Originally posted by SleepyguyI'm not following. What does stare decicis have to do with this issue?
No. Screw that.
How stare decisis Subverts the Law...
http://www.constitution.org/col/0610staredrift.htm
Edit: I know I'm out of my depth here among you Esquires, but that kind of thinking has moved us too far away from the Constitution.
Originally posted by sh76I find it ironic that judges have essentially rendered two Constitutional provisions null and void - the 9th Amendment and Privileges and Immunities Clause of the 14th Amendment - apparently to reign in "judicial activism".🙄
No...
Madison replaced by generations of binding Supreme Court case law, as quoted on Wikipedia.
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Originally posted by no1marauderMadison replaced by Wikipedia = bad. Madison replaced by ... case law = good.
I find it ironic that judges have essentially rendered two Constitutional provisions null and void - the 9th Amendment and Privileges and Immunities Clause of the 14th Amendment - apparently to reign in "judicial activism".🙄
It's the Madison replaced part that sucks.
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Originally posted by no1marauderOne would complain about Stare decisis not being followed when a decision one likes is overturned. The litany of decisions that support my position have never been overturned. If they are, I will not whine about stare decicis. Until they are overturned, they are the law as it stands now. Stare decicis has nothing to do with it.
Huh? You appeal to dubious precedents and then ask what stare decisis has to do with this issue? Are you serious?
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Originally posted by SleepyguyI saw the link. I just don't think it has any relevance here.
I gave you a link. I can't explain it any better.
I'm not a big fan of stare decicis either. If the majority of the Court thinks that a case has been wrongly decided, then great, overturn it. I have no problem with that at all.
Better stare decicis though, than trawling through the minds of people dead for 200 years to determine federal constitutional law as it is enforced against the states today.
Originally posted by sh76Nice straw man. I didn't say he was the sole arbiter and you know it.
Since when did James Madison, dead for almost 200 years, becomes the sole arbiter of Constitutional law in the United States?
My beef is that you don't seem to care at all what the original intent behind the words of our Constitution was. You are happy to supplant it with a bunch of convoluted case law, much of which was decided by mere politics, that moves incessantly away from any semblance of Constitutionality. As a result of that type of thinking, much of what you claim is now "the law of the land" is blatantly unconstitutional. But congrats on having Sonia Sotomayor and Elena Kagan to back you up. I suppose that makes you the winner.
Originally posted by sh76What kind of analysis when determining the meaning of a provision in a document totally ignores the author's stated understanding of it?
Since when did James Madison, dead for almost 200 years, becomes the sole arbiter of Constitutional law in the United States?
That is what you are proposing as regards the Ninth Amendment.
Originally posted by SleepyguyAn No1 has pointed out so many times on this thread, the main SCOTUS justice in my corner is Antonin Scalia. That Kagan and Sotomayor take my position is the surprise, if anything.
Nice straw man. I didn't say he was the sole arbiter and you know it.
My beef is that you don't seem to care at all what the original intent behind the words of our Constitution was. You are happy to supplant it with a bunch of convoluted case law, much of which was decided by mere politics, that moves incessantly away from any semblance of Constituti ...[text shortened]... having Sonia Sotomayor and Elena Kagan to back you up. I suppose that makes you the winner.
In any case, it matters what the intent of the drafter is when something is ambiguous. This is not a question of ambiguity. This is a question of federalism. I respect the divide between the states and the federal government. I do not think that the states should be forced by the federal government (courts or otherwise) to adjust and conform their policies unless by virtue of their violation of a Constitutional provision.
I do not think that the federal courts have the authority to enforce "natural rights" that are not referenced or implied in the Constitution on unwilling state authorities. That is my position and that is Scalia's, Sotomayor's and Kagan's. If Madison disagreed (and I'm not convinced that he did on this nuance), then so be it. If so, he should have drafted the Constitution more specifically to address this issue.
I am not keen on stripping states of rights by virtue of non-binding musings of the Framers.
As for "convoluted case law," first of all, most SCOTUS case law is quite convoluted, especially to the layman. In any case, even if you believe in natural rights being binding on the states, I find it difficult to call the case law "unconstitutional." If anything, it's violative of natural rights, not the Constitution. If you'll notice, No1's original point was that the Constitution is irrelevant when it comes to natural rights (with which I disagree, but that's another issue).
Originally posted by sh76You are right about a lack of ambiguity; the Framers made their position as regards "inalienable rights" clear in our actual founding document, the Declaration of Independence. You may want to re-read it. The overarching purpose of any government is the protection of natural fundamental rights. This is an express embrace of Locke. The idea that these same men when it came around to constituting a government would have valued the "right" of a State to violate fundamental rights more than than the people possessing them is ridiculous.
An No1 has pointed out so many times on this thread, the main SCOTUS justice in my corner is Antonin Scalia. That Kagan and Sotomayor take my position is the surprise, if anything.
In any case, it matters what the intent of the drafter is when something is ambiguous. This is not a question of ambiguity. This is a question of federalism. I respect the divide ...[text shortened]... when it comes to natural rights (with which I disagree, but that's another issue).
sh76: I do not think that the states should be forced by the federal government (courts or otherwise) to adjust and conform their policies unless by virtue of their violation of a Constitutional provision.
One would think that the 14th Amendment's express wording would make even the most ignorant of our history pause before expressing such a thought. You continue to duck the Privileges and Immunities Clause issue for a seemingly obvious reason; it destroys your claim that Federal Courts are powerless to protect the people in the States (which is virtually everybody) from violations of their fundamental rights. This remains so no matter if 5 Supreme Court justices using convoluted reasoning which clearly went against the Amendment's authors intent nullified the provision in the Slaughter House cases .
Madison obviously disagreed and there is nothing particularly ambiguous about the Ninth Amendment. Moreover, he specifically warned against the PRECISE ARGUMENT you are making when he submitted the amendment to Congress! Even if we accept that prior to the 14th Amendment Federal Courts could not protect the fundamental rights of the citizenry from State encroachments (which I maintain is dubious), the 14th Amendment was specifically designed to end any debate on this issue. 140 years of bad decisions based on an original error do not make an impressive defense.
sh76: I am not keen on stripping states of rights by virtue of non-binding musings of the Framers.
I can only roll my eyes at such ignorance of the founding principles of our nation. Only individuals have rights; States have powers but they do not have any legitimate power to violate the fundamental rights of the people. And these "musings" that you trivialize are the founding principles of this country. That you find them "non-binding" because they are inconvenient to would be tyrants in State government is appalling to anyone who has any respect for the nation the Framers built.
The Constitution created no rights, so yes it is largely irrelevant to what rights we possess. That's what the Ninth Amendment means and what the Framers believed. That you, Scalia and some hack judges don't understand the founding principles of this country is your and their problem though their disrespect for our inalienable natural rights does make it our problem as well.
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I'm still trying to figure out what rights the 9th Amendment was specifically referring to.
Would those rights have included things like a "person's right to own slaves"? or a "person's right to appear nude in public"?
What is it that differentiates between an "artificial right" and a "natural right"? -- being that not everyone agrees on even the obvious things like "freedom of religion"
Originally posted by no1marauderYou can roll your eyes at me, but you're really rolling your eyes at a century and a half of case law, which you dismiss as convoluted, lawless and, as this thread continues, the probability approaches one that the Supreme Court will earn some sort of Nazi comparison, if recent history is any indicator at all.
You are right about a lack of ambiguity; the Framers made their position as regards "inalienable rights" clear in our actual founding document, the Declaration of Independence. You may want to re-read it. The overarching purpose of any government is the protection of natural fundamental rights. This is an express embrace of Locke. The idea that th ...[text shortened]... heir disrespect for our inalienable natural rights does make it our problem as well.
So, in sum, I'll take the century and a half of case law, the near unanimous opinion of the current justices and you can have the extra-constitutional writings of people that have been dead for 200 years and your personal interpretation of a couple of constitutional provisions that are vague to the point meaninglessness in a vacuum.
I sincerely doubt that James Madison would have wanted his extra-constitutional writings in 17-whatever to be construed as binding authority for the Constitutional mandates on the United States and all political subdivisions thereof in 2010.
Originally posted by sh76You "sincerely doubt" that Madison would have wanted his speech submitting the Ninth Amendment to Congress to be even considered when interpreting its meaning? Then I sincerely doubt your sanity.
You can roll your eyes at me, but you're really rolling your eyes at a century and a half of case law, which you dismiss as convoluted, lawless and, as this thread continues, the probability approaches one that the Supreme Court will earn some sort of Nazi comparison, if recent history is any indicator at all.
So, in sum, I'll take the century and a half of ...[text shortened]... e Constitutional mandates on the United States and all political subdivisions thereof in 2010.