Well, maybe you noticed that it mentions who holds powers not reserved to the feds. That’s why it mentions the people as well as the States.
The Tenth Amendment limits the power of the Federal government. Establishing new rights not already present in the Constitution is one of those powers. Ergo, the power to establish new rights is reserved to the States, or the people. Not the Supreme or the federal courts, which are part of the federal government.
Look, we have gone over this before. The Ninth Amendment makes it clear that the list of rights established by the Constitution is not necessarily exhaustive. The Tenth Amendment makes it clear how those new rights can be established -
[ol][li]By Constitutional amendment[/li][li]By the States[/li][li]By the people.[/ol]I don’t see any reference to “new rights may be pulled from the ass of the Supreme Court” anywhere in there. Maybe you do, but then again, we already know you are not a textualist. [/li]
Regards,
Shodan
But, as has been exhaustively explained to you, to little effect…this isn’t a matter of establishing new rights, but of defining precisely those which are already there. Personally, I am astounded that anyone might try to insist that one hasn’t the right to control one’s own body. Your insistence that the text of the Constitution clearly supports your personal preferences is based on little more than a presumption of superior understanding, which we are free to accept or discount accordingly.
Well, he’s wrong. That is based on my superior understanding, which you are free to accept or discount accordingly.
I question his reasoning: a refusal to disparage or deny something is very much akin to affirming it. If I say “You cannot park here between 5 and 8 am on Friday”, you would be entirely sensible to assume that you can park here at 9 am on Thursday.
Perhaps it’s clear to you what that comment added to the discussion. But now that you’ve set the tone in which your “contribution” here may be understood, let us try to proceed in a post-seventh-grade manner, shall we?
And yet that isn’t in the text, or even referred to there obliquely, is it? It wasn’t treated as there until Marbury, either. Your argument (which is actually a good one) that it’s implicit anyway is not supported in the text, and a principled application of textualism or originalism or whatever the hell you want to call it would have to conclude that Marbury was an arrogation of power, ipse dixit. That the other branches acquiesced, for whatever reasons, cannot alter that conclusion.
Mais certainment, monsieur. Perhaps you could explain that to Bricker, who is still wrapped around that axle? And then reconsider what I’ve said in light of your own complaint about my not reading what you’ve said?
Nope, all I’m guilty of is reading what you *did * say, applying textualism as it were. If you think clearly and express yourself clearly, you’ll be understood, don’t worry.
They can call it whatever they like, and 2. Their expressed definitions of the term are so vague and contradictory that it is not clear what they’d call it anyway, and 3. They might very well call it doing the Court’s job of interpreting the clear meaning of the Constitution.
It is disingenuous to suggest that I said anything of the sort. **Shodan ** asked what recourse a single state has if they don’t like a federal ruling. I answered him.
A tautology even if true and applicable. Which it ain’t.
No, it’s called “federalism”. Are you seriously arguing that federal law should not apply to a state that doesn’t want it to, that it would constitute “tyranny”? Did you *really * learn about the Civil War in school? :dubious: Look up “nullification” sometime; you might find that the concept was settled a helluva long time ago.
Nobody here is doing that - we don’t even have a working definition, and you aren’t offering one either.
Is that what you’re calling a state’s inability to nullify a federal law unilaterally? That it isn’t enough? Well, friend, yes, it is enough, if we’re one country, that is. You do think so, don’t you?
I think this is an incorrect reading of the Amendment (text below).
The Amendment on its own does nothing to limit the power of the federal government (which, of course, includes Congress as well as the federal courts). Rather, it says, ‘whatever the power of the federal government (as described by a) what the Constitution says that the federal government can do and b) what the Constitution says that the state governments cannot do), the states have what’s left over.’ So yes, the power to “establish new rights” is left up to the States or to the people (whatever that latter bit means in practice). But this says nothing about what rights and powers are and are not already described in the federal ambit.
Correctly: “If I say, ‘You are precluded from preventing people from parking here from 5 to 8 on Friday,’ you would be entirely sensible to assume that anyone is entitled to park there during that time.”
This is, of course, demonstrably false. As Shodan points out, the tug of war is over who gets to say what the rights of the parkers are. Shodan is asserting that the federal judiciary cannot arrogate to itself that right, because it is precluded from so doing by the Tenth Amendment, and the lack of a specific grant of that power to it.
And if your only argument against something is to assert your “superior understanding,” you virtually certainly manage to convince most readers you are wrong.
I concede the issue of “minimalism,” and the value of establishing clearcut rules of law applicable to other questions than the narrow one at issue in a single case. However, I thought we were trying to get at the issue of “activism” and were at one on its antithesis being “self-restraint.”
Otherwise, we’re reduced to the purely subjective, and annoying, “any decision which I happen to disagree with the results of” formulary.
Oh, and Shodan? The Tenth Amendment does not say one damn thing about rights. It deals with powers. Never mind that it is the last item in that collection of ten amendments passed and ratified at approximately the same time and collectively referred to as the “Bill of Rights” – it does not discuss rights in the slightest. Do you have the “right” to a second medical opinion? The Tenth Amendment is silent. The only way in which it interacts with that question is, the Constitution being silent on the issue of obtaining medical opinions, the states have the power to enact a statute giving or denying you that “right,” in the absence of a finding that your rights as a U.S. citizen guaranteed by the 14th Amendment are somehow abridged by the state statute.
The only other way it might be construed, is that you have the power to exercise what you claim as your “right,” in the absence of Federal or state statute denying you that power, under the grants of power to Congress, elsewhere in the Constitution, and the residuary power of the states guaranteed in the Tenth.
Kozlowski asserts that the the dissent is “a problematic reading because it reduces the Ninth Amendment to a practical nullity.”
and
Black rejects the argument that the recognition of human rights should be left to the elected branches of government rather than the judicial branch. Instead, he asserts that the judicial is the branch best suited to this type of law making. Rather than being guided simply by political expediency, the Court is in the position to reflect on the values and interests at stake. The courts have been shielded from political pressure as a way of freeing them from the exigencies of politics in favor of a position where they can rationally evaluate the interests of the parties and society as a whole.
and
William Blackstone: In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.
Can’t we all agree that a more robust interpretation of the privileges and immunities clause – one perfectly in keeping with the most reasonable reading of the constitutional text – would be a much more proper repository for the so-called ‘unenumerated’ rights at dispute in the debate about the Ninth Amendment?
Hehehe, don’t even get me started on the Fourteenth Amendment and how it’s been abused by the Supreme Court over the last 130 years. Yes, the Privileges and Immunities clause should mean something other than it is interpreted to mean, and by doing that, we’d avoid a chunk of the worry we’ve created for ourselves by attempting to define “due process.”
But, no, I can’t agree with you. The people who wrote and presented the Bill of Rights had a specific purpose in mind with the Ninth Amendment. Madison’s writings make pretty clear he was simply setting forth a rule of construction only. But, just as likely, there were some things that, if pressed to discuss and debate, the majority of the members of that first Congress would have agreed were within the “rights” of people that shouldn’t be trammeled by the federal government, but didn’t get specifically listed by the proponent of the resolution (Madison himself, IIRC). Madison and others in favor of the Bill wanted to be certain the anti-Federalists couldn’t object to the whole thing by stepping up and saying, “What about the right to beat my undisciplined child!? This here federal government could make a law preventing that,” followed by a rumbling of agreement and an occasional “hear! hear!”
Beyond that, it has no meaning. Within that meaning, it has the power to create endless mischief among people.
To which the counter-argument is simple: this elite group that is insulated from politics can thereby impose upon a country not in agreement with it by doing so trammels upon the very cornerstone of democracy and republicanism. While Congress may be more subject to political expediency, at least it is accountable to the people as a whole, which federal judges are not. More importantly, the insulation was not intended to allow them to make decisions expanding either federal power OR individual rights beyond what the Constitution plainly allows, but rather to allow them to make decisions in individual cases applying the clear law of the land which had results unpopular with the people.
[/quote=Hamlet]
William Blackstone: In all other cases it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded.
A right, with no remedy, is no right at all.
[/QUOTE]
Which is meaningless. What is being argued here is the appropriate remedy. No one’s position would create an absence of remedy, not your position, not Bricker’s. :rolleyes:
He is not asserting it says anything about rights. He is asserting that the federal government lacks the power to establish rights not explicitly created in the text of the Constitution itself. Such rights either already existed before the Constitution, or must be created either by Amendment, by state action, or by the people themselves.
Yup, and the power to determine what are and are not rights is exactly that - a power. And one reserved to the States, or the people.
This is meaningless. The power to establish new rights is what we are talking about, and that power is given expressly to the people. So it does indeed say what powers are in the federal ambit. And the power to create new rights isn’t there. It belongs to the states, or the people.
“It’s there, but it isn’t there.” “The Constitution doesn’t say what it says.” “The Ninth Amendment says that the Supreme Court can do what the Tenth Amendment says they can’t.” “‘People’ doesn’t mean ‘people’; it means ‘states’, except where it doesn’t.”
:shrugs:
IANAL. Sometimes I am glad of it; you guys seem to have to talk yourselves into some pretty complex knots.
I was going to bother with a relatively comprehensive dismissal of your last post, addressing each and everything you said, when it became rapidly clear it said nothing of real value, beyond a few salient points. Instead, I shall address those few points; the rest will remain on the floor with the rest of the bull shit, simply Piled Higher and Deeper.
Let’s start with “arrogate.” The meaning of this word is to claim or sieze without justification. In short, you take it unto yourself in the absence of something else granting it to you.
Chief Justice Marshall didn’t arrogate anything. As I’ve noted, and you’ve ignored, the power existed in the English courts, was inherently understood by the “framers” to be a part of the power of the courts being established by the Constitution, was being exercised by various state courts before 1803, in some cases without specific grants of the power by the respective state constitutions (sense a pattern here?), and was inherently a part of federal judicial power as established by the Judiciary Act and as practiced by the federal judiciary prior to 1803. In short, it already existed. All C.J. Marshall did was put it in words and call it what it was. You will note that, while some people predictably were upset by the declaration that the Supreme Court had this power, with the exception of one President saying, in effect, “screw you, and the horse…” no one counteracted his assertion in any way. In short, most everyone expected it, knew it was the logical outcome of what they had set up, and didn’t consider it a claim to a power to which there was no Constitutional justification.
In short, it wasn’t arrogated.
As to the rest of your post, depsite your clever attempts at bon mots, you avoid persistently the central issue: You can’t use the existence of a federal-level check on the Court to argue that efforts by members of the court to engage in “judicial activism” in such a way that it affects individual states shouldn’t be a worry.
Frankly, all you have to do is say in response that the same is true of abuses by “strict constructionalists.” Someone about 2 pages ago shoved that one at Bricker and he came pretty close to crying, “Uncle!”
Marshall’s reasoning in Marbury is actually fairly controversial. When I was at Georgetown, the professors there staged an event entitled “Rearguing Marbury v. Madison” which effectively exposed the many holes in Marshall’s argument.
No. What is being argued here is the issue of how you deal with the need to express a right that has not been previously expressed.
As an example, suppose tomorrow it becomes clear that a large portion of the country believes that individuals should have a right to refuse medical treatment. The Bird Flu is coming, the government wants to nip it in the bud with vaccines, the people aren’t convinced its a major issue, there are concerns about the safety of the vaccines. Ohio passes a law mandating vaccination of all people resident in the state. DSYoungEsq, objecting to this power exercise by the state, files suit to block an effort to vaccinate him, on the basis that this law violates the Fourteenth Amendment, specifically, by depriving him of “liberty” without “due process.” In support of this argument, he asserts that people have a “right to choose what happens to themselves medically,” a right he asserts can be reasonably inferred from the “right to choose,” the “right to privacy,” and other similar decided “rights” established by the courts. Polls, by the way, show that the American people are behind this assertion by a margin of at least 75% in favor to 15% against, with 10% picking their noses and watching reruns of “Ren and Stimpy.”
Now, the discussion here, to which the debate over the Ninth/Tenth Amendments has been addressed, is what is the appropriate remedy for expressing this new “right” as a valid constitutional right of the people? For a “judicial activist,” as Bricker and others with similar views would call them, the remedy would be to grant DSYoungEsq’s petition, in the process establishing by judicial opinion that the Fourteenth Amendment’s prohibition on state action includes a preclusion from interfering with the “right to choose what happens to oneself medically.” One can argue whether this would proceed from a logical examination of the law relevant to the issue, or from a desire to create a specific result, but that would be the approach. What the “anti-judicial activism” crowd would prefer is that the Congress, seeing the tenor of the people, passes a proposed Amendment, which then gets ratified by the appropriate number of States, saying that the States shall not make laws interfering with the right of individuals to designate how they shall be cared for medically.
There are flaws with both approaches, flaws that are being exposed through this thread. But it is remedy that is at issue, not right.
I think Scalia explained that quite well when he said: “…I have never claimed that originalism innoculates against willfulness [importing ones owns views and values into the law]; only that (unlike aspirationalism) it does not cater to it.”
