Making Baby Jesus Cry - Page 318

Spanky · 09-13-2005, 05:36 PM

Quote:

Originally posted by Captain
Not a lot more. Think of what has been read into this:

"Congress shall make no law ... abridging the freedom of speech, or of the press ..."

Now the ninth is:

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

I'd argue that the ninth was more widely discussed at the time of adoption than the first, since the first amendment was one for which there was fairly broad support for what each person understood the words to mean (everybody is for a free press - especially if you don't ask them to define it). The ninth, on the other hand, was specifically put there by Madison and the Virginians to address what they perceived of as the best argument the Federalists had against the bill, the argument that by listing rights others were disparaged. Because the role of the ninth was to win over the swing voters, I think we have a lot of inication of the founders' intent on the 9th, and so there really is a fair bit for the court to go on.

The more complex question of what the unemerated rights are and what level of protection is due them makes a lot of sense in the British tradition - a tradition of an unwritten constitution. Everyone making the arguments at the time was accustomed to referencing a "constitution" of rights going back to the Magna Carta essentially developed in common law. The 9th amendment refers to "all those" rights, you know, the rights they'd just fought a war over.

My faith in strict constructionism is being shattered and no one is helping. This post is like a bomb. If the nineth Amendment was passed to insure that traditional rights were kept then there are common law rights.

The Amendment also seems to imply that these traditional rights trump any statutes passed by Congress. Just like the other enumerated rights.

And Sidd is wrong. It seems that the these common law rights trump government statutes. I belive that the English Constitution (which is really common law rights) seem to trump statutes.

So if there were common law rights created by British Courts that trump government statutes, then why can't American courts (and the Supreme Court) continue that tradition.

SlaveNoMore · 09-13-2005, 05:38 PM

Quote:

sebastian_dangerfield
When did you become an Order of the Queef tool? Were you one of those fat dorks who actually paid attention in Con Law and then debated the shit in the library with the other Ladykillers?

Since I copied one of your responses - I don't know, were you?

sebastian_dangerfield · 09-13-2005, 05:39 PM

Quote:

Originally posted by Shape Shifter
Did you have a falling out with Paul Mitchell?

Allergic reaction. Think barber pole. Terrible.

On the good side, I have a hot dermatologist.

Secret_Agent_Man · 09-13-2005, 05:40 PM

Quote:

Originally posted by Shape Shifter
Did you have a falling out with Paul Mitchell?

Good Lord, that's funny!

S_A_M

Captain · 09-13-2005, 05:40 PM

Quote:

Originally posted by Spanky
My faith in strict constructionism is being shattered and no one is helping. This post is like a bomb. If the nineth Amendment was passed to insure that traditional rights were kept then there are common law rights.

The Amendment also seems to imply that these traditional rights trump any statutes passed by Congress. Just like the other enumerated rights.

And Sidd is wrong. It seems that the these common law rights trump government statutes. I belive that the English Constitution (which is really common law rights) seem to trump statutes.

So if there were common law rights created by British Courts that trump government statutes, then why can't American courts (and the Supreme Court) continue that tradition.

My view: The 9th Amendment is the libertarian amendment. It envisions a limited government with broad rights reserved to the people. But it also envisions a flexible, developing constitution and set of rights.

sebastian_dangerfield · 09-13-2005, 05:41 PM

Quote:

Originally posted by SlaveNoMore
Since I copied one of your responses - I don't know, were you?

Stop being coy, fatty.

sebastian_dangerfield · 09-13-2005, 05:42 PM

Quote:

Originally posted by Captain
My view: The 9th Amendment is the libertarian amendment. It envisions a limited government with broad rights reserved to the people. But it also envisions a flexible, developing constitution and set of rights.

My view: Your view describes exactly the central essence of what America is and was designed to be.

Spanky · 09-13-2005, 05:43 PM

Here is another way of looking at it:

If English courts could just make up rights (that is what common law is - courts just making stuff up) that become permanent.

If these court made up rights could be used later to strike down legislation passed by Parliament.

If these rights were assumed to exist in the Republic after the revolution

Does that not assume that subsequent courts of the Republic could make up more rights that would be adopted by the legal system like in the British system?

These rights could also be used to strike down legislation?

Does that also not assume that strict constructionism is really a philosophy that only applies to civil law systems and not common law systems (like ours)?

Captain · 09-13-2005, 05:44 PM

Quote:

Originally posted by spookyfish
I find this avatar confusingly similar. Please try to use the original. Or Captain Morgan. Or something.

Thank you.

Better?

I don't want to change avatars three times in a day again, but all suggestions for future captains are welcome.

SlaveNoMore · 09-13-2005, 05:44 PM

Quote:

sebastian_dangerfield
Stop being coy, fatty.

Stop being smug, beanpole.

spookyfish · 09-13-2005, 05:46 PM

Quote:

Originally posted by Captain
Better?

I don't want to change avatars three times in a day again, but all suggestions for future captains are welcome.

Thank you.

I have no sense of you as a poster yet, although you seem knowledgable and better yet, non-inflammatory. Cap'n Crunch is available.

ltl/fb · 09-13-2005, 05:47 PM

Quote:

Originally posted by spookyfish
Thank you.

I have no sense of you as a poster yet, although you seem knowledgable and better yet, non-inflammatory. Cap'n Crunch is available.

That would be awesome.