Author Topic: primitives having yet another constitutional misunderstanding  (Read 697 times)

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Offline franksolich

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primitives having yet another constitutional misunderstanding
« on: February 04, 2008, 04:14:00 PM »
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x2808514

Oh my.

The primitives try to understand the Constitution, and as usual fail.

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warrior1  (1000+ posts)      Sat Feb-02-08 02:20 PM
Original message
 
I have never understood the Ninth Amendment

Could it anyone here but in layman's terms?

thanks

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

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fenriswolf  (1000+ posts)      Sat Feb-02-08 02:24 PM
Response to Reply #1
4. i think it means
 people cannot use the constitution or subvert the language so that in order to uphold the constitution some of the constitutional rights have to be stripped from other people.
 

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chimpsrsmarter  (1000+ posts)       Sat Feb-02-08 02:24 PM
Response to Original message
 
3. i found this, it's helpful.

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

The idea of a Bill of Rights worried some of the founders greatly. They feared that, by listing rights not to be infringed by the government, rights that were not listed might be subject to government interference because such interference was not specifically prohibited. The Ninth Amendment was written in an attempt to preclude such abuse.

Originally, the Ninth Amendment was a negative statement. In other words, it prevented the Bill of Rights from increasing government powers by limiting those powers solely to what was listed. In more recent years, however, the amendment has been considered in some court cases to be positive, that it confirmed the existence of rights not otherwise listed but still protected. The right to privacy, for example, while not otherwise listed (although strongly implied in the First, Third, Fourth, and Fifth Amendments) has enjoyed such decisions under the protections of the Ninth Amendment as Griswold v. Connecticut (see also Privacy).

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petronius (1000+ posts)       Sat Feb-02-08 02:25 PM
Response to Original message
 
5. It's saying that the Constitution is not an exhaustive list of all the rights that we have. In other words, just because something isn't mentioned in the C doesn't mean it isn't a right...

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originalpckelly (1000+ posts)       Sat Feb-02-08 02:46 PM
Response to Reply #5
 
9. Not just that, if you look at the various amendments, most of them talk about the government...not being able to do something: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It doesn't say we have the right of free speech, it says the Congress may not pass a law outlawing free speech.

"A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed."

It doesn't say we can keep and bear arms, it says the government may not keep us from doing that.

"No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

It doesn't say we have the right to a house without soldiers, it says the government may not house soldiers in our dwellings outside of war or without a law describing it in war.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It does partly say we have the right, but once again, we see that it is really about government action being prohibited.

This goes on and on for most of the amendments. The Bill of Rights prohibits certain powers, it does not extend rights.

It is because of the structure of this bill that the Federalists feared the Congress would assume more powers because a lack of prohibition of a power implies the power is given.

Well, as circumstances change, new powers present themselves, so it's nearly impossible to forbid every unjust power a government may claim.

That's why the structure of the original part of the US Constitution allows only certain powers.

Quite frankly, the 9th amendment has been set aside, and the federal government has assumed a whole mess of powers that were not forbidden expressly in the US Constitution. Wiretapping is one, the government simply doesn't have the ability to wiretap, if it is not granted that power in the US Constitution, however, FDR and earlier Presidents assumed the power on themselves without regard to the US Constitution. It went unchallenged until the 1960s when a man who used a pay phone, which had been previously bugged, appealed his case. The decision, often referred to as the Katz case, allowed the federal government to wiretap, but only with a warrant.

However, the ability to wiretap isn't actually in the US Constitution, and if we were following the US Constitution, it would be necessary to amend it to allow that power. Until that time, every wiretap is technically unconstitutional.

And on and on it goes.

Listening to the primitives trying to understand the Constitution is like listening to Pedro Picasso explain economics or the media; it gives one a roaring headache.
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Offline Carl

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Re: primitives having yet another constitutional misunderstanding
« Reply #1 on: February 04, 2008, 05:02:00 PM »
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RoyGBiv  (1000+ posts)         Sat Feb-02-08 03:47 PM
Response to Reply #14
18. The "right" not to be controlled by your government ...
   
The people who wrote the Constitution were intellectuals who actually thought about things.

If you begin with the notion that rights are inalienable, granted by a creator, nature, whatever, i.e. not subject to human interference, then you have a bit of a problem with something like gun ownership. The theory of a inalienable right dictates that an individual has it regardless of any other factors, e.g. the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. To keep and bear arms might be construed by some to imply that one has a right to have a gun even if one cannot afford to purchase one, does not have the knowledge to build one of their own, etc. But, the second amendment makes clear that the right of gun ownership may not be infringed by a government. Other factors could in fact prevent a person from owning a gun, to wit, his or her inability to purchase, build, etc. one.


Funny that not a one of them seems to think anything similar to this when it comes to health care or housing. :whatever: