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Let's look at everything we'd be giving up if we went back to the first ten amendments.
[<SNIP!>]
2. Giving freed slaves rights of citizenship (14th amendment)
Actually that is only part of what the 14th Amendment did/does. Aside from some fundamental administrivia, there are four key clauses in the 14th. The first two -- reaffirming US citizenship for all persons (not just slaves) who are born or naturalized in the United States, and prohibiting the states from abridging anyone's citizenship rights -- don't get much work anymore. The primary exception seems to be the vocal dissension and teeth-gnashing over the fact that children of illegal immigrants, if they are born in the United States, are automatically United States citizens.
The third and fourth -- due process and equal protection -- clauses, are being extensively exercised, on multiple fronts, even as we speak. Both clauses deliberately use the word 'person' rather than 'citizen'. Therefore they apply to all human beings who are within the boundaries of the United States, regardless of their legal or citizenship status.
One due-process "conflict zone" has to do with the application of the Patriot Act to people apprehended within the boundaries of the United States, whether or not they are US citizens. One equal-protection "conflict zone" is gay marriage.
IMO, because of its deliberate and intentional impact on, and interaction with, the Bill of Rights, the 14th Amendment should probably be considered as part of the Bill of Rights.
Regards as always,
-- Nighteyes
Last edited by Nighteyes; 03-24-2014 at 12:21 PM..
The Constitution spells out on how the government is to function, these are not gray areas, they are pretty specific.
The Bill of Rights, if you read the preamble to the Bill of Rights it gives the meaning behind these rights
Congress of the United State begun and held at the City of New York the fourth of March, one thousand seven hundred and eighty nine. THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
I recently wrote elsewhere of the massive decay in our moral and base foundation principles, and the Constitution assuredly defined and was supposed to represent America's guiding principles. However, our Constitution ceased to function as designed and intended long ago.
We, the people, have allowed our Imperial Judiciary (Supreme Court) to usurp the Constitution's Amendment power that the Constitution entrusted to We, the people.
For example, the issue of abortion was decided by Supreme Court in Roe v. Wade, not by America following the Constitution's Amendment process. Rather than follow the Constitution, We, the people permitted nine individuals to act as God and direct America on the most sacred of issues; i.e., life itself. If our Constitution still functioned as designed, then a Constitutional amendment would assuredly have been framed that would have failed to be ratified.
Our values are like leaves on a tree that shift with the winds, but principles are the deep and binding roots that steel us against all forces and that define who we are as individuals and who we are as a society. As part of my "lessons in life", I was taught me that you never, ever compromise, much less abandon at any time, your principles. For if you do, a strong wind will eventually come along and blow you away, and the worst thing is that you will probably never understand why.
I recently wrote elsewhere of the massive decay in our moral and base foundation principles, and the Constitution assuredly defined and was supposed to represent America's guiding principles. However, our Constitution ceased to function as designed and intended long ago.
We, the people, have allowed our Imperial Judiciary (Supreme Court) to usurp the Constitution's Amendment power that the Constitution entrusted to We, the people.
For example, the issue of abortion was decided by Supreme Court in Roe v. Wade, not by America following the Constitution's Amendment process. Rather than follow the Constitution, We, the people permitted nine individuals to act as God and direct America on the most sacred of issues; i.e., life itself. If our Constitution still functioned as designed, then a Constitutional amendment would assuredly have been framed that would have failed to be ratified.
Our values are like leaves on a tree that shift with the winds, but principles are the deep and binding roots that steel us against all forces and that define who we are as individuals and who we are as a society. As part of my "lessons in life", I was taught me that you never, ever compromise, much less abandon at any time, your principles. For if you do, a strong wind will eventually come along and blow you away, and the worst thing is that you will probably never understand why.
The Constitution has only lasted since 1789 because the Supreme Court has had the ability to interpret it.
Take a look at the process for ratification of Constitutional amendments closely. It requires not only an affirmative vote by Congress, but 3/4's of the states have to agree as well. That process guarantees that any textual change to the Constitution will be difficult, if not impossible. Some will say "well that's a good thing". I say its not necessarily a good thing because in 225 years a country changes.
The Supreme Court didn't really usurp anything. They stepped into a void that was either created accidentally or intentionally by the framers of the Constitution. Actually, if people were really opposed to the Supreme Court assuming this power, you've just stated the very solution for fixing it. Simply get a Constitutional amendment passed and ratified that takes away the power of the Supreme Court to interpret the Constitution. Beware though, you'll have to spell out exactly what happens when questions about what the document means arise.
I won't hold my breath for this to happen. A majority of Americans don't want Roe v. Wade overturned. A large majority of our country is quite happy with the Supreme Court interpreting the Constitution. The Judicial Branch of government gets higher ratings from the American people than either the Legislative or Executive Branches do.
1. There was no one "original intent" by the framers of the Constitution. There was a convention where over seventy (count em) delegates participated and arrived at a product that was the result of a helluva lot of compromising and negotiating. So, when people talk about "following the original intent of the Constitution" my reply is "who's intent do you mean".
Are you arguing that there were significant disputes as to what the foundational principles were?
There weren't that many political philosophies to chose from and the founders / framers were very clear declaring that they embraced the Lockean social compact, and Locke's and Sidney's rights theory and their alignment with the English Whigs. Combined with their rejection of Hobbes, Bodin and Filmer allows us to make some quite definitive statements about what the Constitution's political model is and that foundation allows us to dismiss out of hand, MODERN political models / tenets that are incompatible with the foundational principles of the Constitution (e.g., 20th Century communitarianism / 2nd generation / positive rights).
Quote:
Originally Posted by markg91359
2. The U.S. Supreme Court interprets the Constitution and has done so since Marbury v. Madison was decided in 1803. That's exactly 211 years ago.
True, but people forget that in Marbury the Court laid the ground rules for them to "open" the Constitution. It isn't putty in the hands of the Judiciary to make the law what it wants it to be and in Marbury, SCOTUS makes clear that the Constitution is not a living document that shape shifts over time. Marbury is clear that the Constitution is the inviolate rules for all government including SCOTUS, as it says:
"it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!"
That would lead me to believe that there can be "unconstitutional" SCOTUS decisions . . .
Quote:
Originally Posted by markg91359
Finally, stop this nonsense that there was "one original intent" to the Constitution. There simply wasn't.
At a minimum, whenever one has a doubt about the extent of legitimate federal power, one should apply the doctrine of conferred powers and retained rights.
We don't possess our rights because of the enumeration of a couple of them in a bill of rights . . . We possess our rights because no power was ever granted to the federal government to act against them.
There wasn't any disagreement then about what constituted a legitimate government, nor was there any disagreement over what the nature or origin of our rights was.
I find today, those who are arguing that there wasn't any "original intent" or that in our modern enlightenment today, no firm guidance can be garnered from the document, are all working towards a political model that empowers government beyond what's enumerated and dilutes and extinguishes the negative rights of the citizen.
The Constitution has only lasted since 1789 because the Supreme Court has had the ability to interpret it.
Take a look at the process for ratification of Constitutional amendments closely. It requires not only an affirmative vote by Congress, but 3/4's of the states have to agree as well. That process guarantees that any textual change to the Constitution will be difficult, if not impossible. Some will say "well that's a good thing". I say its not necessarily a good thing because in 225 years a country changes.
The Supreme Court didn't really usurp anything. They stepped into a void that was either created accidentally or intentionally by the framers of the Constitution. Actually, if people were really opposed to the Supreme Court assuming this power, you've just stated the very solution for fixing it. Simply get a Constitutional amendment passed and ratified that takes away the power of the Supreme Court to interpret the Constitution. Beware though, you'll have to spell out exactly what happens when questions about what the document means arise.
I won't hold my breath for this to happen. A majority of Americans don't want Roe v. Wade overturned. A large majority of our country is quite happy with the Supreme Court interpreting the Constitution. The Judicial Branch of government gets higher ratings from the American people than either the Legislative or Executive Branches do.
If you were to assign yourself powers that were granted not to you but to others, you would have usurped those powers. In the issue that I highlighted, those powers at were assigned to We, the people, not Supreme Court Justices. The Supreme Court had no legal authority whatsoever to assign themselves that task.
A Constitutional Amendment was the vehicle the founding fathers designed and chose to alter the Constitution, which included all issues not spelled out including adding, subtracting or clarification. That power was never assigned to the Supreme Court; they blatantly usurped that power from We, the people.
Moreover, the Constitution is principle based. It was not meant to be easily changed. The extensive Amendment process reflects that truth.
If you were to assign yourself powers that were granted not to you but to others, you would have usurped those powers. In the issue that I highlighted, those powers at were assigned to We, the people, not Supreme Court Justices. The Supreme Court had no legal authority whatsoever to assign themselves that task.
A Constitutional Amendment was the vehicle the founding fathers designed and chose to alter the Constitution, which included all issues not spelled out including adding, subtracting or clarification. That power was never assigned to the Supreme Court; they blatantly usurped that power from We, the people.
Moreover, the Constitution is principle based. It was not meant to be easily changed. The extensive Amendment process reflects that truth.
I disagree with you and you seem to miss the point.
I would say that states never had the right to prohibit an abortion that occurred within the first trimester of a pregnancy. The due process clause of the 14th amendment talks about a "person" not being deprived of "life" without due process of law.
I don't believe a fetus three months of age or less is the same thing as a living breathing person. Until it is capable of surviving on its own, it doesn't meet the definition of "person" within the meaning of the Constitution. What the Supreme Court did in Roe v. Wade (by a vote of 8-1, I believe) was simply acknowledge this fact. The court relied on medical science for a definition of life.
States may have had laws against abortion before 1973. Those laws were not constitutional than either. Its simply that the matter had never been brought before the US. Supreme Court.
The case was not a situation of the U.S. Supreme Court usurping power. The power was there an had not been exercised.
It is you, who can seek to have the Constitution amended if you don't agree with it.
[<Snippety-snippety-snippety-snip!> A large majority of our country is quite happy with the Supreme Court interpreting the Constitution.
DUH....!
Ahem... that is the role of the Supreme Court, as defined/determined by the Constitution!
Frankly I don't know where you're trying to go with this, short of re-writing the Constitution. And, if such is your goal (not saying it is), good luck...
Ahem... that is the role of the Supreme Court, as defined/determined by the Constitution!
Frankly I don't know where you're trying to go with this, short of re-writing the Constitution. And, if such is your goal (not saying it is), good luck...
-- Nighteyes
Where in the Constitution is it stated that the Supreme Court is the arbitrator of the Constitution?
Where in the Constitution is it stated that the Supreme Court has the power of judicial review?
(The 10th Amendment is part of the Constitution.)
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