Don't frighten the horses: What Larry Craig tells conservatives about ourselves.

http://www.logcabin.org/logcabin/larry-craig-resigns.html

You wrote:

It is difficult enough to defend what one has said from the assault of the Philistines but it is beyond endurance to have to defend what one did not say.

In discussing seriously whether a citizen can claim constitutional protection against state or federal intrusion because he is protected by the ninth or 10th amendment (or more precisely put: Because the government lacks the constitutional power to interfere because of the 9th or 10th amendment) it is important to distinguish as conservatives between what is reality and what ought to be reality in constitutional interpretation.
Are we talking about the world of constitutional jurisprudence as it is or as we want it to be?

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

There are at least two ways to interpret this language.

To paraphrase your own words just above:

It is difficult enough to defend what our Constitution says from the assault of the Philistines but it is beyond endurance to have to defend what it does not say.

I agree There are far more than two ways to "interpret" the language of our Constitution; -- but any way that leads to denials of, - or restrictions to, - our rights to life, liberty, or property are simply wrong in concept and in principle.

It does no good to bluster on FreeRepublic claiming constitutional rights that do not exist --

You claim our right to privacy does not exist, not me.

-- and which the Supreme Court will not acknowledge. --
-- we should deal with the state of the law as it actually is. The Supreme Court has consistently held that the ninth amendment, in itself, does not establish, that is create, any right by which a citizen can restrain the government. Full stop.

Here again, -- "It is difficult enough to defend what our Constitution says from the assault of the Supreme Court, but it is beyond endurance to have to defend what it does not say."

This wording, -- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"; does not attempt to "-- establish, that is create, any right by which a citizen can restrain the government. Full stop --"

You wrote:

" When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom.

You think prohibitions extend freedom?

Of course, I think nothing of the kind, I think precisely the opposite which is exactly what I said.

What you wrote just above is clear, -- what you 'said' about it now is not. Full stop.

In context, at # 121 you wrote:

We do not have an explicit constitutional right to use drugs.
Therefore I see the power of the state to legislate or prohibit the latter to be far greater than its power to regulate the former.
I do not see this as a slippery slope and I do not see it as a compromise of freedom.
When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom.

You think prohibitions extend freedom?

Of course, I think nothing of the kind, I think precisely the opposite which is exactly what I said.

What you wrote just above at #121 is clear, -- what you 'said' about it now is not. Full stop.

Tom: at first I thought you were being willfully obtuse but now on second reading of it I see that it is possible that you have read it exactly the opposite way from what I intended. When I say, " When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom." I meant that the act of deploring prohibition and it's unwisdom is an extension of freedom, not that the prohibition itself is an extension of freedom. I can see how you read it that way, I believe the context was clear, but it was certainly possible to read it your way. For the record I do not now and did not then believe that prohibitions are an extension of freedom, that is why I deplore them.

I think another missunderstanding has arisen, let me refer you to your post number 105. First you quote me as follows:

"in view of the explicit protection afforded by the Second Amendment, I do not think that the state has the right to try to get at gun violence by restricting gun ownership.

However it is probably constitutional to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right.

That is not to say that I think it is wise."

After quoting Ironjack, you say:

If it is [big IF] "probably constitutional" to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right; --

-- it can be, and is being used to try to get at gun use by prohibiting carrying/possession in the absence of a specific States constitutional 'rights'. -- Namely in New York, Illinois, and California.

Attempting to say it isn't 'wise', is in effect a form of acceptance. It tells us a lot about conservatism.

I read you to be saying in the last paragraph (Attempting to say it isn't 'wise', is in effect a form of acceptance. It tells us a lot about conservatism) referred to to drug use because that is in the only thing in the context that makes sense. I had previously stated my opinion that "I do not think that the state has the right to try to get at gun violence by restricting gun ownership" followed by this explicit statement that was probably constitutional concerning drug use-but not wise-meant that the lack of wisdom applied to drug use and not to gun possession.

But your remark (-- it can be, and is being used to try to get at gun use by prohibiting carrying/possession in the absence of a specific States constitutional 'rights'. -- Namely in New York, Illinois, and California) leads me to believe that you think I was talking about gun possession. Hence when I say it is not a slippery slope, you think I was conceding the constitutionality of control of guns for that purpose when I was talking about drugs. I say it is not a slippery slope to maintain the unconstitutionality when it concerns the guns, not drugs. My reference was not to the actions of the government which constituted the slippery slope, but to my remarks as they related to the unconstitutionality of gun control. Hence, it is not slippery slope toward more government control to say the control of guns is unconstitutional which is what I intended to say and think I did say.

You and I simply have a basic disagreement about whether the government can control drug use constitutionally. I think they can, that is simply my reading of the Constitution, but I don't think it is wise to do so. You think we have a natural right to use illicit drugs and I suppose you would apply that through the ninth and 10th amendments. I don't think we have a ghost of a chance of getting that kind of a ruling out of any Supreme Court that exists in our lifetime. However to have different views about the state of the constitutional law does not lead me to suggest that a person who does not share my view it is somehow possessed of a moral failing. Justice Scalia,, a bona fide conservative, shares my view of the ninth amendment and not yours. That does not make you wrong, but it certainly does not make me any less of a conservative.

Incidentally, speaking of Scalia, he does not think the right of privacy exists to the extent that allows an abortion in the teeth of a state prohibition either. That does not mean that he does not understand the state of the constitutional law when the issue has already been decided. Your ninth amendment argument has not been decided. My opinion is that you will not gain ground with it on the gun issue and that, if the guns are to be protected from states, that must be done through the 14th amendment on due process grounds. I think there is a chance that this can happen. And I stay with my view that the incorporation of the right to bear arms into the 14th amendment is dramatically enhanced because it has been enshrined in its own Bill of Right.

I hope this clears up the confusion between us and that you understand that we are essentially on the same page on all these issues except on the probabilities of carrying the ninth amendment argument. We agree on the right to bear arms. We apparently agree that the government ought to not to prohibit the use of drugs. We disagree whether the government has the power to do so because of the ninth amendment.

There's not that much daylight between us.

We agree on the right to bear arms. We apparently agree that the government ought to not to prohibit the use of drugs. We disagree whether the government has the power to do so --

Stop there. We have a basic disagreement - [Lots of daylight].

Governments in the USA have no power to deny or prohibit our rights to life liberty or property [enumerated rights, -- or not] without using due process in the writing and enforcing of law.

You admit that we have a basic disagreement about whether the government can [prohibit]/control drug use constitutionally. You think they can, " -- because of the ninth amendment. --" ?
- Sorry, but I can't understand that basic argument.

You claim that:

Justice Scalia,, a bona fide conservative, shares my view of the ninth amendment and not yours. --

That we have no:

"-- natural right to use illicit drugs -- ["illicit" by decree]

And that you do not:

"-- think the right of privacy exists to the extent that allows an abortion in the teeth of a state prohibition either. --"

All of our States have prohibitions on murder. If a jury agrees that a specific case of abortion is murder, than you and I and Scalia agree.

We do not agree that State, or local, or federal legislators have the power to decree prohibitions on all aspects of life, liberty or property.

I am content to leave the matter where it is and let the reader of this thread judge the merits on our written record.

I am content to leave the matter where it is and let the reader of this thread judge the merits on our written record.

Fine with me. -- It's your essay, and if you choose not to defend some of its more controversial points, - so be it.

I haven't heard any conservatives make the argument you are claiming that they are making.

Hypocrisy? Bill Clinton had only recently signed into law a bill which criminalized a superior having sexual relations with his subordinates when the whole Monica Lewinsky thing happened. Yet, Bill Clinton was not recognized as a hypocrite, etc. I think you are focusing in on the wrong trail.

Bill Clinton had only recently signed into law a bill which criminalized a superior having sexual relations with his subordinates when the whole Monica Lewinsky thing happened.

Huh?

Citation please.