight of that blood might provide the probable cause to search.

But if a policeman is at someone's door or has pulled someone over it is probably for another reason. If a dog is sniffing around a car, the entire reason the dog is there in the first place is to perform a search so it is disingenuous to say the dog is not searching since that is its sole purpose of its existence at the scene.
38 posted on 05/02/2007 4:37:25 PM PDT by microgood
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To: stylin19a
Seems ok to me as we get the final say so.

You're right...analogies can be changed all night.

It has always given me a twinge of discomfort, however, that a strict majority of people must live with a constitution which they did not create and which they cannot change on their own. Rather, the majority must enlist a portion of the minority to create a super-majority to change the rules devised by long dead people.

In this, I must agree with Thomas Jefferson, who said that constitutions (and laws) should automatically expire, as repeal and expiration are not equivalent:

"Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal." --Thomas Jefferson to James Madison, 1789. ME 7:459, Papers 15:396
39 posted on 05/02/2007 4:49:09 PM PDT by HaveHadEnough
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To: TSchmereL
Why is this even debatable?

Because of the Penumbra Doctrine.

40 posted on 05/02/2007 4:55:43 PM PDT by Polybius
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To: PEACE ENFORCER
1947 Everson vs. Board of Education...This was the beginning of the end.

Thanks for the info. Golly, that was BEFORE I was born so, though I didn't know it, I was born Constitutional-less...

41 posted on 05/02/2007 5:07:50 PM PDT by O Neill (Aye, Katie Scarlett, the ONLY thing that lasts is the land...)
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To: NCLaw441
I don’t know that I support the addition of any rights, but they can be created in the law.

OK, I'll bite.

What's a right that can be created in the law?

42 posted on 05/02/2007 5:10:11 PM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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To: NCLaw441
I don’t know that I support the addition of any rights, but they can be created in the law.

Yes, but if they're created by JUDGES, then the People have been bypassed. The new right(s) should have been created by the Legislative branch, as representatives of the People. Anything else is UN-Constitutional, and since we have 'anything else' happening with uncanny repetition, then the rational bottom line is that we are a People without a functional, operating Constitution.

43 posted on 05/02/2007 5:16:11 PM PDT by O Neill (Aye, Katie Scarlett, the ONLY thing that lasts is the land...)
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To: O Neill

Wrongo. We have many rights which are not listed in the Constitution. See the 9th Amendment. The government has limited powers (or did until the courts threw out the Constitution in the 1930s).


44 posted on 05/02/2007 5:38:10 PM PDT by RKV ( He who has the guns, makes the rules.)
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To: DuncanWaring

A legislature could create a right to food, for example. I don’t support such a right, but that is an example. Congress has created a right not to be discriminated against due to race, sex, etc. These are not natural rights, but they have been created by legislative act. I oppose, and argue that the courts cannot create or derive rights that are not legislated, however.


45 posted on 05/02/2007 5:41:08 PM PDT by NCLaw441
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To: microgood

The other reason requires not probable cause, but reasonable suspicion. Usually this is the result of a traffic stop...


46 posted on 05/02/2007 5:45:39 PM PDT by NCLaw441
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To: TSchmereL

Because half of the electorate, and all of the socialists in the establishments of school, media, government and society decided that the ends justify the means and the law means nothing if it does not produce the desired pro-abortion, pro-homosexual, pro-environment, pro-Communist, anti-Christian, anti-capitalist, anti-military, anti-gun result.


47 posted on 05/02/2007 5:47:42 PM PDT by Freedom_Is_Not_Free
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To: KarlInOhio

Quote, ‘My argument whenever I run into a “living Constitution” believer is “Would you lease a car from a dealer who insisted that the lease contract was a ‘living document’ that could change on his whim?” ‘

That is an invalid, uneffective argument. The problem with your making such an argument presupposes that liberals are capable of this thing called “logic”, which they are not. The only respond to raw emotion.

This is why you can’t reason with a liberal. Logic merely confuses them.


48 posted on 05/02/2007 5:52:29 PM PDT by Freedom_Is_Not_Free
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To: RKV
We have many rights which are not listed in the Constitution. See the 9th Amendment. The government has limited powers (or did until the courts threw out the Constitution in the 1930s).

There's the problem. I agree, we (the People) have rights not enumerated in the (defunct) Constitution. But the 9th Amendment is IN the Constitution, which we all seem to agree was "thrown out"...no longer applicable...though we may not all agree on the exact year that happened.

If the Constitution (and the 9th Amendment) did still apply, however, then we (the People) could enumerate any previously-unenumerated rights in that Constitution, through our elected Representatives or by amending that Constitution. JUDGES have been doing that for us, however, WITHOUT consulting us, and THAT'S what's wrong. They have no business doing that IF the Constitution were still functional and operative (which, agreed, it's NOT).

Examples of such unenumerated rights that COULD, theoretically, be created properly are limited only by the imagination of the People...

1-Right to college education on demand. Those (People) who cannot afford one, will have one provided to them. Apply to the Dept. of College Education...

2-Woman's right to buttered popcorn on demand. Those (Women) who cannot afford it, will have some provided to them. Apply to the Dept. of Buttered Popcorn.

3-&etc...

49 posted on 05/02/2007 6:01:21 PM PDT by O Neill (Aye, Katie Scarlett, the ONLY thing that lasts is the land...)
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To: NCLaw441
A legislature could create a right to food, for example.

A "right to food" places upon someone else an obligation to provide said food if someone can't provide their own.

Any "right" that imposes an obligation on someone else is not a "right".

Q: If you call a dog's tail a "leg", how many legs does a dog have?
A: Four. Just because you refer to a tail as a "leg" doesn't make it a leg.

50 posted on 05/02/2007 6:07:32 PM PDT by DuncanWaring (The Lord uses the good ones; the bad ones use the Lord.)
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