No. I think he likes to be provocative, so I suspect he chose those words on purpose:
What do you mean it’s supposed to hinder progress??? Progress = good, right?
You mean like “militia”? Or maybe the text of the entire freakin’ Ninth Amendment?
I’m glad you’re finally admitting that a doctrinaire originalism or textualism is intellectually bankrupt.
I’m admitting no such thing. I’m all for looking to what “militia” meant then; it doesn’t hurt my cause at all. And if you can make a definitive statement about an unambiguious contemporary meaning of the Ninth Amendment, I’m all ears.
Fair enough.
As for your challenge, I believe it can be done, although not precisely as you were challenging me to produce.
IMO, it would be roughly this (cast in modern language but in the mouth of the First Congress):
“This constitution has undertaken to guarantee the fundamenal Rights of Man against infringement from the new national government. We have enumerated a list of such guaranteed rights. That list is not to be construed as all-extensive or complete, and any fundamental rights we neglected to enumerate should not be disparaged by that fact.”
Again IMO, such fundamental rights are identified by Stewart’s Dictum: when the Court is faced with a case where a governmental body is attempting to deprive a citizen of an unenumerated fundamental right, it is at that time that the court will discern that there is a fundamental right omitted from the enumerated list which is being abrogated. James Wilson and Roger Sherman would certainly have agreed with this view; so, I think, would Madison.
…
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
“Numerous and indefinite?”
THAT was Madison. He seemed quite solid with the idea that while the feds have limited powers, the states have plenary power. Why do you think Madison would be OK with limiting states’ power based on undefined rights, TBD at a later date?
It is rather a stretch, I’m afraid. The Founders were very careful to ensure that power rested where power belonged, in the hands of businessmen and gentlemen farmers, men of property and substance. This wild egalitarianism would chill their custard, to be sure, smacks of that insane radical Paine.
Why, Good Heavens, man, next thing you know, women would be voting!
As a personal opinion I find that stance odd and perhaps downright unworkable.
Some “rights” should be stipulated at the federal/constitutional level. Indeed for all that your quote cites that the states should be concerned with the ordinary lives of its citizens we have the Bill of Rights enshrined in the Constitution which seems to fly in the face of that notion. What about the 13th Amendment? Would Madison have maintained that was really a matter for the individual states?
Fast forward to today. Imagine abortion rights (or lack of) being a solely state-by-state issue. You’d end up with a patchwork mess. If it was illegal in (say) Indiana and a woman drove to Illinois to get a legal abortion could she be prosecuted upon return to Indiana? What if she lived in Ohio and passed through Indiana to get an abortion in Illinois and somehow Indiana police were aware of that. Could they stop her?
To my mind some overarching rights simply must be handled above the state level or the mess that would follow does not bear thinking about.
Fine. Then amend the Constitution, if it’s so desirable. You can’t add to the powers of the federal government, or create a new constitutional right, merely by saying, “Oh, look at the unworkable mess if we don’t!”
You do know there was life on Earth (and in the US!) prior to January 22, 1973, don’t you? :dubious:
I strongly disagree. The framers were radically egalitarian. The ratification of the Constitution was the most egalitarian act in the history of mankind. In each state, more people were enfranchised to vote for the Constitution than any time in human history. Every single state expanded the class of voters allowed to the state conventions–eliminating property requirements and sometimes allowing free blacks to vote.
Many times the constitutional convention included or discluded provisions because they knew they had to in order to get the document ratified by “we the people.” The silly notion that it was a setup to preserve the power of the landed class, propagated almost single-handedly by Charles Black, is simply not consistent with the actual history.
This is not entirely accurate. The doctrine of necessity is exactly what you describe–the judicial recognition that things will be an unworkable mess unless we allow a certain federal power.
The doctrine of necessity has been used to uphold many powers of the federal government, including most of the foreign affairs power, the ability to exclude illegal immigrants and control immigration generally, the ability to negotiate executive agreements like armistices, and number of other powers. And the doctrine has been around since the founding, so you have to abandon originalism in order to reject it.
Of course, this is quite aside from the necessary and proper clause, which also provides unenumerated power to the federal government (like making a national bank).
I was asking you to comment on how we get the Bill of Rights if the prevailing sense was such things were to be the purview of the states.
Huh? It was just a convenient example. Not sure what your point is.
And I was born in 1967 so I know life goes back to at least then. 
For their time and place, to be sure. And just as you say, the more radical notions were watered down in order to pass muster, but I have to wonder why you seem to imply that it couldn’t have been sold to “we, the people”. Why not? What would motivate people to reject empowerment? It couldn’t be sold to the Constitutional “committee”, I don’t recall any plans for a popular referendum to ratify.
As to Mr Black, I can’t really speak to that, perhaps my opinion is but a pale reflection of his, but I have read more than one book of history, perhaps even three. Four, if Cliff Notes are included.
I don’t regard the selfishness of the framers as some sort of dreadful realization, they were human, that’s all. But it seems obvious to me that the right of the vote is so entirely fundamental to a just Republic that anything that hinders the excercise of that right is un-American, whether it is Constitutional or no. A poll tax degrades the spirit and aspirations of America, if the Constitution permitted that, then it is the Constitution that is at fault. The radical egalitarian dream that is America is parent to the Constitution, not the other way round.
Did the Founders fail to measure up to that exalted standard? Yes, as we might have expected. That said, they did a nearly impossible task splendidly, I believe they exceeded themselves for the moment, the gravity of history made them wiser than they might otherwise have been. That people can do that is the sustaining glow of hope.
But, in light of this acceptance of human frailty, I reject the notion that the Constitution’s legitimacy depends on the very limited world view of the Founders, and therefore its “original” intent is due some dime-store sanctity. Wherever the Constitution fosters and nourishes liberty and equality, it is solidly American, where it hinders such progress, it is merely a revered obstacle. As is Mr Scalia.
I think you’ve misunderstood. I stated that many of the proposed ideas for the content of the Constitution were either added or not added based on what the framers thought would pass the popular vote.
There was not a direct referendum, but most states waived their normal voting restrictions, including property and race-based ones, in the voting to select delegates to the ratifying conventions. Similarly, most states exempted delegates from property-qualifcations even though they required them in their legislatures.
If the framers were attempting to “ensure that power rested where power belonged, in the hands of businessmen and gentlemen farmers, men of property and substance,” they did a pretty poor job of it. They did not create property-qualifications for the legislature, even though they existed in almost every state. Indeed, they went out of their way to prevent an aristocracy from forming by banning titles of nobility and creating age requirements for eligibility (to prevent popular sons from winning elections on name recognition alone).
Ummm…according to my notes here, President Madison died 34 years before the passage of the Fourteenth Amendment, much less before incorporation of the Bill of Rights to apply to the states was ever an issue.
May the Federal government regulate marriage-- decide that what some states recognize as a legal marriage is no marriage in Federal eyes? May the Federal government restrict anyone from moving to California without a Relocation Permit applied for and granted in compliance with C.F.R.? May the Federal government determine that “the right to be secure from … unreasonable search and seizure” does not apply to anyone suspected of aiding and abetting a person determined by the President to be an Enemy to Homeland Security – such as, perhaps, in a hypothetical future, his political opponents (Nixon had this worldview; it’s entirely plausable another president might as well)? Do any of these questions have the slightest thing to do with the powers of the individual states?
Either every possible right claimable by an individual as against the Federal government is already spelled out in the Constitution, or some are not. A strict Textualist would look at the Ninth and say that some clearly are not, because it says as much. An Originalist would look at the writings of the F.F. and determine that they held to a natural rights view and specifically identified that they had not – could not – enumerate all such rights.
Rights are not powers. Often they are antithetical. And the division of powers between state and Federal government has as much to do with the Ninth Amendment as the power to build post roads does.
I can think of several arguments for legal nationwide abortion, but this one is pretty silly. Does this sort of thing happen with other differing laws among the states?
If I drive to South Carolina to buy and discharge fireworks, do the intervening states try to stop me from that? If I go to Las Vegas for legal casino gambling, do Florida authorities arrest me at the Miami airport for attempting to circumvent Florida laws against casino gambling?
If this was done in any other thing it might give me pause, but a state would certainly have no authority to prevent you from travelling somewhere else to do what is legal there.
[QUOTE=jtgain]
Does this sort of thing happen with other differing laws among the states?/QUOTE]
There examples of this sort of thing occurring pursuant to the Mann Act.
The Mann Act is a federal law. I have never heard of anyone opposed to Roe v. Wade advocate a federal interstate ban on procuring abortions. Well, maybe some of the radicals, but no one seriously advocates this.
The Mann Act on a state level would be like Indiana having a law against transporting women to Illinois for nookie purposes and arresting people for driving in Gary. It would certainly be struck down as an interstate commerce violation…