PILOT SPIN
Spin Zone => Spin Zone => Topic started by: bflynn on April 25, 2016, 08:54:09 AM
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I've had some long drives recently and while driving I tend to think about things. This is a recent one.
The 14th Amendment was passed just after the Civil War. It was adopted to help with the integration of former slaves and to punish Southerners after the fact. In general is a good Amendment. But there is one clause in there that says "nor deny to any person within its jurisdiction the equal protection of the laws" that could be problematic.
So it occurs to me...what happens if equal protection conflicts with the Bill of Rights? Then we arrive at a point where we no longer have guarantees of freedoms because any law can used to usurp the Constitutionally protected amendments by virtue of elevating it to the Constitutional level via the 14th Amendment. Literally any law that you can imagine, from parking tickets to murder, can become a Constitutional issue IF it can be shown to be enforced in an unequal way.
That seems dangerous to me. It means that a city council can make a law AND that that law can then gain the power of the Constitution by attaching to the 14th Amendment and by doing so override the Bill of Rights. The secret recipe...and maybe Republicans need to start using this...is to word the law in such a way that the equal protection clause clearly applies.
For example, a city council might rule that in the City of Raleigh, babies are known to be alive at conception and are therefore entitled to equal protection under the 14th Amendment, prohibiting all abortions. That's a quick off the cuff example, but is it so far fetched? The only attack on it would be that the Raleigh City Council is unqualified to make such a law. But what if the NC legislature did it? Can a federal judge rule that the NC legislature is prohibited from making a law declaring babies alive at conception? That isn't covered in the Constitution anywhere and would therefore be a power reserved for the States. The 10th Amendment would cede the power to the State legislature and the 14th would give equal protection under the law to the baby.
Yup, that seems really dangerous to me. Dangerous to who is determined by who is in power.
That is no basis for a Republic. Yes, the 14th Amendment is ripe for abuse...and it has been abused.
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The threat is not the 14th amendment itself, the threat to our rights is from the misapplication of the 14th amendment.
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You might want to lookup "Disparate Impact".
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The modern judge has no real interest in, or training on the Constitution beyond what I think of as Constitutional Law 101. The modern law school is far more a plantation than a challenging place of learning, just like most of the other colleges and universities around the country.
Equal Protection should be simply to understand and impose, but courts have found it far more fun to invent rights where none exist and to use those inventions to deny rightful liberty to others with impunity.
Madison versus Marbury (sp) did far more than resolve a nagging judicial issue of the day. It created a kingdom within the federal court that is being abused to destroy everything that holds the country together.
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I've had some long drives recently and while driving I tend to think about things. This is a recent one.
The 14th Amendment was passed just after the Civil War. It was adopted to help with the integration of former slaves and to punish Southerners after the fact. In general is a good Amendment. But there is one clause in there that says "nor deny to any person within its jurisdiction the equal protection of the laws" that could be problematic.
So it occurs to me...what happens if equal protection conflicts with the Bill of Rights? Then we arrive at a point where we no longer have guarantees of freedoms because any law can used to usurp the Constitutionally protected amendments by virtue of elevating it to the Constitutional level via the 14th Amendment. Literally any law that you can imagine, from parking tickets to murder, can become a Constitutional issue IF it can be shown to be enforced in an unequal way.
That seems dangerous to me. It means that a city council can make a law AND that that law can then gain the power of the Constitution by attaching to the 14th Amendment and by doing so override the Bill of Rights. The secret recipe...and maybe Republicans need to start using this...is to word the law in such a way that the equal protection clause clearly applies.
For example, a city council might rule that in the City of Raleigh, babies are known to be alive at conception and are therefore entitled to equal protection under the 14th Amendment, prohibiting all abortions. That's a quick off the cuff example, but is it so far fetched? The only attack on it would be that the Raleigh City Council is unqualified to make such a law. But what if the NC legislature did it? Can a federal judge rule that the NC legislature is prohibited from making a law declaring babies alive at conception? That isn't covered in the Constitution anywhere and would therefore be a power reserved for the States. The 10th Amendment would cede the power to the State legislature and the 14th would give equal protection under the law to the baby.
Yup, that seems really dangerous to me. Dangerous to who is determined by who is in power.
That is no basis for a Republic. Yes, the 14th Amendment is ripe for abuse...and it has been abused.
https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
Of course a judge can and will invalidate a state law banning abortion which is what your example would do. He/she is bound by the Supreme Court's decision in Roe v. Wade and follow on cases.
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The modern judge has no real interest in, or training on the Constitution beyond what I think of as Constitutional Law 101. The modern law school is far more a plantation than a challenging place of learning, just like most of the other colleges and universities around the country.
Equal Protection should be simply to understand and impose, but courts have found it far more fun to invent rights where none exist and to use those inventions to deny rightful liberty to others with impunity.
Madison versus Marbury (sp) did far more than resolve a nagging judicial issue of the day. It created a kingdom within the federal court that is being abused to destroy everything that holds the country together.
Which law school did you graduate from and in what year?
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Which law school did you graduate from and in what year?
Nice try in a kristin sort of way.
Reminds me of your posts about bathrooms. Change the topic by changing the target.
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Nice try in a kristin sort of way.
Reminds me of your posts about bathrooms. Change the topic by changing the target.
I'd also like to see more substance and less nonsense, but, then I'd be accused of being Fast Eddie.
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Nice try in a kristin sort of way.
Reminds me of your posts about bathrooms. Change the topic by changing the target.
Cracker is holding himself out as an expert on what the judiciary knows, so I am curious whether there is any knowledge base behind that or whether it is mere southbound gas out of a northbound cracker.
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You might want to lookup "Disparate Impact".
I don't understand. What does Disparate Impact have to do with the 14th Amendment working against or in conjunction with the Bill of Rights?
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https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights
Of course a judge can and will invalidate a state law banning abortion which is what your example would do. He/she is bound by the Supreme Court's decision in Roe v. Wade and follow on cases.
Well, that's the easy way out of it.
I gave an example that probably demonstrates how I'm thinking about this. It would seem to me that in reading the Constitution, I cannot find anything that allows the Supreme Court to rule on a State declaration on when life begins EXCEPT a previous ruling which mangled the Constitution in the first place by first assuming the right to an abortion, then elevating that assumption to Constitutional status in order use the 14th Amendment to override Texas' 100 year claim on regulating the issue. Boom, you've provide the perfect example of my concerns.
So my question then is - if someone claims a right contrary to State law, when is that right NOT elevated to 14th Amendment status and when does that right NOT override the Bill of Rights? The answers I find are almost never. That means that every one of the other Amendments are subject to being compromised by rights claimed under the 14th.
Is the 14th Amendment a threat to the Bill of Rights? I believe undoubtedly yes and we're going to have to suffer for what previous judges have done with it.
BTW, judges are only bound by a higher court's ruling if they decide to be. If they develop their own logic on why the higher ruling doesn't apply then they are the law until a higher court disagrees with them.
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Cracker is holding himself out as an expert on what the judiciary knows, so I am curious whether there is any knowledge base behind that or whether it is mere southbound gas out of a northbound cracker.
From a progressive who claims to know the hearts of every southern democrat since reconstruction, I can see why you would have serious difficult separating fact from opinion.
For your information, DIXIE-CRATS is the proper term for crossover democrats voting for republicans in the old days, but I doubt your progressive indoctrination ever covered that.
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So my question then is - if someone claims a right contrary to State law, when is that right NOT elevated to 14th Amendment status and when does that right NOT override the Bill of Rights? The answers I find are almost never. That means that every one of the other Amendments are subject to being compromised by rights claimed under the 14th.
When the SCOTUS says it is or the Constitution is duly amended.
Is the 14th Amendment a threat to the Bill of Rights? I believe undoubtedly yes and we're going to have to suffer for what previous judges have done with it.
I guess it depends on what scenarios you are thinking of. I am not sure where equal treatment of citizens under the law is a threat to the Constitution.
BTW, judges are only bound by a higher court's ruling if they decide to be. If they develop their own logic on why the higher ruling doesn't apply then they are the law until a higher court disagrees with them.
Most judges don't like to be overruled so I see few decisions where it is clear that the judge is just thumbing his/her nose at the appellate court. It doesn't accomplish much other than to waste their time as their ruling is unlikely ever to take effect, even for a nanosecond. But sometimes there are legitimate distinguishing factors that merit a ruling in one direction and then see what the appellate court does with it.
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From a progressive who claims to know the hearts of every southern democrat since reconstruction, I can see why you would have serious difficult separating fact from opinion.
For your information, DIXIE-CRATS is the proper term for crossover democrats voting for republicans in the old days, but I doubt your progressive indoctrination ever covered that.
Lets see . . . you put out some stupid bs about the judiciary and then attack messenger when you are called on it. Isn't that just special.
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I am not sure where equal treatment of citizens under the law is a threat to the Constitution.
When equal treatment is confused with equal protection and is used to override Constitutionally protected rights.
Basically the 14th can be used to elevate any law to Constitutional status and then the Constitution is broken. Laws made by Congress or States are not the supreme law of the land but have been elevated over Constitutional protections via the 14th.
When you can twist laws like this then it produces an unstable Republic and your own position is uncertain. As soon as the opposition takes power, everything changes on you. The "law" is no longer based on law but is based on the whims of those in power.
Is that the kind of government you want?
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When equal treatment is confused with equal protection and is used to override Constitutionally protected rights.
Basically the 14th can be used to elevate any law to Constitutional status and then the Constitution is broken. Laws made by Congress or States are not the supreme law of the land but have been elevated over Constitutional protections via the 14th.
When you can twist laws like this then it produces an unstable Republic and your own position is uncertain. As soon as the opposition takes power, everything changes on you. The "law" is no longer based on law but is based on the whims of those in power.
Is that the kind of government you want?
I honestly don't understand that you are on about. Do you have an example?
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I honestly don't understand that you are on about. Do you have an example?
Apparently not any that you would understand. I've given several.
Here's yet another - courts take a state law outlawing discrimination against sexual discrimination, connect it to the 14th Amendment and then use it to override 1st amendment rights protecting the free exercise of religion. Or, Cryer v Klein if you prefer.
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Apparently not any that you would understand. I've given several.
Here's yet another - courts take a state law outlawing discrimination against sexual discrimination, connect it to the 14th Amendment and then use it to override 1st amendment rights protecting the free exercise of religion. Or, Cryer v Klein if you prefer.
You do realize that absent the 14th Amendment, the 1st Amendment does not apply to any actions of a state government, right?
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You do realize that absent the 14th Amendment, the 1st Amendment does not apply to any actions of a state government, right?
I would agree they shouldn't but in terms of the modern legal status they do and have for the last 100 years.
https://www.quora.com/Why-does-the-First-Amendment-apply-to-state-and-local-laws (https://www.quora.com/Why-does-the-First-Amendment-apply-to-state-and-local-laws)
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Apparently not any that you would understand. I've given several.
Here's yet another - courts take a state law outlawing discrimination against sexual discrimination, connect it to the 14th Amendment and then use it to override 1st amendment rights protecting the free exercise of religion. Or, Cryer v Klein if you prefer.
The issue here is whether a state law against discrimination is, or is not, trumped by the First Amendment protection of freedom of religion. The issue is not about someone using the 14th Amendment to elevate a personal beef or a local law to constitutional status. In fact, without the 14th Amendment, Missy Sweet Cakes wouldn't have even had an argument that she and hubby were not guilty. In this case, they were the proponents of the 14th Amendment as that is the only vehicle to apply the First Amendment to the State of Oregon.
The bigger issues is whether a religious belief can trump a secular law such as an anti-discrimination law. Arguing that religious beliefs trump is a losing argument. It has to be that way. If the religious trumps and Christians can discriminate against gays, the Muslims can commit honor killings and sell their 13 year old daughters to the highest bidder. As soon as we start setting the laws based on beliefs, there is no freedom of religion as there will be one dominant religion now setting the laws.
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The issue here is whether a state law against discrimination is, or is not, trumped by the First Amendment protection of freedom of religion. The issue is not about someone using the 14th Amendment to elevate a personal beef or a local law to constitutional status. In fact, without the 14th Amendment, Missy Sweet Cakes wouldn't have even had an argument that she and hubby were not guilty. In this case, they were the proponents of the 14th Amendment as that is the only vehicle to apply the First Amendment to the State of Oregon.
The bigger issues is whether a religious belief can trump a secular law such as an anti-discrimination law. Arguing that religious beliefs trump is a losing argument. It has to be that way. If the religious trumps and Christians can discriminate against gays, the Muslims can commit honor killings and sell their 13 year old daughters to the highest bidder. As soon as we start setting the laws based on beliefs, there is no freedom of religion as there will be one dominant religion now setting the laws.
The issue is whether you can force someone to violate their religious beliefs.
Why do you think it's just fine and dandy to force a Christian organization to hire gays or any other unrepentent sinner?
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Arguing that religious beliefs trump is a losing argument.
So if a State makes a law outlawing church buildings, religion is SOL? You really don't think through the consequences of what you say. Up your game.
If a government can justify controlling anything about religion then it can justify controlling everything.
Additionally, your logic is invalid by legal precedence. The highest law is the Constitution, then federal law, then State law. Federal vs State gets a little complicated because the federal government should (is supposed to) be limited in topics addressed in the Constitution that it may make laws on. Anything not mentioned is reserved for the States. But both are inferior to the Constitution. So any State law that conflicts with a Constitutional protection automatically loses because States cannot change what the Constitutional agreement is.
Lawyers get paid a lot of money to figure out ways around these things and one of the favorites is to claim equal protection via the 14th Amendment, thus raising the State Law, passed by State legislatures to Constitutional status. Now they claim a conflict between the 1st Amendment and 14th Amendment and gosh, we'll just have to tell the religious people to stand aside.
That is how it happens. It would be humorous if it were not so serious and so flawed. Every time it happens, the religious person is denied their equal protection but they just don't care. From your message saying "Missy", I take it that you do not care either that the State of Washington is punishing the Klein's religious beliefs. But note that despite excessive fines and punishments, they have not been able to change them. Was it Oregon or Colorado where the judge actually said that claiming first Amendment protection of religion could not be used as a defense? Think about that, a judge actually said that they could not follow their religious conviction.
The slaves are choosing to be whipped and it's not having any impact. Guess the next step is to shoot them in the head, right? Isn't that what you do with a slave that refuses to behave?
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The issue is whether you can force someone to violate their religious beliefs.
Why do you think it's just fine and dandy to force a Christian organization to hire gays or any other unrepentent sinner?
Because if you accord that right to Christians, you have to accord Muslims the right not to hire women or infidels, etc. It goes on and on and on.
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Because if you accord that right to Christians, you have to accord Muslims the right not to hire women or infidels, etc. It goes on and on and on.
Yes, I think you are catching on.
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So if a State makes a law outlawing church buildings, religion is SOL? You really don't think through the consequences of what you say. Up your game.
It is not that I don't think things through, it is that you don't understand constitutional law. Have you ever taken a course on the subject? Have you ever argued a case on a constitutional issue?
Additionally, your logic is invalid by legal precedence. The highest law is the Constitution, then federal law, then State law. Federal vs State gets a little complicated because the federal government should (is supposed to) be limited in topics addressed in the Constitution that it may make laws on. Anything not mentioned is reserved for the States. But both are inferior to the Constitution. So any State law that conflicts with a Constitutional protection automatically loses because States cannot change what the Constitutional agreement is.
See above! You don't know what you are talking about. No one right enumerated in the Constitution is absolute. When a policy of the government is challenged on constitutional grounds, the court will apply one of three levels of scrutiny to the governmental act/law. Ones that implicate an enumerated right, such as freedom of religion, will get strict scrutiny which means that the court will look to see if the governmental entity has a compelling governmental interest, that the law is narrowly tailored to achieve that interest, and the law/policy must be narrowly tailored to achieve that interest. Sooner or later, the SCOTUS will rule on the issue of public accommodations based on a claim of religious liberty.
It is you who can't see the forest for the trees. You forget that there is more than one religion in this country and that the Constitution protects all of them. Wait until the Muslims and the Hindus, etc, claim rights to discriminate against Christians based on their religious freedom. We will see how you like it then.
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No one right enumerated in the Constitution is absolute.
Well, there's the problem then.
Why do we have a Constitution? If nothing that is stated in the Constitution is absolute then everything can be changed in it, why bother to even have one? You say nothing is absolute then what can not be taken away? Constitutional rights are absolute or they are meaningless. Meaningless laws are no basis for a Republic (a system of government based on law). If your rights are not absolute then how do you know when or even if they exist?
FWIW, Yes, I have had courses in the Constitution and in law. No, I am not one of the roughly 300 living lawyers who have argued before the Supreme Court and neither are you. It's amateurish to attack someone's credibility this way, I thought you above that. Post a picture of your Quill?
Google "hierarchy of laws" and learn a little. Or here's a couple of direct links
NY University School of Law: A Guide to the U. S. Federal Legal System http://www.nyulawglobal.org/globalex/United_States.html (http://www.nyulawglobal.org/globalex/United_States.html)
Georgetown University Law Center: Which Court is Binding http://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/upload/which_court_is_binding_painter-and-mayer-final.pdf (http://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/upload/which_court_is_binding_painter-and-mayer-final.pdf)
Pay special attention to that second document, especially the table on page 5. Note that when there is a conflict between a federal issue and a state issue, the decision is usually (always?) made in a federal court. Looping back to the Kleins, a state issue was used to punish them in a state court but completely disregarded their federal rights.
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Well, there's the problem then.
Yes we do. It is your lack of understanding or ability to think beyond your obsession with gays and wedding cakes.
Why do we have a Constitution? If nothing that is stated in the Constitution is absolute then everything can be changed in it, why bother to even have one? You say nothing is absolute then what can not be taken away? Constitutional rights are absolute or they are meaningless. Meaningless laws are no basis for a Republic (a system of government based on law). If your rights are not absolute then how do you know when or even if they exist?
We have a constitution to set the form of government. We have a Bill of Rights to make it more difficult for the government to infringe on liberties.
I don't think you understand the meaning of absolute. An absolute right to assemble would allow a couple of dozen Marxists to set up camp on the Brooklyn Bridge until they got bored and left which might take decades. An absolute right to freedom of speech allows some deranged individual to yell "fire" in a crowded theater. An absolute right to follow one's religious beliefs means that a Muslim can kill you without repercussion as you are an infidel. The country and society can't function with everyone running around claiming that their rights trump your rights absolutely.
FWIW, Yes, I have had courses in the Constitution and in law. No, I am not one of the roughly 300 living lawyers who have argued before the Supreme Court and neither are you. It's amateurish to attack someone's credibility this way, I thought you above that. Post a picture of your Quill?
Not what I asked. I asked if you have taken Constitutional Law, i.e. in a law school. Did you? Clearly you didn't absorb much in whatever courses you did take if you think that constitutional issues are only raised and argued in the SCOTUS. I have argued no higher than a Court of Appeals.
I will ignore your silly-ass links. I have been dealing with Con Law for decades.
Looping back to the Kleins, a state issue was used to punish them in a state court but completely disregarded their federal rights.
Have they appealed it? State courts have jurisdiction to hear constitutional cases. Lower courts get overturned. The only court that is not overturned by another court is the SCOTUS, but they can sometimes be effectively overruled by Congressional action or an amendment to the Constitution.
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We have a Bill of Rights to make it more difficult for the government to infringe on liberties.
We have a Bill of Rights to PREVENT the government from infringing on liberties. They don't use words like "should not" or "probably not a good idea", they use words like "shall not be violated", Shall not be infringed", "Shall make no law", "Shall enjoy the right" Those are absolute phrases, there is no wiggle room in them unless you start playing Clintonian games with the English language. The fact that they have been screwed up before now is not license to screw them up again.
And no, I did not attend law school but I was taught by law school professors from UNC and Campbell in both undergrad and masters program.
Constitutional issues are not only argued in the Supreme Court. Decisions about Constitutional issues are only decided in the Supreme Court. But every court from the local law judge up to District Appeals courts have to consider Constitutional issues. They don't always do it right, which is why we have the appeals process.
And yes, I do understand absolute. I'm a libertarian, remember.
True or false - "No laws may contradict any of the Constitution's principles"?
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Because if you accord that right to Christians, you have to accord Muslims the right not to hire women or infidels, etc. It goes on and on and on.
oh the horrors!!!
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I recall Miami went through this with Santeria animal sacrifices bumping up against animal cruelty laws.
Don't recall the resolution, however.
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And no, I did not attend law school but I was taught by law school professors from UNC and Campbell in both undergrad and masters program.
Apparently you covered more of the history of its enactment than considered the evolution of Constitutional interpretation.
True or false - "No laws may contradict any of the Constitution's principles"?
It could depend on what you mean by "principles", but if that means the text then the answer is:
True only if it is an exam question in a survey course. In the real world, it is false.
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True only if it is an exam question in a survey course. In the real world, it is false.
It would appear that your position is that answers to tests in a course on Constitutional Law don't refect the real world.
So, then why would you care if someone took a course on Constitutional Law?
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It is my opinion that in a functioning republic, our rights are not absolute, expressly because those rights are balanced against the rights of others and the common good. We can come up with numerous scenarios that illustrate that this is the case, so I won't belabor that point. The disconnect in this discussion seems to be summed up here:
If a government can justify controlling anything about religion then it can justify controlling everything.
This is not true in our nation. We can take anything to its illogical extreme and claim the end is nigh. But, thankfully, we don't live at the extremes. Nor does our republic function at the extremes, having processes in place to protect against that. Rather, we exist in the broad middle, and we strive for sensible balance.
Even the founding fathers recognized that we can collectively justify abridging rights in some circumstances so that we may better function as a nation and so that the common good is protected. So the idea of "absolute" rights is a misnomer unless it has some definition that I am not familiar with.
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It is my opinion that in a functioning republic, our rights are not absolute, expressly because those rights are balanced against the rights of others and the common good. We can come up with numerous scenarios that illustrate that this is the case, so I won't belabor that point. The disconnect in this discussion seems to be summed up here:
This is not true in our nation. We can take anything to its illogical extreme and claim the end is nigh. But, thankfully, we don't live at the extremes. Nor does our republic function at the extremes, having processes in place to protect against that. Rather, we exist in the broad middle, and we strive for sensible balance.
Even the founding fathers recognized that we can collectively justify abridging rights in some circumstances so that we may better function as a nation and so that the common good is protected. So the idea of "absolute" rights is a misnomer unless it has some definition that I am not familiar with.
so, would you agree that wrt our rights, although not absolute, that anyone wanting to abridge those rights must have solid rational reasons?
An example of irrational would be those that would abridge rights in order to promote the feeling of safety (hint: think the security BS theater that is TSA). I'm sure people here can come up with many many many feel-good laws that have abridged our rights.
Another point, if you feel that no rights are absolute, do you also believe that there can be no limit to abridging our rights?
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It is my opinion that in a functioning republic, our rights are not absolute, expressly because those rights are balanced against the rights of others and the common good.
Agree on the first part, we balance our rights against the rights of others. However, I disagree completely on limiting rights for "the common good". The "common good" is collectivist bullshit that is used to seize the rights of individuals for the good of the state, and as such is an anathema to the rights of individuals.
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Agree on the first part, we balance our rights against the rights of others. However, I disagree completely on limiting rights for "the common good". The "common good" is collectivist bullshit that is used to seize the rights of individuals for the good of the state, and as such is an anathema to the rights of individuals.
Spot in Jeff. It is the government, and political class's way of taking away our rights, and our property. Liberal/Progressives are too uniformed to see that.
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Agree on the first part, we balance our rights against the rights of others. However, I disagree completely on limiting rights for "the common good". The "common good" is collectivist bullshit that is used to seize the rights of individuals for the good of the state, and as such is an anathema to the rights of individuals.
While you may believe the term has been bastardized, it was a carefully-considered concept of the founding fathers, and one that substantially pre-dates our nation's birth. Nearly unanimously, the founders recognized limitations upon our rights when exercise thereof was detrimental to the common good. They were careful, however, to assert that the common good arose out of natural law and the ability to abridge rights was to be carefully considered and was a power bestowed by the people upon their government.
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While you may believe the term has been bastardized, it was a carefully-considered concept of the founding fathers, and one that substantially pre-dates our nation's birth. Nearly unanimously, the founders recognized limitations upon our rights when exercise thereof was detrimental to the common good. They were careful, however, to assert that the common good arose out of natural law and the ability to abridge rights was to be carefully considered and was a power bestowed by the people upon their government.
Limitations of our rights come from the nature of rights, not by compromising the meaning the English language. If you're seeing something where you think one right conflicts with another then perhaps you're not looking at real rights.
I'd need to see some documentation of "carefully considered concepts of the founding fathers" before I could agree that they wrote words that they did not mean. The gentlemen were educated men. For example, when they wrote "The right of the people to be secure...shall not be violated...", they did not mean that it would be OK to violate them some of the time.
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so, would you agree that wrt our rights, although not absolute, that anyone wanting to abridge those rights must have solid rational reasons?
No, "rational reasons" is actually too broad. I like this limited set of circumstances:
Natural law limitations upon the exercise of natural rights embrace
in principle (1) consideration for the common good, (2) respect
for the equal rights of others, and (3) realization that when the basis
of the right is absent, the exercise of the claimed right can properly
be denied.
http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3506&context=wlulr
In the founders' infinite wisdom, they recognized that even these limited, clearly-stated limitations were subject to interpretation. Thus, we have the branches of government and governmental processes in place to theoretically ensure that we remain in the "broad middle" without reaching untenable extremes.
An example of irrational would be those that would abridge rights in order to promote the feeling of safety (hint: think the security BS theater that is TSA). I'm sure people here can come up with many many many feel-good laws that have abridged our rights.
Yes, I think that's right. Federal laws that abridge rights without discernible affect would seem to fail item #1 above, at least.
Another point, if you feel that no rights are absolute, do you also believe that there can be no limit to abridging our rights?
At risk of seeming pedantic, I am not sure I understand the question. But I think my comments above have answered this.
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Limitations of our rights come from the nature of rights, not by compromising the meaning the English language. If you're seeing something where you think one right conflicts with another then perhaps you're not looking at real rights.
I'd need to see some documentation of "carefully considered concepts of the founding fathers" before I could agree that they wrote words that they did not mean. The gentlemen were educated men. For example, when they wrote "The right of the people to be secure...shall not be violated...", they did not mean that it would be OK to violate them some of the time.
You forgot the rest of it: "...against unreasonable searches and seizures...". Anyway, I've read this paper (http://I have read this a few times: http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3506&context=wlulr) a few times now. It is a good read.
I don't think it's in question that our rights are not absolute, if by absolute you mean able to be exercised with no limits. And I haven't read anything to suggest that the founders believed they were absolute, either. Perhaps I am not understanding what you mean by absolute.
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Yes, I think that's right. Federal laws that abridge rights without discernible affect would seem to fail item #1 above, at least.
"discernible affect" is the wrong measure.
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I believe there is also a term in that there document that says something about "due process of law." Meaning they understood there is a proper time to deprive someone of rights up to and including the right to life.
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"discernible affect" is the wrong measure.
It's not a measure. It's a result (or lack thereof). My point being, if a law that abridges rights has no discernible effect, even if implementation was altruistic and for the immediate common good or to protect the equal rights of others, can it be said to pass any of the tests we describe above?
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It would appear that your position is that answers to tests in a course on Constitutional Law don't refect the real world.
So, then why would you care if someone took a course on Constitutional Law?
I said "survey" course like might be taught in undergrad, not an actual Con Law course in law school where they study the development and methods of constitutional interpretation and how the major lines of cases have developed over the years. Con Law is an hour a day for a year to year and a half depending on the school.
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One misconception runs through much of this discussion and that is the argument that one can discern all issues of constitutional interpretation simply by reading the text. While that is one lens upon which to suss out the meaning, it is not the only one. Like all laws, these were written by a committee. Like all laws, different people had somewhat different interpretations and the time, and often ambiguities are deliberately left into the writings because they have a majority who will support a particular wording and if made more specific, it may lose support. There were numerous compromises made in the Constitution because not all states agreed on all the principles. The obvious, and largest compromise was over the issue of slavery.
In addition to the language of the Constitution itself, there are numerous contemporary writings, most prominent of which was the Federalist Papers and the anti-Federalist Papers. These were writings of some of the founding fathers who were then trying to explain what the Constitution meant. There would have been no need had the founding fathers believed that the wording was the end all and the be all of interpretation.
The SCOTUS set up "strict scrutiny" of governmental infringement of the enumerated rights which is set out to require a compelling governmental interest, and the infringement will actually serve that compelling governmental interest and that such infringement must be as limited as possible. Those are pretty strong protections.
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I said "survey" course like might be taught in undergrad, not an actual Con Law course in law school where they study the development and methods of constitutional interpretation and how the major lines of cases have developed over the years. Con Law is an hour a day for a year to year and a half depending on the school.
The answer to the question doesn't depend on whether the student is surveying/auditing the course or taking it for credit.
In any case, you didn't answer my question.
So, again, if the answers to tests conflict with the real world, why would you care if someone took a course on Constitutional Law?
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The answer to the question doesn't depend on whether the student is surveying/auditing the course or taking it for credit.
In any case, you didn't answer my question.
So, again, if the answers to tests conflict with the real world, why would you care if someone took a course on Constitutional Law?
I believe you are misinterpreting what Kristin said. She wasn't distinguishing between auditing and taking a course for credit. A survey course is a brief introductory course, generally lasting one quarter/semester, as opposed to a more in-depth curriculum that spans several quarters/semesters and goes into more depth and theory.
If I'm wrong, I don't mind being corrected.
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The answer to the question doesn't depend on whether the student is surveying/auditing the course or taking it for credit.
In any case, you didn't answer my question.
So, again, if the answers to tests conflict with the real world, why would you care if someone took a course on Constitutional Law?
Little Joe made the response that I would have.
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Little Joe made the response that I would have.
and both of you missed what the question was actually about.
In Reply #26, you asked: "I asked if you have taken Constitutional Law"
In Reply #30, part of the post is:
"Quote
True or false - "No laws may contradict any of the Constitution's principles"?
It could depend on what you mean by "principles", but if that means the text then the answer is:
True only if it is an exam question in a survey course. In the real world, it is false. "
Apparantly, according to Kristin, courses aren't consistent with the real world. So, again I ask: If the answers to tests conflict with the real world, why would you care if someone took (surveyed, audited, or took for credit) a course on Constitutional Law?
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and both of you missed what the question was actually about.
In Reply #26, you asked: "I asked if you have taken Constitutional Law"
In Reply #30, part of the post is:
"Quote
True or false - "No laws may contradict any of the Constitution's principles"?
It could depend on what you mean by "principles", but if that means the text then the answer is:
True only if it is an exam question in a survey course. In the real world, it is false. "
Apparantly, according to Kristin, courses aren't consistent with the real world. So, again I ask: If the answers to tests conflict with the real world, why would you care if someone took (surveyed, audited, or took for credit) a course on Constitutional Law?
Well, actually, I wasn't commenting either way on yours and Kristin's debate. I was merely commenting on the fact that you misinterpreted (intentionally or not) the difference between a survey course and auditing a course.
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and both of you missed what the question was actually about.
In Reply #26, you asked: "I asked if you have taken Constitutional Law"
In Reply #30, part of the post is:
"Quote
True or false - "No laws may contradict any of the Constitution's principles"?
It could depend on what you mean by "principles", but if that means the text then the answer is:
True only if it is an exam question in a survey course. In the real world, it is false. "
Apparantly, according to Kristin, courses aren't consistent with the real world. So, again I ask: If the answers to tests conflict with the real world, why would you care if someone took (surveyed, audited, or took for credit) a course on Constitutional Law?
She doesn't have an answer to that because she can't. She has a conflict because she argues what she wants emotionally rather than what is consistent
She advises that the Bill of Rights is a document to be ignored when convenient. Nobody is going to convince her otherwise because she is arguing what she wants emotionally.
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She doesn't have an answer to that because she can't. She has a conflict because she argues what she wants emotionally rather than what is consistent
She advises that the Bill of Rights is a document to be ignored when convenient. Nobody is going to convince her otherwise because she is arguing what she wants emotionally.
Are you a shrink in real life? :)
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and both of you missed what the question was actually about.
In Reply #26, you asked: "I asked if you have taken Constitutional Law"
In Reply #30, part of the post is:
"Quote
True or false - "No laws may contradict any of the Constitution's principles"?
It could depend on what you mean by "principles", but if that means the text then the answer is:
True only if it is an exam question in a survey course. In the real world, it is false. "
Apparantly, according to Kristin, courses aren't consistent with the real world. So, again I ask: If the answers to tests conflict with the real world, why would you care if someone took (surveyed, audited, or took for credit) a course on Constitutional Law?
Let's start at the basics here. A survey course is one that gives a brief overview of a larger and complex subject. Given that limitations on time, teachers are likely to make statements which are largely true but not 100% true. Undergrad courses dealing with the Constitution have to cover its predecessor and other historical forces, the part of the Constitution which deals with with the structure and functioning of the government, i.e. the original articles and then can touch on the amendments and some of the history of how they have developed. That is about enough for a class that might meet for 45 segments of 50m each. They certainly don't get involved in the nuances of Constitutional interpretation. Only law school students need to know that you can interpret the Constitution from a textual standpoint, an intent of the drafter standpoint, intent of the ratifiers standpoint, from stare decisis, and from a resultant standpoint.
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She doesn't have an answer to that because she can't. She has a conflict because she argues what she wants emotionally rather than what is consistent
Ooooo! Jedi mind shit! The force is strong in this one! ::)
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Are you a shrink in real life? :)
Couldn't be. In real life, shrinks rarely state why a person acts or feels a certain way. They question why someone acts or feels a certain way. That way, when someone realizes "why" they often see the fallacies.
Beware of people that claim to know why someone says or does something.
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Ooooo! Jedi mind shit! The force is strong in this one! ::)
Nope. Just experienced, going back to the early days of usenet, after Algore invented the internet, before Berners-Lee invented the web. I've seen your personality multiple times. If we drill away at this for 5-10 years, we will eventually arrive at a place where we all learn that the liberal wants what the liberal wants and never mind that things conflict.
But you don't hold my interest to want to go that long.
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Nope. Just experienced, going back to the early days of usenet, after Algore invented the internet, before Berners-Lee invented the web. I've seen your personality multiple times. If we drill away at this for 5-10 years, we will eventually arrive at a place where we all learn that the liberal wants what the liberal wants and never mind that things conflict.
But you don't hold my interest to want to go that long.
Your ignorance is only exceeded by your arrogance.
I go back to Compuserve, before the Usenet was in vogue with the masses. That experience doesn't qualify anyone to psychoanalyze another.
Of course, your diagnosis of me as a flaming liberal shows that either your reading comprehension is woefully lacking or your memory is insufficient to store and process the hundreds of posts I have made.
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She advises that the Bill of Rights is a document to be ignored when convenient.
Ummmm.....isn't that the source of much rant on PS???
Your ignorance is only exceeded by your arrogance.
I go back to Compuserve, before the Usenet was in vogue with the masses. That experience doesn't qualify anyone to psychoanalyze another.
Of course, your diagnosis of me as a flaming liberal shows that either your reading comprehension is woefully lacking or your memory is insufficient to store and process the hundreds of posts I have made.
Ha ha ha ha ha....
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Your ignorance is only exceeded by your arrogance.
I go back to Compuserve, before the Usenet was in vogue with the masses. That experience doesn't qualify anyone to psychoanalyze another.
Of course, your diagnosis of me as a flaming liberal shows that either your reading comprehension is woefully lacking or your memory is insufficient to store and process the hundreds of posts I have made.
sticks and stones dearie.
Compuserve...lol!
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Still can't get a solid explanation of what it means to have an "absolute" right.
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Still can't get a solid explanation of what it means to have an "absolute" right.
Personally, I think that anytime anyone talks in absolutes, they are living in a dream world.
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Personally, I think that anytime anyone talks in absolutes, they are living in a dream world.
Rainbows and Unicorns. The exclusive theater of operation of the Liberal/Progressive.
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Actually, when thinking of "absolute" rights, the 14th Amendment is a threat to the Bill of Rights as originally written.
Let me take the first example.
The 1st Amendment, as written, does not apply to the States. It exclusively binds the federal government ("Congress shall make no law..."). Read that way (ie only applying to the feds), it would be quite feasible to read it in an absolute way...ie. Congress shall make no law, whatsoever, no exceptions.
The problem comes when you include the States under the same umbrella, as the incorporation doctrine has done. Now you run into edge-cases where the Courts reasonably say "this can't be absolute", like the "You can't shout fire in a crowded theatre".
Here's the problem: The courts will reasonably say: "Someone has to be able to punish that. Since the same thing applies to both the State and Federal government, this exception must also apply"
If we left the States out of the 1st Amendment, then it would be a simple matter: Congress has precisely zero business regulating what you can say in a crowded theatre, however, the State can do so (depending on the provisions of such State's own Constitution).
So, the simple fact is, the incorporation of the Bill of Rights against State governments has necessarily weakened the application of these rights.
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Actually, the issue with shouting fire in a movie theater is not the shouting, it's the effect of the shouting. I can walk into an empty movie theater and scream fire at the top of my lungs and it's not illegal. I could similarly go in to a completely crowded theater and start asking everyone "do you smell smoke" in a very quiet whisper and potentially cause a stampede.
You have free speech to say anything you want. You also have responsibility for your actions.
I do like the idea of the perversion of 1A causing unintended side effects. If 1A was read as the English words are written then there should be no confusion about them. It is only when you start playing games with the meaning of the English words that a problem develops. At that point, as I've asked before, why even have a Constitution since agreement on the meaning cannot be reached.
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So, the simple fact is, the incorporation of the Bill of Rights against State governments has necessarily weakened the application of these rights.
Very true! The Bill of Rights and the structure of much of the Constitution was a compromise to get the slave states to ratify the Constitution and join the union. We have been working around that compromise for over two centuries. The 14th Amendment was necessary to force the states to end slavery. Arguably, it didn't go far enough or was not clear enough in the intent. But it is what it is and you are correct that it forecloses a literal interpretation of the Bill of Rights.
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Very true! The Bill of Rights and the structure of much of the Constitution was a compromise to get the slave states to ratify the Constitution and join the union. We have been working around that compromise for over two centuries. The 14th Amendment was necessary to force the states to end slavery. Arguably, it didn't go far enough or was not clear enough in the intent. But it is what it is and you are correct that it forecloses a literal interpretation of the Bill of Rights.
Actually, it was the opposite. The 14th was imposed upon the confederate states, and their ratification was required for them to be readmitted to the Union.
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Actually, it was the opposite. The 14th was imposed upon the confederate states, and their ratification was required for them to be readmitted to the Union.
Actually not! If you will read my words carefully, you will note that I said "the Bill of Rights and much of the Constitution". That phraseology expressly leaves out all but the first ten amendments, which are the Bill of Rights. The 14th amendment is not one of the first ten amendments and it is not in the body of the Constitution. So my statement did not address the 14th amendment. I only address the 14th Amendment as part of the attempt to end slavery, which does not contradict your statement that it was forced on the Southern States. Yours is entirely a true statement, but it is not opposite what I said because I didn't not state that the 14th Amendment was a compromise, though there might have been some compromises in its wordings. I haven't specifically studied how the 14th became worded as it was.