[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

"Analysis: The Final State of the Presidential Race"

He’ll, You Pieces of Garbage

The Future of Warfare -- No more martyrdom!

"Kamala’s Inane Talking Points"

"The Harris Campaign Is Testament to the Toxicity of Woke Politics"

Easy Drywall Patch

Israel Preparing NEW Iran Strike? Iran Vows “Unimaginable” Response | Watchman Newscast

In Logansport, Indiana, Kids are Being Pushed Out of Schools After Migrants Swelled County’s Population by 30%: "Everybody else is falling behind"

Exclusive — Bernie Moreno: We Spend $110,000 Per Illegal Migrant Per Year, More than Twice What ‘the Average American Makes’

Florida County: 41 of 45 People Arrested for Looting after Hurricanes Helene and Milton are Noncitizens

Presidential race: Is a Split Ticket the only Answer?

hurricanes and heat waves are Worse

'Backbone of Iran's missile industry' destroyed by IAF strikes on Islamic Republic

Joe Rogan Experience #2219 - Donald Trump

IDF raids Hezbollah Radwan Forces underground bases, discovers massive cache of weapons

Gallant: ‘After we strike in Iran,’ the world will understand all of our training

The Atlantic Hit Piece On Trump Is A Psy-Op To Justify Post-Election Violence If Harris Loses

Six Al Jazeera journalists are Hamas, PIJ terrorists

Judge Aileen Cannon, who tossed Trump's classified docs case, on list of proposed candidates for attorney general

Iran's Assassination Program in Europe: Europe Goes Back to Sleep

Susan Olsen says Brady Bunch revival was cancelled because she’s MAGA.

Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report

Israel kills head of Hezbollah Intelligence.

Tenn. AG reveals ICE released thousands of ‘murderers and rapists’ from detention centers into US streets

Kamala Harris Touts Mass Amnesty Offering Fast-Tracked Citizenship to Nearly Every Illegal Alien in U.S.

Migration Crisis Fueled Rise in Tuberculosis Cases Study Finds

"They’re Going to Try to Kill Trump Again"

"Dems' Attempts at Power Grab Losing Their Grip"

"Restoring a ‘Great Moderation’ in Fiscal Policy"

"As attacks intensify, Trump becomes more popular"

Posting Articles Now Working Here

Another Test

Testing

Kamala Harris, reparations, and guaranteed income

Did Mudboy Slim finally kill this place?

"Why Young Americans Are Not Taught about Evil"

"New Rules For Radicals — How To Reinvent Kamala Harris"

"Harris’ problem: She’s a complete phony"

Hurricane Beryl strikes Bay City (TX)

Who Is ‘Destroying Democracy In Darkness?’

‘Kamalanomics’ is just ‘Bidenomics’ but dumber

Even The Washington Post Says Kamala's 'Price Control' Plan is 'Communist'

Arthur Ray Hines, "Sneakypete", has passed away.

No righT ... for me To hear --- whaT you say !

"Walz’s Fellow Guardsmen Set the Record Straight on Veep Candidate’s Military Career: ‘He Bailed Out’ "

"Kamala Harris Selects Progressive Minnesota Governor Tim Walz as Running Mate"

"The Teleprompter Campaign"

Good Riddance to Ismail Haniyeh

"Pagans in Paris"

"Liberal groupthink makes American life creepy and could cost Democrats the election".


Status: Not Logged In; Sign In

U.S. Constitution
See other U.S. Constitution Articles

Title: Protecting natural rights by policing the police power
Source: [None]
URL Source: [None]
Published: Feb 9, 2015
Author: Randy Barnett
Post Date: 2015-02-09 17:37:15 by tpaine
Keywords: None
Views: 5534
Comments: 27

Protecting natural rights by policing the police power

On the Law & Liberty Blog, Richard Reinsch has a reply to my earlier post Another defender of “judicial restraint” attacks a straw man. In my post I tried to explain how the natural rights background of the Constitution — as expressly recognized in the Ninth and Fourteenth Amendments — does not require judges to identify particular rights and elevate them to some high standard of scrutiny.

Instead, judges need only identify in a general way the appropriate purposes of government and then examine particular laws to see if they are reasonable means of pursuing these purposes. In his reply, Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett, Reinsch closes with this:

We are told that a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government. I won’t believe this until they tell me what rights they see.

There is a lot in between, but most of it is nonresponsive to my original post, which I think bears repeating: The Constitution’s affirmation of the preexistent natural “rights . . . retained by the people” as well as the “powers . . . reserved . . . to the people” are textual authority for the proposition that “first come rights, and then comes government,” and as the Declaration tells us, it is “to secure these rights that governments are instituted among men deriving their just powers from the consent of the governed.” So a government that violates these rights is not exercising its “just powers.”

The question then arises, how best to secure these rights? Along with most everyone at the Founding, and everyone at the time of the Fourteenth Amendment, I think judges have a role to play here. But what is that role?

Under the modern Carolene Products + Lee Optical + Griswold approach — what I call Footnote Four Plus — judges are supposed to turn a blind eye towards any abuses of legislative power, for example to enrich some businesses at the expense of their competitors — while reserving judicial protection to special fundamental rights (under “substantive due process”) and to suspect classes of people (under “equal protection”). Such fundamental rights are (in theory at least) to receive “strict scrutiny,” a standard that is very hard to meet. So, once a right has been identified, a law is likely to fall. But in the absence of such a right, a law is guaranteed to survive.

Therefore, under this regime it is hugely important (a) which rights are recognized and (b) that very few rights be recognized lest all governance be brought to its knees. But this is not the only way to protect the rights retained by the people. Nor was it the way that rights were protected before 1955 when Williamson v. Lee Optical adopted hypothetical “rational basis” scrutiny that all laws can survive.

Instead, courts asked whether a restriction on liberty — any liberty — was unreasonable, arbitrary or discriminatory. The vast preponderance of such restrictions easily met this standard. Even in Lochner itself an extensive list of health and safety regulations of bake shops went unchallenged and was blessed by the Supreme Court in its opinion. Under this approach, all government had to do was show how the measure was a reasonable means of accomplishing one of its legitimate ends. So the analytic action was not on identifying the right, but on identifying the proper ends of government. With respect the federal government, the Constitution contains a list of such ends or “objects” in Article I, Section 8. States have a general police power, but this power is not unlimited. It is limited to protecting the rights of the people.

There are two ways laws do this. The first is by prohibiting wrongful conduct that violates the rights of others. Murder, rape, robbery, theft, etc. are universally recognized wrongs of this type. These actions are said to be exercises of license, not liberty. The second is to regulate the rightful exercise of liberty to protect others from the risk that their rights might be violated. So, for example, one adopts a building code that requires balcony railings to be a particular height to prevent someone from falling, rather than wait for them to fall and then sue the building owner for negligence after the fact.

Here is the key: if the exercise of any right may be reasonably regulated to protect the rights of others, then the importance of identifying the exact contours of our rights is greatly diminished. If an act violates the rights of others, then it can be prohibited. But if not, it can still be regulated provided that regulation is reasonable. What matters is the purpose or end of the regulation and whether it is a reasonable means to that end — or whether instead it is actually a pretextual exercise of power for other purposes than protecting the rights of others — like enriching others or preventing competition.

Remember we are speaking only of justifying police power restrictions on liberty to benefit some at the expense of others. We are not talking about spending tax money for the general welfare. That power must be constrained by other principles. That taxes may at some point be liberty restricting is a problem for a free society, but the tax power is distinct from the power of government to regulate or prohibit conduct.

Health and safety regulations are the easiest examples of legitimate ends of the police powers. Or as John Marshall said in Gibbons v. Ogden: “Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State….”

When one adds the “general welfare” to this list of unenumerated state powers then one starts having the same issues of indeterminacy that Reinsch has with unenumerated rights. But as long as a regulation is a good faith effort to protect the health and safety of the public, it is constitutional. Laws that have only a tenuous relationship with health and safety are likely to be pretextual exercises of powers for other purposes and are bad faith assertions of the police power.

About this, there is widespread agreement. Agreement persists if one adds “public morals” to the list of appropriate police power ends. For example, prohibiting fornicating or even nudity in the park or on the sidewalks, where the public has a right to be, is an appropriate and generally uncontroversial means of protecting the right of the general public — including both adults and children — to use public spaces.

Where agreement breaks down is when the category of “morals” legislation is broadened to include private morals, or conduct that takes place in private and does not intrude into the public domain. This is where there is controversy. But we have now narrowed down the controversy to a small subset of the police powers of state governments: is the regulation of private morality within or outside the legitimate police power of states — and how are we to decide this question?

But notice that in all this, it is not necessary to identify and carefully define our “rights” other than to distinguish rightful from wrongful acts like murder, theft, and the like. Most regulations do not purport to be about wrongful conduct, but are about regulating rightful conduct. And if rightful conduct may properly be reasonably regulated, then what we need to pay attention to is whether such regulations are reasonable or whether they are instead unreasonable, arbitrary or discriminatory means of accomplishing ends that are not justly entrusted to government. Like benefiting ophthalmologists and optometrists at the expense of opticians.

Judges can tell the difference, and are called upon to do so routinely when enforcing the Equal Protection Clause and the Privilege and Immunities Clause of Article IV. And they can do it without speculating about the natural rights of man.

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

#1. To: All (#0)

---- Here is the key: if the exercise of any right may be reasonably regulated to protect the rights of others, then the importance of identifying the exact contours of our rights is greatly diminished.

If an act violates the rights of others, then it can be prohibited. But if not, it can still be regulated provided that regulation is reasonable.

What matters is the purpose or end of the regulation and whether it is a reasonable means to that end — or whether instead it is actually a pretextual exercise of power for other purposes than protecting the rights of others — like enriching others or preventing competition.

---- "If an act violates the rights of others, then it can be prohibited" ----

How does owning a pound of pot, or a fully automatic machine gun, -- violate the rights of others?

And how can 'reasonable regulations' -- that in effect make them nearly impossible to grow or make, be rational? - They're "actually a pretextual exercise of power for other purposes"...

tpaine  posted on  2015-02-09   17:56:11 ET  Reply   Trace   Private Reply  


#2. To: tpaine (#1) (Edited)

How does owning a pound of pot, or a fully automatic machine gun, -- violate the rights of others

Not that I agree with gun laws or restrictions, but it has to be considered fact, that since fully automatic firearms are so regulated and restricted, a microscopic amount of crimes or deaths are associated with fully auto weapons.

Don't get me wrong, I have no problem with hundreds of people dying by gunfire, or even fully auto gunfire, as opposed to limited freedoms and Liberty... because I agree wholeheartedly that... "Any society that would give up a little liberty to gain a little security will deserve neither and lose both".

But your question is problematic... because pot and fully automatic weapons do have the ability to victimize others, as a contributing factors, at times, depending how they are used.

Your real question should be... why doesn't the majority thinking citizen understand Mr. Franklins ideology...and finally agree that the loss of freedoms and liberties outweigh the hardships that are caused with pot or guns.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   18:49:46 ET  Reply   Trace   Private Reply  


#3. To: GrandIsland, gatlin, misterwhite, Y'ALL (#2)

How does owning a pound of pot, or a fully automatic machine gun, -- violate the rights of others?

Not that I agree with gun laws or restrictions, but it has to be considered fact, that since fully automatic firearms are so regulated and restricted, a microscopic amount of crimes or deaths are associated with fully auto weapons.

Yep, because they are in effect prohibited, rational people acquiesce to these unconstitutional regulations..

Don't get me wrong, I have no problem with hundreds of people dying by gunfire, or even fully auto gunfire, as opposed to limited freedoms and Liberty... because I agree wholeheartedly that... "Any society that would give up a little liberty to gain a little security will deserve neither and lose both". --- But your question is problematic... because pot and fully automatic weapons do have the ability to victimize others, as a contributing factors, at times, depending how they are used.

How silly that you believe the drug or the gun is the factor that gives anyone the capability to become a criminal and victimize anyone else.

Your real question should be... why doesn't the majority thinking citizen understand Mr. Franklins ideology...and finally agree that the loss of freedoms and liberties outweigh the hardships that are caused with pot or guns.

Quite true.. Why then do you agree with gatlin and misterwhite that such restrictive regulations are constitutional?

tpaine  posted on  2015-02-09   20:01:23 ET  Reply   Trace   Private Reply  


#4. To: tpaine (#3)

1) How silly that you believe the drug or the gun is the factor that gives anyone the capability to become a criminal and victimize anyone else.

2) Why then do you agree with gatlin and misterwhite that such restrictive regulations are constitutional?

1) In general, I'll agree... but the point I made with automatic weapons is proof that a restriction or ban can be a factor. Almost no one is killed yearly, by fully automatic gunfire, outside of military operations. Unfortunately, its stats like that that give the libtards hope... and a small argument.

2) I don't agree that gun restrictions or laws are constitutional (outside of a minimum age requirement and a complete ban on any convicted felon). Until the libtards amend the 2nd, there should be no infringements. I however do not feel drugs or plants are constitutionally protected against infringements... since our forefathers didn't soecifically protect drugs or plants.

I agree with the USSC, it's perfectly constitutional for states to ban, restrict or infringe upon drugs and plants inside their state borders. My opinions have nothing to do with Gatin or any other poster that posts here.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   20:21:13 ET  Reply   Trace   Private Reply  


#5. To: GrandIsland, tpaine (#4)

I agree with the USSC, it's perfectly constitutional for states to ban, restrict or infringe upon drugs and plants inside their state borders.

Strange, but you also prance & dance & prostrate yourself to Washington DC about the whimsical decisions of the USSC concerning homosexuality and abortion crammed down every American's throats. You have a very strange perspective, indeed!

My opinions have nothing to do with Gatin or any other poster that posts here.

Well, you seem to agree with the USSC cramming federal decisions upon states concerning homosexulality. So, you must take responsibility for your fine fiendish, friends.

Pridie.Nones  posted on  2015-02-09   20:40:31 ET  Reply   Trace   Private Reply  


#6. To: Pridie.Nones (#5)

Well, you seem to agree with the USSC

We can't have an anything goes society... where Pridie.Nones, himself, decides as a last resort failsafe what should be allowed amongst the millions of citizens.

I for one wouldn't lose a wink of sleep if Mother Nature should inflict a deadly plague upon all that doesn't ensure species survival... but outside Mother Nature's wrath towards the unnatural, I must consider all persons rights being equal.

As for abortion, I feel the states should be allowed to outlaw it... but in today's libturd society, that won't be a popular idea.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   21:11:50 ET  Reply   Trace   Private Reply  


#7. To: GrandIsland (#4)

Why then do you agree with gatlin and misterwhite that such restrictive regulations are constitutional?

. My opinions have nothing to do with Gatin or any other poster that posts here.

I'll try to remember that the next time you pat them on the back for some anti- constitutional comment.

I don't agree that gun restrictions or laws are constitutional (outside of a minimum age requirement and a complete ban on any convicted felon). Until the libtards amend the 2nd, there should be no infringements. I however do not feel drugs or plants are constitutionally protected against infringements... since our forefathers didn't soecifically protect drugs or plants.

They specifically included the 9th, which protects all un-enumerated rights from local, state or Fed infringements.

I agree with the USSC, it's perfectly constitutional for states to ban, restrict or infringe upon drugs and plants inside their state borders.

You're mistaken. The 14th reiterated that the BOR's applies to state and local govts.. The SCOTUS is gradually starting to agree.

tpaine  posted on  2015-02-09   21:12:41 ET  Reply   Trace   Private Reply  


#8. To: tpaine (#7) (Edited)

I'll try to remember that the next time you pat them on the back for some anti- constitutional

That's one defect with a forum like this. It has always been us vs them. Kinda like what you'd suggest is a problem with LE.

The long term regulars, US, vs anyone that should challenge, THEM.

You lump me into the whole group of thems. I was a cop... I know how easy it is to do.

I don't always agree with Gatlin. For one, I wouldn't care one way or the other if pot is legal. Gatlin seems to favor it illegal. Gatlin is probably more religious than I could ever be.

Group me with the GrandIslands. You'll find I'll agree at times with both the Us's and the them's.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   21:19:19 ET  Reply   Trace   Private Reply  


#9. To: GrandIsland (#6)

We can't have an anything goes society... where Pridie.Nones, himself, decides as a last resort failsafe what should be allowed amongst the millions of citizens.

You have made an assumption which is entirely false. Allow me to pose a few questions: How about I am responsible for myself, family members, friends and business associates without regard to all these millions you describe? And what if they (in turn) are responsible for their selves, family members friends and business associates?

Essentially, I have placed responsibility on the individual within the local community that perpetuates throughout society. Your assumption suggest some centrist control over and about my responsibilites. I do not need or require your oversight because you believe in some political dogma based on central authority.

I for one wouldn't lose a wink of sleep if Mother Nature should inflict a deadly plague upon all that doesn't ensure species survival... but outside Mother Nature's wrath towards the unnatural, I must consider all persons rights being equal.

I have no idea what you mean to state, especially when you have contadicted yourself within your own post.

As for abortion, I feel the states should be allowed to outlaw it... but in today's libturd society, that won't be a popular idea.
When you wake up each morning, do you go for a coffee & donut, just for ol' tymes sake?

Pridie.Nones  posted on  2015-02-09   21:59:26 ET  Reply   Trace   Private Reply  


#10. To: GrandIsland (#8)

There is a lot of bad blood between you and most of the people from LP, a LOT of heated exchanges and name calling was done on both sides.

I appreciate you seem to understand that some are unwilling to let go of their anger, but of all the people from your faction, you are actually the only one starting to sound rational, and not like some unhinged lunatic.

Dead Culture Watch  posted on  2015-02-09   22:25:22 ET  Reply   Trace   Private Reply  


#11. To: Dead Culture Watch (#10) (Edited)

I was never "unhinged". I completed a successful 20 year career in LE. I was a field trainer, police topics instructor, firearms instructor, shift supervisor, sergeant, investigator and evidence tech. I never had a scar in my file... never was sued.

I promised Stone I'd behave. It puts me at a slight disadvantage, since there are a few that would attack a person that refuses to fire back. Like the poster in post 9.

I'll state my position... and ignore the WWE mentality.

Thanks for your post and comments.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   22:48:43 ET  Reply   Trace   Private Reply  


#12. To: Pridie.Nones (#9)

And what if they (in turn) are responsible for their selves, family members friends and business associates?

Sounds like a Disney fantasy...

lol

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   22:54:11 ET  Reply   Trace   Private Reply  


#13. To: GrandIsland (#12)

Pridie.Nones: And what if they (in turn) are responsible for their selves, family members friends and business associates?

GrandIsland: Sounds like a Disney fantasy... lol

Nothing like the founder's architecture about the US government, is there? Now, based on your own opinion, the US government is relegated to a fantasy... with over 250 years of failure based on your own observation. No wonder, America thinks the US Constitution is nothing more than some toilet paper.

Pridie.Nones  posted on  2015-02-09   23:23:36 ET  Reply   Trace   Private Reply  


#14. To: Pridie.Nones (#13)

Nothing like the founder's architecture about the US government, is there? Now, based on your own opinion, the US government is relegated to a fantasy... with over 250 years of failure based on your own observation. No wonder, America thinks the US Constitution is nothing more than some toilet paper.

The fantasy is that our founders also thought woman were second class citizens... blacks and Indians were third class citizens... "But all men are created equal"

Those founders were never wrong... Everything they did was perfect, thinking otherwise is traitorous... and you've built yourself into an undebatable, fantasy world.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-09   23:37:36 ET  Reply   Trace   Private Reply  


#15. To: GrandIsland (#14)

Do a favor for me and your credibility: get rid of any tag lines. It serves no purpose.

Othewise I want to respond to your posts but find difficulty because of your stated words. Just remove automatic banners for discussions. Your compliance to my request shall alter perceptions about you.

Pridie.Nones  posted on  2015-02-10   0:02:59 ET  Reply   Trace   Private Reply  


#16. To: Pridie.Nones (#15)

Othewise I want to respond to your posts but find difficulty because of your stated words.

if you lack tolerance, than I doubt You'll ever be successful in communicating, on a civil level.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-10   0:17:26 ET  Reply   Trace   Private Reply  


#17. To: GrandIsland (#14) (Edited)

Pridie.Nones (#13) --- Nothing like the founder's architecture about the US government, is there? Now, based on your own opinion, the US government is relegated to a fantasy... with over 250 years of failure based on your own observation.

GrandIsland --- The fantasy is that our founders also thought woman were second class citizens... blacks and Indians were third class citizens... "But all men are created equal" ---- Those founders were never wrong... Everything they did was perfect, thinking otherwise is traitorous... and you've built yourself into an undebatable, fantasy world.

Women have the vote, but many erroneously still think they, blacks and Indians are not first class citizens. -- However. ---

--- The constitution says otherwise, and your oath to honor and defend its principles (one is that "all men are created equal"), still applies. -- Is that correct?

And of course the founders were fallible men and its not traitorous to say so, but it is very debatable to use their faults as an excuse to deny the supremacy of our Constitution, and to claim that States or localities can ignore some of our individual rights. - -- Are you trying to say that?

Previously you wrote, and I replied:---

I agree with the USSC, it's perfectly constitutional for states to ban, restrict or infringe upon drugs and plants inside their state borders.

You're mistaken. The 14th reiterated that the BOR's applies to state and local govts.. The SCOTUS is gradually starting to agree.

tpaine  posted on  2015-02-10   10:46:05 ET  Reply   Trace   Private Reply  


#18. To: Pridie.Nones (#15)

Do a favor for me and your credibility: get rid of any tag lines. It serves no purpose.

Go to 'setup' and you will see a box about 'tag lines'..

Remove your check, -- shazzam, no more tags!

tpaine  posted on  2015-02-10   10:53:11 ET  Reply   Trace   Private Reply  


#19. To: tpaine (#17)

but it is very debatable to use their faults as an excuse to deny the supremacy of our Constitution,

It's also debatable to use the founders wisdom and importance, as an excuse to not evolve with changing times, while trying to preserve the spirit of the amendment. It's called case law.

The problem with case law is, it's decided by case... and in the highest courts. Not on an Internet forum.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-10   11:02:16 ET  Reply   Trace   Private Reply  


#20. To: tpaine (#18)

He was trying to get me to remove my tag line... because he can't tolerate it. Found it hard to debate, while looking at it.

Kinda like how all the homos couldn't breathe or live another day without committing suicide, because of the Duck Dynasty comments.

That's the way I took it. I could be mistaken.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-10   11:10:40 ET  Reply   Trace   Private Reply  


#21. To: GrandIsland (#19)

And of course the founders were fallible men and its not traitorous to say so, but it is very debatable to use their faults as an excuse to deny the supremacy of our Constitution, and to claim that States or localities can ignore some of our individual rights. - -- Are you trying to say that?

It's also debatable to use the founders wisdom and importance, as an excuse to not evolve with changing times, while trying to preserve the spirit of the amendment. It's called case law.

I'd guess you are trying to say that, from your response above..

The problem with case law is, it's decided by case... and in the highest courts. Not on an Internet forum.

Case law only applies to the case. -- It does NOT apply to or change the Constitution.. --- Can you agree?

--- Or do you want to continue the discussion on this forum?

tpaine  posted on  2015-02-10   11:13:31 ET  Reply   Trace   Private Reply  


#22. To: tpaine (#21)

law only applies to the case. -- It does NOT apply to or change the Constitution.. --- Can you agree?

I'll agree as long as you don't feel that every amendment is an absolute.

Like the first amendment. Our founders never said all speech is protected, including threats.

I don't feel a new amendment needs to be written... as long as you agree case law does pertain to amendments, that were loosely written to avoid adding future amendments.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-10   11:22:39 ET  Reply   Trace   Private Reply  


#23. To: tpaine (#21)

Or do you want to continue the discussion on this forum?

I'll continue on this forum, if you agree that whether you feel you win, lose or tie with me in this debate, you aren't the sole decider of what grey area is constitutional

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-10   11:24:27 ET  Reply   Trace   Private Reply  


#24. To: GrandIsland (#22)

The problem with case law is, it's decided by case... and in the highest courts. Not on an Internet forum.

Case law only applies to the case. -- It does NOT apply to or change the Constitution.. --- Can you agree?

I'll agree as long as you don't feel that every amendment is an absolute. --- Like the first amendment. Our founders never said all speech is protected, including threats.

Specious argument, as ALL speech is protected. You are free to say anything, and suffer the consequences if it threatens anyone else.

I don't feel a new amendment needs to be written... as long as you agree case law does pertain to amendments,

Case law applies only to the case at hand, and does not "pertain" or change the constitution or its amendments in any way.

(amendments) were loosely written to avoid adding future amendments.

"Congress shall make no law", is loosely written?

"No State shall make or enforce any law", is loosely written?

I don't buy that proposition, sorry...

tpaine  posted on  2015-02-10   11:57:41 ET  Reply   Trace   Private Reply  


#25. To: GrandIsland (#23)

I'll continue on this forum, if you agree that whether you feel you win, lose or tie with me in this debate, you aren't the sole decider of what grey area is constitutional.

Have I ever said I'll be the sole decider of what grey area is constitutional?

But sure, I'll agree..

I don't agree that their are a LOT of grey areas, however..

tpaine  posted on  2015-02-10   12:04:38 ET  Reply   Trace   Private Reply  


#26. To: tpaine (#25)

I don't agree that their are a LOT of grey areas, however..

Neither do I.

Every society gets the kind of criminal it deserves. What is equally true is that every community gets the kind of law enforcement it insists on. Robert Kennedy

GrandIsland  posted on  2015-02-10   12:35:51 ET  Reply   Trace   Private Reply  


#27. To: GrandIsland (#26)

Do you concede then, that the other points I made at #24 are valid?

tpaine  posted on  2015-02-10   13:16:35 ET  Reply   Trace   Private Reply  


TopPage UpFull ThreadPage DownBottom/Latest

[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Please report web page problems, questions and comments to webmaster@libertysflame.com