The Right's Bastardization Of The Constitution

[eniwetok]

Originalism and textualism SOUND legitimate but what's the real game here?

Scalia, like Bork, was at war with the 9th Amendment... and if they could negate this key rule of construction it would turn the Constitution on its head. Instead of a system that protected rights by limiting government power they'd create a system where government automatically had power and the People fight to create new rights. In this way Reagan... who selected both Bork and Scalia, could reward the social conservatives who joined the GOP coalition. How would this be done? The Ninth says

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A textualist can simply claim since no rights are mentioned... no one can know what's protected... so new rights must be CREATED legislatively.

The Right NEEDS to find ways to bastardized the Constitution to reward it's constituents... so aside from the Ninth, it bastardized the Second to negate the militia clause... and the 14th to give corporations more rights.

It's rather amazing that they've gotten away with this so long... but then Dems don't seem to think strategically nor do they go for the jugular.

[lapfog_1]

1. enumerated rights

the right to privacy does not exist in the constitution but lives in principle...

[eniwetok]

2. Of COURSE it exists!

It exists simply because the federal government was given no direct power to limit privacy. Dems are fools not to push this line. If the the Right wants to limit privacy then the burden is on THEM to change the Constitution to give government that power.

[lapfog_1]

3. watch the clip

in fact, watch the entire episode...

It presents succinctly the argument that the right to privacy exists.

The Federalist Society would have you believe otherwise (that ONLY those rights enumerated in the Bill of Rights are constitutional... and the government has the right to invade privacy for any other situation_/

[ProfessorGAC]

4. Sort of What Eniwetok Says Here

The constitution spends far more time telling the government what it can't abridge then actually enumerating specific rights. The second says what the government CAN'T do about guns. The religion piece in the first says what the government can't sanction.

The silly originalism and textualism arguers talk about "only what's enumerated" while ignoring that the overarching concept of the document is to limit the government from taking things away. IOW, the rights already exist. The Constitution reminds the government that they don't grant them and they are not the government's to take away.

[eniwetok]

5. REMEMBER... there was NOT going to be a bill of rights...

Madison and the Framers believed that there was no need for a Bill of Right because if the government wasn't given specific powers... all rights... at least for free persons, were thought to be secure... at least from the federal government. Madison also argued that to enumerate some rights placed those unenumerated at risk. HE WAS CORRECT. Scalia thought he found some clever way to negate the Ninth... yet just allow common law rights to exist... and in doing so he could claim rights like same sex marriage etc had to be created legislatively.

[ProfessorGAC]

9. I Think We're Agreeing Here

The framers believed the rights existed without any need to be granted. They did the BoR because there was some debate over what the government could and couldn't do. Then they came up with 10 things, covering 15 or more categories that basically said this is what the government cannot do.

There's not a whole lot language about what people are allowed to do by government. It's what the government can't stop.

[eniwetok]

12. the Second as a positive right

In Madison's intro to his proposed Bill Of Rights he categorized them... and one category was positive rights.

Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.
https://www.usconstitution.net/madisonbor.html

The Second Amendment doesn't protect a natural rights of free persons to own a firearm for self-protection or as property. It was simply creates a positive right that limits the power of Congress not to disarm or neglect state militias made up of the "People"... the able bodied freemen. Madison signed on to this request as a member of the VA ratification convention so he surely knew what it meant when he proposed it.

[ProfessorGAC]

13. Again, We Agree

I get your point, but i actually disagree with the quote you provide from Madison. The right to be treated fairly by the government is inherent. So, with him i disagree. With you, i generally agree fully.

[eniwetok]

14. not from the legal perspective

I'll defer to Madison in this matter. Governments, like well-regulated militias... don't exist in nature. From this early republican perspective the People (and the states) need newly stated rights to deal with their interactions with government such how the Second protects those well regulated militias necessary for the security of a free state. Interestingly, Madison's original draft said free nation and I've long wondered if this ties back to his writing in Federalist 46 where he suggests the state militias might be used to restore a republican government on the federal level in the unlikely case of an ursurper. Obviously this role for the state militias was never codified.

[ProfessorGAC]

15. But The Document Still Is Prohibiting the Government From Action

I know i'm inferring and reading between the lines on this, but by explicitly stating that there is right to bear arms, it's by extension prohibiting the government from asserting itself against that "inherent right".

I guess why we're going around in circles here is that our interpretation of "natural right" is different. I'm extending it to the whole "life liberty and pursuit of happiness" idea. (I know, different document, but same people.)

So, i see this more as a set of rules by which the government must behave so as to not to interfere in rights that are inherent, whether explicitly mentioned or not. In some cases, they decided there were some worthy of specification, but it still is far from the government having the ability or power to grant rights. The rights simply exist and the founding document says they can't infringe on those rights.

I think we're intellectually in the same place, but the devil is in the details.

[eniwetok]

16. why the Second is a positive right

"I know i'm inferring and reading between the lines on this, but by explicitly stating that there is right to bear arms, it's by extension prohibiting the government from asserting itself against that "inherent right"."

There are only 2 sections in the Constitution that state a purpose... the patents clause and the Second. If we use Madison's rules of construction that all rights are secure... again for free persons, because the government was given defined and limited powers... then the right to own a firearm is merely a natural right... for whatever reason. But the government does have powers to limit that right... consistent with its other powers.

The Second is a response to states that requested their militias be protected from any neglect from Congress under its then new Art 1 powers. VA requested this... and Madison signed on.

11th. That each state respectively shall have the power to provide for organizing, arming and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion, and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own state.

https://www.usconstitution.net/rat_va.html

But the Borks and Scalias want to negate the Ninth... so Scalia had to "find" this right in the Second even if it meant bastardizing it to remove the specific militia context. But if that's the official interpretation then it means that Congress DOES have the power to disarm State National Guards. Dems were fools not to make this argument... but then Dem strategy and framing has been cowardly and ineffective the past 35 years. Hell, they still don't have an effective response to Starve The Beast...

[eniwetok]

6. that's the point I'm making...

Bork was one of the Founders of the Federalist Society... and as you might remember it was Bork who claimed we could not know what the Ninth meant... it was like trying to figure out what was beneath an inkblot. I can understand why the GOP wants this new interpretation. The GOP has a minority agenda of protecting wealth and it needs to insure social conservatives stay in their coalition. It's about time the Dems went for the jugular on this. If the Dems don't expose this trap... they will forever be on the defensive on the issue of protecting key rights. The Dems should insist that either the GOP pass an amendment to give government the power to invade privacy... or that they GOP repeal the Ninth.

http://reinventing-america.blogspot.com/2006/01/if-right-opposes-right-to-privacy-let.html

[zipplewrath]

7. It ignores the original argument

The part about the Right Wing attitude about this is that the very debate about whether to have a Bill of Rights at all was the concern that "some fool will think that's all there are". The whole point of the 9th was that they hadn't tried to list them all, but they still existed. There was no intent what so ever to suggest that they had to be "legislated" to exist. It is true that there would be arguments forever about whether such rights existed and what they were. And the Congress was free to form their own point of view. So were the courts. And really, so was the executive. The Constitution provided the means to sort it all out.

[eniwetok]

8. No one can enumerate all rights

"The whole point of the 9th was that they hadn't tried to list them all, but they still existed."

No one can enumerate all rights except as rule of construction. Are we to believe we have no constitutional right to fall in love or not? I remember someone from the Lung Association once claiming there was no constitutional right to smoke cigarettes. THERE DOESN'T HAVE TO BE. But if government has a legitimate public interest concern it certainly can limit that right through its indirect powers.

[Initech]

10. So the GOP talks shit about the constitution, they say we must respect it at all times.

OK are they respecting the constitution when they deny us our right to protest? No.

OK are they respecting the constitution when they attack the "fake news" while promoting lunatic fringe sites? No.

OK are they respecting the constitution when they say we should deport Muslims? No.

OK are they respecting the constitution when they say we should close our borders? No.

OK are they respecting the constitution when they are for police shooting unarmed black men? No.

OK are they respecting the constitution when they say they want "limited government"? No.

OK are they respecting the constitution when they blame us for their failures? No.

In short, they don't really give a shit, to them it's a symbol.

[eniwetok]

11. on limited government...

I think the GOP wants limited government in select areas... that of limiting the safety net especially if it means taxing the rich to help fund it... and limits on government's involvement in business. But they don't seem to mind government having powers not given to the government... such as their war on privacy outside the 4th Amendment. I don't think most businesses care... but GOP strategists know they need to keep right wing Christians in their coalition. None the less they do pretend they have a monopoly on the Constitution.

The GOP is playing chess while the Dems play checkers. I see NO evidence of much strategic thinking on the part of Dems to counter a very well coordinated strategy the Right began in the 70's... a strategy that poses an existential threat to Democratic programs. The Right started Starve The Beast/Two Santa... a takeover of the courts, voter suppression, defunding the Dems as a party by going after unions and trial lawyers... etc.

[Hekate]

17. Why not? They already bastardized the Bible