perhaps you would change your mind if a court found that the government doesn’t have the right to forbid a company from regulating what goes on in your bedroom. that is, after all, an example of finding more liberty in the constitution.
Come now, Bricker, could we at least deal in good faith? The purpose of the Constitution is to do what the Preamble says. The Constitution itself is the specific, practical steps to reach that purpose. Therefore, the Constitution is the means of giving the Government specific areas of responsibility and the ability to govern those to reach the purposes outlined in the Preamble. IMHO, laws banning the sale of sex toys or outlawing consensual private relations or even forbidding making homebrewed beer aren’t supportable because they don’t advance the ideals of Liberty espoused by the Preamble.
This is an absurd mischaracterization, a practice you employ far too frequently. I believe that my notions should govern me in private matters. You’re free to do what you wish until you start trying to use the government to impose what you believe upon me.
Homebrew, can you point to any jurist or scholar who claims the Preamble is a source of substantive rights? Can you locate any opinion issued by any court at any point in our nation’s history striking down a law based on the prefatory text of the federal constitution?
Didn’t think so.
Where do you get the idea that the Preamble is the source of any actual, articulable rights? Apart from Justice Homebrew, or King Homebrew, can you point to any scholar, commentator, or legal authority for this position?
Actually, I think one might be able to make the argument that a true strict constructionist viewpoint might be a bit more objective. But, the problem in practice is that such a viewpoint allows so very little that the adherents themselves don’t really want to stick to this…There is simply too much incentive to “cheat” and find things in the Constitution when you really want to see them there. At least the “living document” proponents generally feel constrained when they do this by something, like the Constitution in the context of the evolving moors of society, of scientific thought, etc.
Just FTR, Bricker and I are indeed two different people. It just doesn’t always seem that way. 
That’s not consential. It is well understood that the government has a purpose of preventing one person from forcibly imposing their will on another.
Well, no offense, but this misses the other half of the problem, which is that judges get to decide what a right is.
Which is fine, I am sure you would agree, when the right is to be free from government interference in your sex life.
The problem comes in when the judge decides that the right is to be free from having gay folks around, or Muslims, or Japanese. And imposes that right on all of us.
Not in the Constitution, you say? It is now - the judge said so. So what do we do - appeal to the majority? No good - rights cannot be overruled by the majority. Amend the Constitution? We have already established that it doesn’t matter what the Constitution says, only what the judge wants it to say.
I don’t see this.
How can a theory that proposes that the Constitution says anything or nothing, depending on the predelictions of the justices, be as objective as one that says the Constitution says what it says?
Certainly any interpretation of a document is going to be at least partly subjective. And there is always a gray area between interpretation, and treating the Constitution as a Rorschach blot.
But ISTM that once you start talking about emanations and penumbrae, and defining as dogma things that are clearly new rights, you have gone beyond partial subjectivity into the void. And (IMO) directly violating the Ninth and Tenth Amendments whose design it is to set down the way that new rights are established. And it shouldnt be by some federal judge saying to himself, “The Constitution mandates whatever sounds like a good idea to me. And there ain’t shit anyone can do about it, because the Constitution says whatever I say it says.”
Many groups in America are being tempted. Earlier decisions, particularly Roe v. Wade, have shown them the power they can have, and the splendid changes they can force, if they will give up the idea that there are any limits on judicial power.
All the kingdoms of the world, and all their splendor. All this for you, if you bow down and submit.
But you only get to decide once. After that, it is all decided for you. And you get to live with it, if you can.
Regards,
Shodan
i think at this point, it is important to note that it was arguably the most liberal court in the history of the country that decided in the hirabayashi and korematsu cases to uphold the internment of japanese-americans.
Is there a federal constitutional right, or guaranteed freedom, to enter into contracts? In other words, was Lochner wrong?
Neither the Preamble nor the Constitution are the source of our rights. The Constitution provides for the rules that the government is to follow to secure the blessing of liberty etc. I think the original intent and strict constructionalists arguments are evidence that Hamilton was correct when he warned that listing the Bill of Rights would be construed to deny and disparage the existence of more rights. Even the IX Amendment does seem to be enough protection against the Authoritarian leanings of the Strict Constructionalist. The founders of this country and I believe in Natural Rights. There is no need for the Constitution to grant us rights because they are ours in full. We only allow governments limited say in certain areas as described by the U.S. and state Constitutions.
I also find it rather strange that you two rely decry “judicial activism” so much when you consider that Common Law, the foundation of so much of our daily legal life, is to a large extent based on precedents decided by judges.
I doubt such an interment would pass muster now. The Government has paid redress and apologized for the interments and it is generally considered one of the more egregious violations of Civil Liberties of the time.
Oh, fer gosh sakes.
It may well be true that we, as humans, have a natural right to freedom of the press, but if Congress were to pass a law forbidding criticism of the Senate Majority Leader, I assure you that the law would be struck down by a court decision whose rationale was drawn from the text of the First Amendment, not from a commentary on Natural Law and the rights of all free-born and freedom loving beings.
Now, my question to you is: can you point to any scrap of authority that uses the Preamble in the same way as the First Amendment was used in my example?
- Rick
The text of the Constitution without reference to the First Amendment would be sufficient to overrule the law. Nowhere in the Constitution is the Government given the power to limit speech in such a way. But you’re asking me to do the impossible. The reality we exist in has the Bill of Rights and the other Amendments, therefore there is no need to argue from Natural Law in most cases. However I think Substantive Due Process has developed through case law as an acknowledgement of Natural Law. The Amendments themselves are specific instances of what the Founders considered Natural Laws. I’m glad they are listed and specially protected. However, it is fair to note, like Hamilton, that by enumerating them, some people, most notably the strict constructionalists, will deny the existence of others.
Lochner was both right and wrong. It was right in the idea of Due Process but wrong in considering the Labor Laws of New York to be Unconstitutional. I agree with much of what Justice Souter has had to say about Lochner.
strict constructionists also read the first several articles that enumerate what the federal government can do, and anything outside that is unconstitutional.
i think if we hadn’t enumerated the bill of rights and the amendments that followed, we wouldn’t have been able to find fault in the internment of the japanese, or freedom of speech in flag burning, and certainly not a way to strike down lawerence.
certainly, some rights that belong in the constitution are not there. but reading other “rights” into it tends to remove as many (or more) civil liberties as it creates. i think if you study the history of the supreme court, you can’t help but concede that fact.
I’m going to jump to Homebrew’s defense here, and then ask for clarification later:
Firstly, those who jumped all over you for this post are wrong, and are ignoring that you were simpling responding to my direct question about what you thought the purpose of the constitution was. And quoting the preamble is a very reasonable response, as it purports to give the reason for the constution’s enactment. OK so far…
But… what does it mean an operative sense? How do you, Homebrew, think the constitution should be used? In particular, how should the text of the constitution be used by judges in making their rulings?
But the Natural Law of Man has always permitted free men to form agreements with each other. The freedom to contract is implicit in the right of free people to associate with each other under terms and conditions that they freely accept amongst themselves, with no government interference.
So how can you possibly justify a minimum wage law? It is clearly unconstitutional. If two free and willing parties wish to contract with each other, what right has the government to mandate that one pays the other any particular minimum wage at all?
Coersion. Employer and employee are not equals, free of coersion. One of the roles of government is “promote the general welfare”. Minimum wage laws promote the general welfare. Government is given the authority to regulate commerce, which includes wages and working conditions.
In yet another thread, I keep answering your questions but you continue to ignore mine. How about you answer this:
Are there any limits to the ability of the majority to oppress other than those specifically enumerated in the various amendments? What is the purpose of the Ninth?
'preciate the defense, btw.
I thought my subsequent posts addressed that
The purpose of the Constitution is to do what the Preamble says. The Constitution itself is the specific, practical steps to reach that purpose. Therefore, the Constitution is the means of giving the Government specific areas of responsibility and the ability to govern those to reach the purposes outlined in the Preamble.
Judges should determine whether a challenged law actually addresses one of the areas that the people have given the Government authority to legislate. If not then they must be overturned. At the same time, Judges should evaluate whether the law, even if relevant to a proper government duty, imposes undue violation of the “blessings of liberty.”