Actually, I think you do Dewey and Bricker a disservice here. They simply don’t mean by self-governance what you mean. They mean that democratic majorities should have absolute authority, excepting with respect to items those selfsame democratic majorities have decided to rule out ahead of time in the form of constitutional protections. I, like you, have always thought that the concept of self-governance necessarily began with the individual, and only conferred power to democratic majorities in a subsidiary fashion, but after long discussions with Dewey on this matter I have come to conclude that these guys turn that relationship on its head. I have yet to understand the underlying justification for that, but there it is.
I am very much a layman when it comes to the esoterica that is our legal system. For however little its worth though, now that I have seen some of the reasoning behind various court decisions vis a vis rights and all that, since some of my own attitudes and understandings have been stated by those that dont share them in a way that I feel misrepresents/misunderstands the underlying reasoning (at least from my point of view) .
It seems a common theme in this thread that the Bill of Rights establishes or enumerates (some of) the rights of the people of the US. But it has always been my understanding, which holds true still as I read it now, that the BoR doesnt so much grant or spell out rights of the people as it does the limits to the govts authority.
For one small example, there is no phrase saying “the people shall have the right of peaceful assembly”, while there is a phrase that says “Congress shall make no law… abridging the freedom of speech… or the right of the people peaceably to assemble”.
To me, a layman, it seems clear that the constitution itself is refering to rights and freedoms that allready exist; pulled from the ether, as it were.
Im just not really sure why the topic seems to revolve around the people having/being granted/claiming rights; the issue seems to me to be not so much a question of the rights of the people, but more the rights of the govt(s) to legislate on particular matters. Certainly up to the 10th amendment, there is no enumeration of the rights of the people, but an enumeration of the limits of the powers of Congress.
Is it really that the people “Have no ‘right’ without a corresponding legal remedy”, or is it that congress “Has no ‘right’ without a corresponding delegated power”?
For instance, as used as an example elsewhere in the thread, when someone says “I have the right to smoke pot”; this isnt, to me, the attempt to create something that isnt there; its questioning/declaring that Congress doesnt appear to have the right to regulate it. Either the people or Congress are creating rights for themselves that are not enumerated. Scanning the constitution, its really just not clear by what powers such a law is enacted at the federal level.
The point being, it seems that many in this thread are concerned with the people creating rights out of the ether, when the same stance and arguments can be made that Congress not create powers for itself out of the ether either. A sincere question; how can it be the case that the people need to establish or vote for a particular ‘right’, rather than Congress need establish that legislation it enacts falls under its enumerated powers?
I don’t find it all that difficult to draw the line at what should or shouldn’t be a moral right. A simple solution, if it doesn’t hurt another, you have a right to do it, unless the law states otherwise. I probably do a thousand different activities on a daily basis that are not formally protected, but I certainly still feel I have the right to perform them. Do we really have to formalize the fact that I have the right to stand at a urinal, brush my teeth, put on my clothes, water my plants, etc?
I don’t see the Bill of Rights as establishing rights as much as enumerating those rights that they felt need special protection.
Do those of you who keep arguing the “states rights” viewpoint truly believe we start out with zero rights, and get them as they are given to us by the majorities in our respective states? How do you even get out of bed in the morning, assuming your state hasn’t given you the right to do so?
It wasn’t a wisecrack. It was my description of some of the (to me) absurd lengths the Supreme Court has gone to interpret away things clearly present in the Constitution that they didn’t like.
I’m sorry if I offended you. I find the legal reasoning in some federal court decisions to be ridiculous. So ridiculous, in fact, that I feel my characterization of saying “black is white” is not a wisecrack but clinically accurate.
There is, however, apparently something in the world that can find a right to abortion in the text of a document that never addresses the issue. There is also something in the world that can allow guns to be outlawed in states of a union whose Constitution states “the right of the people to keep and bear arms shall not be infringed”. I heard argument from a lower court that said the interstate commerce clause meant that states could outlaw guns near schools. And I have heard considerable argument on the SDMB that “race” in the Constitution means “gender”.
It is disingenous to argue that the Supreme Court limits itself to the text of the document. They don’t. Unless you can point to where the words “privacy”, “abortion”, or “penumbra” appear in the text.
And there we disagree.
Unless the justices can point to where the Constitution addresses the issue - whatever it might be - and identify in some straightforward manner how exactly the text gives them the duty of addressing it - they are not fulfilling their duty. Where the Constitution is silent, so ought the justices to be. Because that is where the states and the people should speak.
And if they start saying that there is some right to gay marriage in a Constitution that does not address the issue even tangentially, or that the right to keep and bear arms isn’t really present, or abortion is something the Constitution gives them the right to control, then they are doing (IMO) exactly what I object to them doing - making shit up.
It doesn’t matter if you call it recognizing a right that has existed since the earth formed a crust, or making a new right up. Whatever you call it, it is not the duty of nine old nags in funny outfits. It is the duty and the right of the states, and the people. Because that is what the text of the Constitution says.
No, the government - including the Supreme Court - starts out with zero rights. The only rights the government has are those clearly given them under the Constitution. Nothing else, unless and until the Constitution is amended.
In every instance - even instances where a minority feels very, very strongly about an issue - the right to decide something that is not clearly delegated to the federal government by the Constitution lies solely with the states and the people.
So your idea of waiting for permission to get out of bed in the morning is mistaken. You have the right to do anything, and the federal government has no say in it - with the clearly defined exceptions listed in the Constitution.
When there is a dispute - I want to marry my boyfriend, I want to have an abortion, I want to do something or not do something that might affect my rights under the Constitution - the job of the Supreme Courts is to make a preliminary decision. “Is this covered by the text of the Constitution?”
If it is, go ahead, and the justices apply their considerable intelligence to how it must be resolved. If it is not, they (should, IMO) refuse to address the case, and throw it back to the states, and the people. Go lobby your state Congressman, go start a petition for a referendum, go start assembling a Constitutional convention. But the Supreme Court has nothing to do with the topic - even if it is a really, really good idea.
That is what seems so hard for people to understand. It is possible to want to do something so badly that you are willing to do it in the wrong way. Getting the Supreme Court to impose what you want by fiat is a violation of the concept of limited government that lies at the heart of the Constitution. The feds ought not to be the first thing you think of when you want to bring about social change.
But if it is not an issue addressed by the Constitution, and you cannot convince the states and the people of your case, you are shit out of luck. Yes, I know you are completely convinced that your idea is the greatest thing since sliced bread. But maybe if you can’t get the majority to agree, it is not so great.
The Constitution doesn’t give rights to people. They already either have them (if natural law proponents like Jefferson are correct) or get new ones automatically. What the Constitution does is impose limits on the federal government’s power to mess with those rights. And, set up a process by which the new rights are recognized or created. And the Supreme Court is not or should not (IMO) be involved in that.
Regards,
Shodan
You know, there are elements of your final paragraphs, Shodan, with which I wholeheartedly agree.
But, my friend, there is ground in the Constitution for some of the things that you seem to find outrageous – the Ninth and Fourteenth Amendments. They state explictly that (a) there are rights that are quite real and protected that are not specifically listed off in the text, and (b) no state has the right to infringe on any protected rights, save under certain procedural safeguards that do so across the board in an effort to protect the rights of all – i.e., time, place, and manner regulations.
The Founding Fathers did not fight the Revolution to replace one tyrant with another, be it the Almighty Legislature or the Almighty Court System – it was to protect freedom – the cause of liberty – from any and all tyranny. And it’s precisely that sort of well-intentioned tyranny that is at issue here. There is no question that wearing a seatbelt while driving or riding in a moving motor vehicle is generally a good idea, ceteris paribus – but the idea that it should be a criminal offense not to do so is, quite bluntly, absurd. It’s the equivalent of putting armed security guards in every public washroom to ensure you wash your hands after using the toilet facilities.
And however you choose to construe various rulings, the issues involved are what the Justices spell them out to be. I.e., I’ve seen fulminations that “Lawrence established a legal right to sodomy,” which quite frankly will fertilize fields quite well. What it did is to say that there is a constitutionally guaranteed right to associate with whomever, and do whatever, one chooses in private, and that the states have no right to invade that sphere of privacy because what one may choose to do will be distasteful. Put the “equal protection” standard of the Fourteenth alongside the “secure in one’s person and home” provision of the Fourth, and you have a clearcut assertion that warrantless intrusions, or warrant-based intrusions founded on any discriminatory basis, are suddenly completely illegal.
I don’t think anybody is claiming that there’s “a constitutional right to gay marriage” – what they’re claiming is that there’s a right to marriage, pure and simple, and to permit some persons to marry the person of their choice while prohibiting others from doing so violates equal protection standards.
But you know, strict constructionism would be fun – because an awful lot of laws are founded in broad construction. It might just create Libertopia. See Hugo Black on textualist absolutism.
That’s my take on it, too.
Taking your first quote into account, it would seem to me that gays can get married freely, until it is made explicitly illegal to do so in a given state. So, why weren’t gays allowed to marry back in the day where hardly any states had laws on their books banning it (which wasn’t that long ago), and why aren’t they allowed to marry in states that still do not have such laws? If you start out with all rights, and have them taken away piecemeal at the state level, then we should have a lot of married homosexuals today. We don’t.
I guess I’m asking where this “dispute” comes from. Unless specifically stated otherwise, the person who wants to marry their boyfriend or have an abortion, should never have been prevented from doing so until such time as states had specifically outlawed them.
Obviously, even if the states outlaw something, the Constitution can override it, which is what I’ve always thought was the main purpose of the Bill of Rights, but I’m curious as to why gays weren’t allowed to get married in the past if this is the way it’s supposed to work.
I think it’s simplistic to say that people think these should be rights just because they really, really want to do them. IMO the suppression of all these acts can be objected to on different grounds. The comments that follow are just my opinion and when I speak of a ‘right’, I’m speaking of how I think things ought to be, and not how they necessarily actually are.
Pot smoking is a right that was taken away fairly recently in history, based on a perceived danger. There are many who believe the danger was exaggerated and that this right should not have been abrogated.
While one can’t make the same statement about same sex marriage, those advocating it have some legitimate gripes, in my opinion. I can’t fathom the denial of hospital visitation rights, for example. Nor should gay couples be denied the right to bequeath property to one another without having the wills contested, if the wills are in good order.
Expressing a political opinion is not always appropriate, but IMO it depends on how you do it. We are not supposed to be a feudal society, and those who are not property owners and employers have a right to political expression and action. Employers do have the right to restrict such activity, within their premises. But there should be give and take on both sides. The way I look at it, employees should not march around the office with campaign signs. But employers should not tell their employees what stickers they can have on their cars, which are their property. The right of employees to political expression should not be compromised unless the employer can demonstrate that such expression is directly harmful to the enterprise.