Originally posted by adam warlock And yet his predictions came true anyway.
My point is that Hamilton's fear was rejected.
The framers did choose to enumerate rights in the Bill of Rights. As such, it makes sense to look at this enumeration as grounds for determining which rights a guaranteed to be free from state interference.
If enough people agree that some additional right is worthy of protection from state interference, the Constitution can always be amended.
Originally posted by sh76 If enough people agree that some additional right is worthy of protection from state interference, the Constitution can always be amended.
Hamilton's point was that this is sloppy thinking.
Originally posted by no1marauder 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".
What would have happened had the Bill of Rights not been included?
After more than 200 years, it now seems like it's almost holy writ that we have a guarantee of freedom of speech, religion, press, and assembly. But what if those rights had not been specifically enumerated at the onset of the Constitution? It would have been much easier in the ensuing generations for governments to pass laws violating those 1st Amendment principles, and to develop a culture that did not see these freedoms as being as obvious as we today see them.
Originally posted by sh76 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 ...[text shortened]... ivisions of the United States to recognize the right of the month that they subscribe to?
I find nowhere in the voluminous writing of the Framers, in the debates in the Constitutional Convention or in the ratifying Conventions the fear that the government might recognize TOO MANY rights. This is the fear that Scalia and right wingers continually salivate about. Perhaps you could point to somewhere, anywhere that any Framer ever made any statement to that effect. I'm sure such ardent fans of Originalism should have little problem with such an exercise.
Theism is not required in order to recognize that humans have a particular nature and inherent in that nature is certain rights.
Originally posted by no1marauder I find nowhere in the voluminous writing of the Framers,
As an aside, why would you read all of "the voluminous writing of the Framers"? Are you a Constitutional Law professor or author?
But I digress.
The problem is not that there may be "too many" rights belonging to the people. The problem is the vesting of authority (or lack thereof) in any one body to enforce those rights. Where exactly do the federal courts get the authority to force states to recognize and abide by rights not in the Constitution?
Originally posted by sh76 Well, everyone's wrong sometimes. Hamilton is no exception.
Your argument is that because Hamiliton correctly predicted that people like Scalia and yourself would erroneously suppose that inclusion of certain enumerated rights precluded the existence of others makes him "wrong"? Strange.
And Hamilton didn't even know that Madison would be smart enough to add the Ninth Amendment which is textual support for the Framers' belief that a Right didn't have to be enumerated in the Constitution to be reserved to the People. And still Scalia and you insist on a crabbed reading that is completely contrary to both Constitutional text and the Framers' political philosophy while insisting that the the intent of the Framers is controlling! Inconceivable.
Originally posted by sh76 As an aside, why would you read all of "the voluminous writing of the Framers"? Are you a Constitutional Law professor or author?
But I digress.
The problem is not that there may be "too many" rights belonging to the people. The problem is the vesting of authority (or lack thereof) in any one body to enforce those rights. Where exactly do the federal cour ...[text shortened]... get the authority to force states to recognize and abide by rights not in the Constitution?
Ultimate authority must rest somewhere. The Constitution vested the authority to judge cases rather unsurprisingly in the Judicial Branch. Perhaps you'd care to revisit Marbury v. Madison.
I'm not going to waste time personalizing the matter, but even someone primarily interested in the exciting field of Wealth Transmission should occasional crack open Farrand (I had those volumes for many years on my night stand).
EDIT: Perhaps books aren't your thing, so here it is online: http://memory.loc.gov/ammem/amlaw/lwfr.html
Originally posted by sh76 So John Locke becomes the sole arbiter in all of human history as to what inherent rights all people are entitled to, the democratic process notwithstanding?
Non sequitur.
The Framers did not believe that the democratic process was an arbiter of what your inherent, inalienable rights were.
Originally posted by no1marauder Theism is not required in order to recognize that humans have a particular nature and inherent in that nature is certain rights.
Of course, there have been many societies ruled by elites under the principle that human beings had only those rights that the elites, in their beneficence, chose to give them. But these type of societies are inherently unstable (as well as rather unpleasant).
Originally posted by no1marauder Of course, there have been many societies ruled by elites under the principle that human beings had only those rights that the elites, in their beneficence, chose to give them. But these type of societies are inherently unstable (as well as rather unpleasant).
The implicit comparison here appears to suggest that those existing liberal societies with universal rights are 'stable', but, given that such societies have existed formally for only a few hundred years and substantively for considerably less than that, if at all, such a comparison is unwarranted. Plenty of non-universal rights societies existed for considerably longer than have universal-rights societies, and any supposed internal instability surely means little placed beside that longevity - itself a surer measure of their stability.
Besides which, the internal or external stability of modes of social organisation, let alone so disastrously amorphous a notion as 'pleasantness' or otherwise (!?), surely tells us nothing of any real value about their relation to any sort of 'human nature'.
Originally posted by DrKF The implicit comparison here appears to suggest that those existing liberal societies with universal rights are 'stable', but, given that such societies have existed formally for only a few hundred years and substantively for considerably less than that, if at all, such a comparison is unwarranted. Plenty of non-universal rights societies existed for considerab ely tells us nothing of any real value about their relation to any sort of 'human nature'.
Societies which recognized, in fact, the principle of fundamental, equal human rights were the predominant organization for tens of thousands of years before so-called "civilization".
Any animal placed in an artificial, unnatural environment is less likely to thrive. A tiger living in a 10' by 5' cage in a zoo and a human being living in a society which doesn't recognize the fundamental rights which arise from his nature are in analogous situations.
Originally posted by no1marauder Societies which recognized, in fact, the principle of fundamental, equal human rights were the predominant organization for tens of thousands of years before so-called "civilization".
Fundamental, equal and universally applied rights, or in-group/out-group rights, is that? That is to ask, not for the first time - and of course, you're talking about your wholly mythologised hunter-gatherers - did those fundamental and equal rights apply between or only within distinct social groups?
And, again again, is there something particular about 'civilised' (settled) groups of humans - almost always stratified, almost always granting unequal rights (either formally or substantively) - that suggests that man's 'nature' may contain more than you seem to think? What is it about the settled life that introduces formal and substantive inequality, including in terms of rights? In what sense does the settled life go against man's very nature in almost every single instance?
Originally posted by no1marauder Your argument is that because Hamiliton correctly predicted that people like Scalia and yourself would erroneously suppose that inclusion of certain enumerated rights precluded the existence of others makes him "wrong"? Strange.
And Hamilton didn't even know that Madison would be smart enough to add the Ninth Amendment which is textual supp ilosophy while insisting that the the intent of the Framers is controlling! Inconceivable.
So did the framers assume that there were certain unenumerated "mysterious rights" that belonged "to the people" until some future time when they might be invoked at the whim of future Supreme Courts?
Suppose a future court was to decide that everyone had the right to paint swastikas on any house of worship they wished - and declared that any law preventing people from doing so was unconstitutional? The Constitution doesn't specifically state that people have this "right" - but the 9th Amendment states that just because the Constitution doesn't mention this "right" doesn't mean that it doesn't exist.
Should a majority on the Supreme Court be able to make up any law they want and declare it to be one of those ghostly unwritten rights referred to in the 9th Amendment? Surely that would lead to a concentration of power that would have horrified the Founders. Its the reason why we have so many arguments about whether judges are becoming too "activitist".
30 Jun '10 14:35
SCOTUS extends Heller to the states
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