Originally posted by sh76didn't the Founders (all hail the Founders!) grant the power of legislation to LEGISLATORS? and NOT to the Supreme Court?
You think the Supreme Court ought to be in the business of enforcing rights that are completely non-existent in the Constitution to the point that it should prevent states from enacting legislation to conform to SCOTUS' interpretation of natural or retained rights?
Originally posted by KazetNagorraThe Senate has essentially a veto, but it is the President who appoints. And once you're on the Supreme Court, you're on unless you can be impeached for Treason, Bribery or High Crimes or Misdemeanors.
But they made the legislators decide who is a member of the SCOTUS...
Originally posted by no1marauderI would restate it as follows:
Yes. The existence or non-existence of rights in the Constitution is irrelevant. The Framers never thought of the Constitution as creating or limiting fundamental rights and Madison tossed in the Ninth Amendment specifically to foreclose the argument that Scalia and presumably you are making. Of course, he made the argument that a Bill of Rights was unne ...[text shortened]... alluded to is: " Right A isn't enumerated in the Bill of Rights therefore it does not exist".
Right A isn't enumerated in the Bill of Rights; therefore it it not within the authority of the federal government to force states to guarantee it to its citizens.
Originally posted by sh76You can restate it however you want; however such a philosophy is contrary to that of the Framers. A Fundamental Right which a State doesn't have to recognize is an absurdity.
I would restate it as follows:
Right A isn't enumerated in the Bill of Rights; therefore it it not within the authority of the federal government to force states to guarantee it to its citizens.
Originally posted by no1marauderNow THAT is a more interesting discussion. So if all the fundamental rights the state should be recognizing are not enumerated in the Constitution, where oh where do we find them? Do we all have to go read Locke?
You can restate it however you want; however such a philosophy is contrary to that of the Framers. A Fundamental Right which a State doesn't have to recognize is an absurdity.
Originally posted by sh76It's precisely because of that Hamilton didn't want a Bill of Rights in the first place: he predicted that in the future some people would use the non-mention of some obvious rights in the Bill of Rights as rights not worthy of protection.
I would restate it as follows:
Right A isn't enumerated in the Bill of Rights; therefore it it not within the authority of the federal government to force states to guarantee it to its citizens.
Thanks for proving him right!
http://www.constitution.org/fed/federa84.htm
http://en.wikipedia.org/wiki/Federalist_No._84
Originally posted by adam warlockAnd yet the bill of rights was passed anyway
It's precisely because of that Hamilton didn't want a Bill of Rights in the first place: he predicted that in the future some people would use the non-mention of some obvious rights in the Bill of Rights as rights not worthy of protection.
Thanks for proving him right!
http://www.constitution.org/fed/federa84.htm
http://en.wikipedia.org/wiki/Federalist_No._84
In all seriousness, I have 2 questions, No1, regarding the idea of natural rights being inherent and independent of the Constitution:
1) Whence do these rights come? I feel fairly safe in assuming that you're not an ardent theist and so I'm assuming you're not speaking for God. So, why is it inherent that people have certain rights and who originally decided or decides what these rights are and who is entitled to them and to what extent?
2) Don't you think it's a little dangerous to entrust the absolute authority to make the decision as to what rights are available to whom to 5 individuals for the entire USA? What if 5 members of the US Supreme Court wake up tomorrow morning and decide that government sponsored healthcare is a natural right belonging to everyone? (And I don't think this is all that farfetched... I think you might already get as many as 4 such votes as it is). Should the US Supreme Court order the Executive of the United States to enact a universal single payer healthcare system? What if A Republican is elected in 2012 and Ruth Bader Ginsburg is replaced on the SCOTUS by Richard Posner? It is possible that Scalia, Thomas, Roberts, Alito and Posner might decide that being free from economic regulation is a natural right of businesspeople? Shouldn't there be some check on the authority of 5 people to force all political subdivisions of the United States to recognize the right of the month that they subscribe to?
Originally posted by no1marauderHas the Supreme Court ever recognized a fundamental right that it did not find a basis for in the Constitution?
A Fundamental Right which a State doesn't have to recognize is an absurdity.
Even when recognizing the right to privacy, most opinions in Griswold and its progeny looked to Constitutional provisions as bases for that right (remember "penumbras and emanations"?)