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September 8, 2006

The enumeration in the blog post, of certain topics, shall not be construed to deny or disparage others maintained by the commenters.

Justin Katz

Personally, I'd much rather read and participate in discussions having to do with the fundamentals of self government than spitball fights between supporters of various candidates. So herewith, the ninth and tenth amendments to the Constitution:

IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The conversation thus far grows out of Marc's post, "Recapping Chafee/Laffey 2006."

In the comments section, Tom W began the tangent with this:

How about "traditional Republican values" as expressed by the letter and spirit of the U.S. Constitution?

It is not generally known - for the lefties running the schools have succeeded in re-writing history (the victor gets to write the history) - but FDR conducted a de facto coup against the U.S. Constitution, and thus against the United States. (While this may well strike you as hyperbole or the ranting of a “right wing nut” – read the history on this – and the text of the Constitution - then decide for yourself.)

After losing a couple of big cases declaring “New Deal” programs as unconstitutional (exceeding the federal branches authority under the Constitution), FDR attempted to expand the number of justices on the Supreme Court ("packing the Court") so that he could appoint a majority that would rule his way.

This attempt at packing was too much even for FDR’s own Democratic Party. But thus threatened, the Supreme Court reversed itself and began to accede to absurdly expansive readings of the (interstate) Commerce Clause – totally at variance with how the Constitution was interpreted in its first 150-ish years - effectively creating a loophole for FDR to impose the New Deal. Since then, the Tenth Amendment to the Constitution has been ignored (for most of the New Deal / Great Society would not pass Constitutional muster if the Tenth Amendment was enforced).

Funny, the First Amendment is deemed that it should be construed expansively – protecting pornography and such; and post-FDR the Commerce Clause (authorizing Congress to regulate “commerce between the states”) has been interpreted so expansively that Congress can enact myriad welfare programs under the guise of “regulating interstate commerce” … yet the Second Amendment enumerated right “to keep and bear arms” is interpreted very restrictively, and the Tenth Amendment reserving to the States all powers not specifically granted the federal government is ignored.

This is why the composition of the U.S. Supreme Court is so critical. The Constitution is essentially nothing more or less than a contract – one between the citizens and the federal government. Basic contract law is that a contract is to be construed to enforce the original intent of its makers – first by looking at the plain language on the “four corners” of the document itself, and if there is some ambiguity, then (as best as possible) gleaning the original intent of those who made it.

Thus we can have a Court that interprets the Constitution the way it is plainly written (or applying the spirit and intent of it by consulting the writings of the Founding Fathers that drafted it). Or we can have a “liberal” FDR Court that does not see it as the contract it is, but as a “living document” that means nothing but what they say it does at that moment, thus providing cover for imposing whatever liberal cause du jour is before it.

This is why having a Senate made up of true Republicans – those who will support judges who in turn will support the U.S. Constitution – is so critical and comports with “traditional Republican values.” Lincoln Chafee does not qualify as a “traditional Republican” in any sense of the phrase.

To which Bobby Oliveira replied:

Madison constructed the 9th Amendment purposely to captures Rights that may not make it into the "Bill of Rights". Therefore, the number one author of the document you so obviously misunderstand wanted it to be living and breathing.

Tom W:

"Living and breathing" is why they included an AMENDMENT process - think about it, if it was intended to be "living and breathing" based upon the then-current ideological composition of the Supreme Court, we'd effectively have founded a government of nine kings! The Founders knew better than to do that ...

The philosophical basis of the Constitution is the EACH human being (not a "collective") has inalienable rights - and that the presumption is that any "right" is presumed to be held by that individual.

The Constitution ("contract" between the governed and its government) is that certain of those rights are delegated to the government in order to promote a civil society. Similar to the 10th Amendment in regard to States, all rights not specifically granted the federal government are reserved to each individual.

The 9th Amendment merely makes that concept clear, should there be any misunderstanding by "living document" proponents who believe (or want to believe) that rights are granted by the government to the people.

Bobby Oliveira:

Your analysis has one small problem: Madison disagrees with it. I suppose it's one thing if I disagree with you; however, it is quite another with the author disagrees with you.

Nothing in the Federalist papers, or any other Madison writing , supports your positio. I'm not surprised. You gave up the genesis of your positions when you told us about FDR.

Tom:

Bobby, I hate to burst the bubble of your liberal religion with FACTS, but such is life here in the real world - try this for a quick little intro on Madison, the Bill of Rights, and the 9th:

"It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent … It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution." James Madison Proposed Amendments to the Constitution, June 8, 1789

http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution

And as for FDR packing the courts, try these for a quick intro:

http://en.wikipedia.org/wiki/Judiciary_Reorganization_Bill_of_1937

http://en.wikipedia.org/wiki/Constitution_in_Exile

At this point, AuH2ORepublican joined in:

Bobby, you are dead wrong about the 9th Amendment. Madison did not write it to allow the Supreme Court to add "rights" to the Constitution, he wrote it so that the Bill of Rights were not interpreted following the hermeneutical maxim "expressio unius est exclusio alterius," which would have, for example, meant that since the 4th Amendment prohibits unreasonable searches of persons, houses, papers and effects but does not specifically mention offices or vehicles that it wouldn't apply to searches of offices or vehicles. Liberals and conservatives alike agree with this interpretation of the history of the 9th Amendment:

The Sixth Circuit Court of Appeals stated as follows in Gibson v. Matthews, 926 F.2d 532, 537 (6th Cir. 1991):

"[T]he ninth amendment does not confer substantive rights in addition to those conferred by other portions of our governing law. The ninth amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution."

The U.S. Supreme Court has explained as follows, in United Public Workers v. Mitchell (1947):

"If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail."

As Justice Douglas once put it, "The Ninth Amendment obviously does not create federally enforceable rights." See Doe v. Bolton (1973). And Justice Scalia expressed the same view, in Troxel v. Granville (2000):

"The Declaration of Independence...is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people."

Professor Laurence Tribe shares this view: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution." See Laurence H. Tribe, American Constitutional Law 776 n. 14 (2nd ed. 1998).

This is similar to the view of Justice Goldberg (joined by Chief Justice Warren and Justice Brennan), in the case of Griswold v. Connecticut (1965), although Goldberg viewed the Ninth Amendment as relevant to the scope of Fourteenth Amendment rights:

"[T]he Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement."

http://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_Constitution

Bobby:

First and foremost, thank you for taking the time to do some research. I realy appreciate your effort.

However, your comments do not address any of Madison's writings or speeches before the Congress. I can also quote just as many cases, or sections of opinions from the same cases, which would illustrate the opposite point.

Before I do that, I would like to know what the Blog thinks. Technically, this dicussion was never supposed to be about interpretations of the 9th Amendment, and thereby requires a small discussion of the role of the 10th, and I'd hate to move that far away from the original topic without some consensus or a blog moderator introducing the 9th/10th discussion as an entirely new topic.

I would argue at this point that the vaugeness of the 9th, and to some point the 2nd, somewhat makes my point. Therefore, if the moderators or the consumers of the Blog would like to see this progress, they should make it known.

Fellow bloggers and moderators, what say ye??

For my part, I'd say that it's pretty clear (based on experience), before his evidence is even offered, that Bobby has bought into one of those specious and contorted arguments of the kind that lead to the first amendment's being used as a lever to restrict religious speech in the public square. To wit: "We may not prohibit free exercise of religion, and we may not abridge the freedom of speech, so it must be Constitutionally required that we ban religious groups from speaking in schools!"

But I'm far from well versed in Constitutional law — much less the myriad debates that each article and amendment inspires — so I'm certainly open to the possibility that I'm just not seeing why the words quoted at the beginning of this post do not mean what they plainly appear to mean. I would note, though — as a point of civility — that Bobby rapidly transitioned from accusing his opposition of "obviously misunderstand[ing]" the Constitution to making the defensive claim that he could "quote just as many cases, or sections of opinions from the same cases," that argue against their position.

If we can all remain open to the possibility of our own error, and if we can focus on truth rather than victory, perhaps we may be able to dig down to the foundations of our disagreements.

Comments

Freedom of religion (not freedom FROM religion) - that's what Rhode Island was founded on. Never forget that.
It's just that sometimes people forget that freedom of religion also applies to Muslims, Hindus, Wiccans, etc.

Posted by: rhody at September 8, 2006 8:41 PM

Not to begin yet another tangent, Rhody, and with the hope that those with things to say about the ninth and tenth amendments will resist distraction, but you've made a pretty significant accusation about people's treatment of "Muslims, Hindus, Wiccans, etc." that is absolutely meaningless and likewise destined to polarize rather than engage if it is not either explained or substantiated.

Posted by: Justin Katz at September 8, 2006 8:48 PM

Justin:

Amen brother!

Meaningful debate will always focus on a specific issue and the various perspectives of those who chose to engage.

J Mahn

Posted by: Joe Mahn at September 8, 2006 9:12 PM

I'm saying that some people who would deny rights to non-Judeo-Christian religions would argue that the ninth amendment does not protect these people.
This may shed a little light on the subject:
http://atheism.about.com/library/FAQs/christian/blfaq_viol_wicca.htm?terms=dating+rituals

At this point, I'll shut up and listen - I'm not long-winded, and would rather keep things short and pithy.

Posted by: Rhody at September 8, 2006 9:12 PM

Rhody:

The problem with freedom is its abuse not its essence.

Religions, even those that believe there is no God, are allowed to exist and practice their rituals and customs, unless those rituals and customs violate another citizen's freedom. Here's the rub, at its very core human nature is depraved.

Some religions, therefore, teach and believe it is their God given duty to destroy members of other religions that serve other gods. They are not free under any aspect or tenet of our Constitution to threaten other citizens or carry out such acts. In fact their personal freedoms can be taken away.

Simply put, freedom is limited by the law not established by it.

Check this out. I saw this posted back in May.

SV

Posted by: Sol Venturi at September 8, 2006 9:48 PM

Dear Rhody,

Do you mind if I please get this back on traqk??

I asked for this because I truly believe this discussion about 9th and 10th Amendment interpretations will tell us more about each other than a lot of other things might. Certainly it has to be better than Tom W saying "unions are at fault for everything" and me responding with "you can't say that because you can't measure it" in 2,027 different renditions.

To Justin's point at the beginning -->

My response about misunderstand to Tom W was cumulative based on other things he's written. My response to AU..... was based on the one post regarding Constitutional issues that I have seen from him.

Just so everyone knows, as a practicing Catholic who has differences with Rome, having been taught by the Benedictans and the Jesuits please tell me you're not surprised, I have no plan to ever keep you from practicing any religion or using the tenets of said religion from making political decisions.

However, the Founders did set up a boundary as to what's ok, prayers before Congressional meetings, and what's not, public schools handing out Gideon Bibles.

We also must remember, as far as our own state goes, that Roger Williams, Anne Hutchinson and William Coddington were not only unhappy with the Puritans, they practiced Antinomianism.

Posted by: Bobby Oliveira at September 8, 2006 10:14 PM

i'm still waiting to bobby o to actually offer proof to support his argument.

so far, bobby, all i've seen from you is a desire not to take the time to post actual substance. instead you refer to arguments/statements/theories that support your argument but have produced nothing.

it seems as though your desire to seek blog-monitor approval is a weak attempt at deflecting tomw's argument.

TomW: "x + y = z. Here's my proof"

BobbyO: "well, i COULD pull an elephant out of my hat".... "i COULD jump over the moon"...."but i don't have time for that. let's talk about something else."

bobby, please...you're in over your head on this one, and have officially had circles run around you.

Posted by: geoff at September 8, 2006 10:45 PM

Dear Geoff,

''It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.''

That's James Madison's reasoning for the 9th. That 4th resolution, the precursor of the 9th Amendment, reads as follows:

"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall
not be so construed as to diminish the just importance of other rights retained by the people,
or as to enlarge the powers delegated by the constitution; but either as actual limitations of such
powers, or as inserted merely for greater caution"

Here's Justice Goldberg in Griswold v. Connecticut:

''The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. "

Geoff, to date, none of your friends has argued against the Madisonian interpretation especially as presented in Federalist 84. Tom W's argument is not linear. Rather, it is a sad attempt by a member of the fringe right to separate the Founders from their words.

In short Geoff, is there a right to Liberty? If you take Tom W's view, there isn't. Is there a right to privacy? Again, under Tom W's view, there isn't.

Representative Roger Sherman who served on the Hose Select Committee that drafted the Bill of Rights said it best:

"The people have certain natural rights which are retained by them when they enter into Society,
Such am the rights of Conscience in matters of religion; of acquiring property, and of pursuing
happiness & Safety; of Speaking, writing and publishing their Sentiments with decency and freedom;
of peaceably assembling to consult their common good, and of applying to Government by petition
or remonstrance for redress of grievances. Of these rights therefore they Shall not be deprived by
the Government of the united States".

In Arizona, this notion has been used so that folks can choose their own dieticians. Certainly you cannot believe that the number of rights we were supposed to have ends at 10.

Are you telling me we engaged in a Revolutionary War to obtain 10 enumerated rights?

How's Tom W's argument for "strict construction" sound now?

Posted by: Bobby Oliveira at September 8, 2006 11:17 PM

I just need someone to show me where in the Constitution it provides 'freedom from being offended'. Once I'm provided that, I'll begin taking some of the liberal B.S. arguments about separation of church and state seriously.

I mean, really. Who's offended because a military memorial is in the shape of a giant cross, or that the town seal has a cross in it, or that the town square has a manger in it at CHRISTmas time and why do they feel that their being offended gives them the right to restrict the freedoms of others?

Posted by: Greg at September 8, 2006 11:47 PM

Dear Greg,

It's in the 1st Amendment. Remember, we left England so we could all practice as we wanted to.

When Government puts up a symbol, it "establishes" that symbol over other symbols. It's not a question of offense.

Let us suppose that you go to Detroit and the Town Square has a Ramadan display. You may not be offended, but wouldn't you think that one religion had been preferred?

The religous right seems to forget why we left in the first place. It should also be stated that very few people are aware of the religous choices of RI's founders.

Let me try this again: Should the IRS be able to post your tax form as a public document on the internet? Under Tom W's view, they can.

Posted by: Bobby Oliveira at September 9, 2006 12:02 AM

Could you clarify for me exactly what language grants you 'freedom from offense'?

Posted by: Greg at September 9, 2006 12:16 AM

I think you're arguing past each other. No parties to this discussion are arguing that the number of rights we were supposed to have ends at 10; indeed, Tom and AuH2O's entire argument about the ninth amendment is that it was intended to prevent that very conclusion.

The gulf across which you are arguing appears to lie thus: Tom and AuH2O (and me, by the way) see the term "living constitution" to imply the liberal notion that judges may manipulate the text in order to "update" it after a fashion — specifically, after their fashion. Note Tom's emphasis on the amendment process as that which ought to the constitution a "living document." (If his argument does not appear linear, I humbly suggest that it is because you're not clearly following it.)

Perhaps the central difference is that we see the Constitution as a document that, in essence, grants rights to the government (with its authority being the people). You appear to be approaching it as if the Constitution grants rights to the people (with its authority being the government). Thus, when the Supreme Court finds a Constitutional right to (say) sodomy, you see it as having defined sodomy as one of those rights that the Constitution didn't specifically enumerate (but did grant), whereas we see it as having stepped beyond the boundaries specifically laid out for it within the Constitution.

The ninth amendment does not have the positive effect of granting any rights whatsoever. Rather, in its language, it merely states that there are rights not enumerated; it doesn't presume to dictate what they must be construed to be. The exploration and definition of rights and privileges not specifically enumerated properly falls to representative agency or to individual conscience.

I'm curious why, in your Constitutional philosophy, we have subconstitutional laws (i.e., those that can be enacted by an elected legislature) at all. It would seem that we need only have the Constitution and the judiciary to define what rights it covers. Even looking to the two amendments in question (9 & 10), I'm not sure how you would account for the language in 10 that powers not delegated to the federal government "are reserved to the States respectively, or to the people."

Fundamentally, your view appears to negate the most essential civil right: the right to self-government, to work toward the type of government that you want, whatever that might be. Especially on controversial issues (abortion, prayer in school, marriage, stem cells, etc.), self-government is mere illusion if the outcome is already written into the Constitution in some vague language that only judges can see. (Must every law be an amendment?)

Your quote from Roger Sherman exposes this blindspot as soon as the phrase "with decency" appears. Well, who defines decency — not only of speech but of society, of culture, of law. To simplify, you seem to believe that we must entrust that power to a handful of elite judges. We believe that the people must have the liberty to answer such questions through the process of voting.

Posted by: Justin Katz at September 9, 2006 12:27 AM
When Government puts up a symbol, it "establishes" that symbol over other symbols.

Baloney. Are we moronic sheep who have no ability to comprehend context or the limits of actions? If I "go to Detroit and the Town Square has a Ramadan display," I'll assume that the town officially recognizes Ramadan as an event worth noting and, at the indirect will of its citizens (remember: voting and stuff), as worthy of at least the mild celebration of a display. If the display is more permanent (e.g., a granite statue), I'll assume that Islam had something noteworthy to do with the town's history and/or contributes so mightily to the local culture that the citizens wanted to display that quality.

As long as I am able to practice my own religion in that town, to work to change the culture of the town, and to strive through electoral and legislative processes to change the public square's symbology, then no religion has been "established."

(One gets the feeling that liberals can't see this because they imagine a Christian dictator lingering behind every attempt of Christians to be acknowledged, as a group, by their own government.)

Posted by: Justin Katz at September 9, 2006 12:48 AM

>> Geoff, to date, none of your friends has argued against the Madisonian interpretation especially as presented in Federalist 84. Tom W's argument is not linear. Rather, it is a sad attempt by a member of the fringe right to separate the Founders from their words. In short Geoff, is there a right to Liberty? If you take Tom W's view, there isn't. Is there a right to privacy? Again, under Tom W's view, there isn't. … How's Tom W's argument for "strict construction" sound now? … Let me try this again: Should the IRS be able to post your tax form as a public document on the internet? Under Tom W's view, they can.


Mr. O:

Since you seem intelligent enough to understand what I’ve been saying, (apparently deliberately) twisting and totally misrepresenting what I’ve said, and the meaning of I’ve said, does not help your cause.

As I’ve said - the Constitution, in letter and in spirit – stands for the proposition that each INDIVIDUAL has unfettered LIBERTY except for those granted or delegated to government. Further, that this individual liberty is God-given (or innate, for you atheists out there) – so there is no “right” to be conveyed or granted by government, for government itself has no “right” to do so … people give “rights” to government, not the other way around. This presumption of liberty in the individual is the constellation of “rights.”

I’m supposing that in your statement you are using “right to privacy” in the sense that liberals use it as a code-word for abortion (isn’t it telling that liberals have to communicate via euphemism, afraid to enunciate in plain English what they stand for). Liberty does not extend to harming others (absent mitigating circumstances such as self-defense). The debate about abortion is not about “choice” or “liberty” it is about preventing one human being from (fatally) harming another – thus it is really a debate analogous to a debate (as if there should be one) as to whether society can outlaw assault, rape or murder.

So the “strict construction” of the Constitution is interpretation that supports maximum individual liberty.

As for your red herring argument that I would support the IRS posting tax returns on the Internet (whatever orifice you pulled that out of): quite the contrary. I believe that the income tax should be abolished, and with the IRS (of course we can thank Democrat Woodrow Wilson, bench-warmer for FDR, for the income tax). The idea of forcing citizens to divulge their financial information to the government would have horrified the Founding Fathers, and it horrifies me. It should also horrify liberals – but I guess they don’t want to give up the primary funding source for the welfare state and its usefulness as the liberals’ primary weapon, for engaging in class warfare (I have to laugh at the liberals’ high screams over the Patriot Act, when IRS requirements are far more intrusive and widespread).

And speaking of, I oppose all forms of welfare. Social welfare. Corporate welfare. Agricultural welfare. Union welfare (e.g., project labor agreements). For you see, they all conflict with my individual liberty – the government is forcing me to pay for things for which I derive no direct (or even indirect) benefit, many of which I philosophically oppose. The reduced monetary resources I have available to me because of the resultant taxation reduce the range of potential choices I have, and thus negatively impacts individual liberty.

Posted by: Tom W at September 9, 2006 12:49 AM

Reading this thread makes me wonder if the Constitution is like the Bible: depending on which political point of view we subscribe to, we can make it mean anything we want.
Can we agree that we're all simply scrapping over interpretation?

Posted by: Rhody at September 9, 2006 1:17 AM

I'm not even going to try to elaborate on what Tom posted, because it's all right on the money (as usual).

While we're on the topic, every year for the past several now, the United States Postal Service has issued "Happy Eid" stamps (Eid is the festival celebrating the end of the month of Ramadan). So, by Bobby's logic, am I to infer that the USPS is endorsing Islam?

PS Rhody, we're not scrapping over interpretation, we're scrapping about how one interprets it. Conservatives do generally go for a more literal meaning -- though at the same time not throwing out common sense. However, if they don't like something that they read, they try to get it amended, as the Constitution itself calls for. Unfortunately, liberals using activist judges, just try to get the courts to create new meanings for old words they don't like, thereby destroying the purpose for even writing them down in the first place. A word without a fixed meaning isn't worth writing down.

Posted by: Will at September 9, 2006 1:23 AM

The term "activist judge," like "political correctness," is in the eye of the beholder. They may be buzzwords conservatives like to use, but they can be applied to both sides. For example, Chafee is not liked here because he violates conservative standards of political correctness, and some folks on the other side consider Tony Scalia too much of an activist judge.

Posted by: rhody at September 9, 2006 1:43 AM

Yeah, but Scalia didn't take away you right to own property like five other judges on the court did, flying directly in the face of clear Constitutional text.

Posted by: Greg at September 9, 2006 6:30 AM

What does it mean to be "scrapping over interpretation" — as distinct from seeking for meaning? Such meta-arguments are common ploys by those who desire for texts to say that which they clearly do not.

Posted by: Justin Katz at September 9, 2006 8:10 AM

Ah, eminent domain - the one time I found myself agreeing with Scalia. If Scalia's side prevailed, the developers would've mean moaning about what an activist judge he was. I'm happy that Scalia, at least on occasion, is willing to stand up to corporate power.
"Scrapping over interpretation" - that's what every court case is about. It's why we have judges, whether we agree with their verdicts or not.

Posted by: rhody at September 9, 2006 9:46 AM

Dear Tom,

Fetuses are not humans. A woman has the right to determine was is best for her own body through an inherent right to privacy.

If things were as you said, thank God they are not, there would be no need for a Bill of Rights. However, there is and thank God it exists.

In short, you have not proven regarding the Constitution. Rather, you have totally proven that are a very selfish human being with misogynist leanings.

Every thing you say impinges on your liberty tends to benefit the female gender. By making these investments, we save ourselves larger investments down the road.

Lastly, if activist judge means "one who overturns current statute", then that title is most befitting on Justice Thomas.

Will,

if that's the case, why did the Founders make the document so intentionally vauge? Much like Tom, your analysis fits well on a bumper sticker but not any where else. (when the first Yom Kippur stamps were introduced, Christian Right groups filed suit.)

Posted by: Bobby Oliveira at September 9, 2006 10:04 AM
Fetuses are not humans.

What species are they?

If things were as you said, thank God they are not, there would be no need for a Bill of Rights.

Not true. Certain rights and privileges are sufficiently broad, important, and universal that it is worthwhile to state them explicitly (particularly when they are, as with speech, religion, and arms) flashpoints for government oppression. That doesn't mean that there aren't rights — even inalienable ones — not listed. It does, however, mean that, through processes of representative government and individual conscience, unlisted rights are available for discussion and restriction, as the self-governing people see fit. If you believe a "right to privacy" to be inalienable, make the case and seek an amendment to add it to the Constitution.

why did the Founders make the document so intentionally vauge?

It is not intentionally vague. You just wish it to be so in order to impose your modern preferences on its meaning. The Constitution is very specific; it's just limited in its scope to defining our form of government. You might as well declare that you can reinterpret the laws of physics because science is so very vague about morality and the meaning of life.

Posted by: Justin Katz at September 9, 2006 10:27 AM

>>Fetuses are not humans. A woman has the right to determine was is best for her own body through an inherent right to privacy.

Then why does the medical profession offer prenatal care???? Should women go to veterinarians instead?

And why are there paternity statutes requiring “fathers” to support children? After all, under your logic, there can be no fathers because (at most) the male’s involvement is in making a “fetus” which is “not human.”

Tell us Bobby, exactly when is the magic moment when a “fetus” reaches the status of “human being?” Is it when they register as Democrats?

>>If things were as you said, thank God they are not, there would be no need for a Bill of Rights. However, there is and thank God it exists. In short, you have not proven regarding the Constitution. Rather, you have totally proven that are a very selfish human being with misogynist leanings.

Oh, thank you for the psychological evaluation. I love the self-righteousness of you liberals, telling the rest of us that we’re greedy or misogynist or racist or whatever when we don’t buy into the liberal / socialist agenda.

When I see Ted Kennedy selling “the compound” in Hyannis and giving all the proceeds to charity, along with the proceeds from the Kennedy trust funds, then I’ll start attributing some moral credibility to your side. In the meantime, I’m just trying to live the American dream by working, supporting myself, and trying to advance my station in life – this is the kind of “selfishness” we need more of in this country.

>>Every thing you say impinges on your liberty tends to benefit the female gender. By making these investments, we save ourselves larger investments down the road.

Well, thank you for the liberal sound bites. Please explain how opposition to corporate / agricultural / union / social welfare is misogynist. I can hardly wait.

By “investments” I assume that you’re talking about “social services,” as that is the euphemism de jour used by liberals to refer to welfare and government spending in general.

The “War on Poverty” has been in place for over forty years, and made the problem worse. After all, subsidizing young women to produce litters of illegitimate babies (that they can’t support and aren’t fit to raise) is guaranteed to create a “permanent underclass.” This you call an investment?

>>Lastly, if activist judge means "one who overturns current statute", then that title is most befitting on Justice Thomas.

No, as you well know, “activist judge” refers to one inclined to make law, rather than interpret laws within the parameters of the letter and intent of the Constitution.

Posted by: Tom W at September 9, 2006 10:47 AM

I fully support Bobby's position on fetuses not being humans. As has recently been revealed, Democrats are aborting themselves out of existance while Republicans continue to procreate like always. At this rate, in another 30 years, there won't be any abortions because those who would have them will have never been born at all and the circle will have completed itself.

Posted by: Greg at September 9, 2006 1:07 PM

>>fully support Bobby's position on fetuses not being humans. As has recently been revealed, Democrats are aborting themselves out of existance while Republicans continue to procreate like always. At this rate, in another 30 years, there won't be any abortions because those who would have them will have never been born at all and the circle will have completed itself.

Could this be why Democrats / unions support mass illegal immigration???

Posted by: Tom W at September 9, 2006 3:45 PM

"Yeah, but Scalia didn't take away you right to own property like five other judges on the court did, flying directly in the face of clear Constitutional text."

The shock of Kelo vs. New London - abolition of private property ownership by the Supreme Court simultaneous with the RE-WRITING of our Constitution (or maybe the five Justices need remedial reading lessons) - instantly made me a strict constitutionalist.

It also makes me question the validity of all decisions by prior Supreme Courts. As in, what liberties have prior Supreme Courts taken with our Constitution? And did any of those liberties enable (in the current meaning, as "don't enable an addict") five members of this Supreme Court to render this wholly unconstitutional and abominable decision?

Posted by: SusanD at September 9, 2006 4:34 PM

"Could this be why Democrats / unions support mass illegal immigration???"

To quoth Bert Parks, "Circle gets the square."

Posted by: Greg at September 9, 2006 4:38 PM

Dear Justin,

1.) When is the last time you went to a funeral for a miscarriage?

2.) Are embryos, before being flushed down the drain, given last rites?

3.) Have you ever wished anyone "Happy Conception Day"?

4.) Jesus says in the New Testament that he has not come to change the old law, just to add two new ones. Under Jewish Law, abortion was permitted at the time through the drinking of poisions.

5.) The Constitution is vauge throughout the Bill of Rights. It is vague on the issue of succession. It is vague on the issue of commerce. If it wasn't, why was the Bill of Rights necessary in the first place? The only folks trying to make it say things it doesn't are members of the Christian Right.

By the way, a right to privacy is the current law of the land. It is you who needs a Consitutional Amendment.

Posted by: Bobby Oliveira at September 9, 2006 5:44 PM

Dear Justin,

On your religous point:

Please take a Constitutional Law Class.

According to your interpretation, slavery is just fine.

The 15th Amendment was passed in order to end discrimination by the government and the people. This happens all the time.

Please read the 7th Day Adventist cases and Minersville v. Gobitis.

The Constitution is not only about the relationship of Government to people. It is also about the relationship of the majority to the minority. You seem to be missing this point. It is one of the most important things, if not the most important thing, that the Constitution does.

Firing a Jewish person for not working on Roshashana is wrong. However, there will never be enough Jewish people to form a representative majority to turn this into, your term, sub-Constitutional law. Therefore, protection must be offered through another means.

If you like thought of white only, were women are second class citizens, Utah and Idaho are always available.

Posted by: Bobby Oliveira at September 9, 2006 5:50 PM

Dear Tom W,

You have again done two things at which you excel:

1.) You have parroted conservative talking points thinking that they are "givens".

2.) You have provided an argument for which you have absolutely no evidence. There is no evidence anywhere to suggest that poverty is worse now. There is evidence to suggest that the middle class has to work two jobs, currently due to GOP pork (you guys are in control, don't blame the pork on us), but there is no evidence regarding the poor.

Appearently, Jim Crow works for you.

Posted by: Bobby Oliveira at September 9, 2006 5:54 PM

Dear SusanD,

I suggest you read the decision after you read Marbury v. Madison.

The Kelo decision is a lot of things: not well thought out, terrible, silly, stupid, not well written, not well argued, et cetera.

However, it is Constitutional and that you cannot get around.

(By the way, where was your annoyance when for the first time in history a court ruled that it was "Constituional" to deny people the right to vote by not counting votes they had cast?)

Posted by: Bobby Oliveira at September 9, 2006 5:59 PM

1–4) I've never been to a funeral for an Irishman; does that mean that the Irish are not human? Similarly, people die every day whose funerals, if held, nobody attends; are they not human? The point is this: you made a positive assertion that "fetuses are not humans," and I asked what species they are. You have failed to answer that question, and your fear of confirming your a priori conclusion through direct, step-by-step logic is not excused by your recitation of observations that confirm that, yes, our culture is capable of great evil. If your answer to my question is that fetuses, while technically human beings, do not deserve the rights granted to more developed human beings, then say so and dispense with the recourse to emotionalism and highly dubious Christian exegesis. (N.B. — I would, of course, go to a funeral for an Irishman if I knew him and/or his family. Similarly, I would go to a funeral for a fetus if his family held one.)

5) Define "vagueness" in such a way as to discount my previous explanation of why the Constitution is not vague.

As for my needing a constitutional amendment on the issue of privacy, I'll offer two points:

A) My point was not one of current practical necessity, but a more abstract one of ideal processes. In other words, I wasn't saying that you currently need an amendment to bring about your preferred policy; rather, I was explaining how I believe our governing system ought to operate.

B) Be that as it may, in point of fact, "I" do not need a constitutional amendment; I just need a majority on the Supreme Court and then the sky's the limit. Of course, I would prefer that those who take my side not mimic yours in its damaging strategy, but I imagine you and yours will be singing quite a different tune when you can't rely on a judicial oligarchy to enforce your world view (to wit, your religion) on the rest of us.

Posted by: Justin Katz at September 9, 2006 6:31 PM

My best friend's wife gave birth prematurely to a child early in the third trimester and he lived for six hours before he passed. My sister carried a child full term and the baby died three hours later from a heart defect.

Both were human. Both had names. Both had funerals. One, by medical definition, was a fetus.

If you don't want to have a baby, use contraceptives or don't spread your legs. It's no more complicated than that.

The constitution provides no right to privacy, implied or otherwise, and you've wholy failed (AGAIN) to provide any text in the document to support your arguments. All you've done is belittle and bash those who have done a far better job of articulating their points than you while offering absolutely no support for your stances.

Your liberal indoctrination have left you entirely ill-equipped to have a battle of the minds on this issue. Perhaps you'd be better suited to argue the definition of the word "is" or whether oral sex is, in fact, sex.

Posted by: Greg at September 9, 2006 6:40 PM

Moving along (and trying to maintain a civil tone despite your increasing incivility), to the religious point:

According to your interpretation, slavery is just fine.

Not at all. For one thing, the thirteenth amendment prohibits it. For another, self ownership is one of those freedoms falling into the group that I described above as "sufficiently broad, important, and universal that it is worthwhile to state them explicitly (particularly when they are, as with speech, religion, and arms [and slavery]) flashpoints for government oppression."

Similarly, and this would have been obvious if you approached your ideological opposition with an ounce of good will, it should have been clear that I would support the fifteenth amendment, because it is crucial to my political philosophy that citizens be able to work to change their own society and government — through social action, centrally including votes. (Have you ever reflected that the upshot of your support for judicial oligarchy and for the creation of protected classes is effectively indistinguisible from disenfranchising those with whom you disagree?)

The Constitution is not only about the relationship of Government to people. It is also about the relationship of the majority to the minority.

The Constitution is no doubt "about" the relationship that you cite, but that is incidental to the scope of how it acts as a legal document. In other words, it protects the rights of minorities by explicitly protecting them in the law. The majority, that is, cannot act by force of law to oppress the minority. Ironically, in attempting to leverage the government to regulate social and even interpersonal relationships between groups, progressives are piecing together precisely the sort of tyranny that they claim (and surely feel themselves) to oppose.

Posted by: Justin Katz at September 9, 2006 6:47 PM

>>Dear Tom W,

>>You have again done two things at which you excel: 1.) You have parroted conservative talking points thinking that they are "givens".

And those might be???

>>2.) You have provided an argument for which you have absolutely no evidence. There is no evidence anywhere to suggest that poverty is worse now.

My, my, the omnipotent one tells us that there is no evidence. The U.S. Census Bureau tracks rates of poverty as a percentage of the population. Those rates were declining for decades … until the War on Poverty began in earnest in the mid-sixties. Since then the poverty rate has essentially flat-lined … hovering around 12%. Since the U.S. population has greatly increased in the last forty years, and the poverty rate has stayed about the same, the only possible conclusion is that there are millions more people “living in poverty” now than when the “War on Poverty” began. To those of us that live in the world of real numbers (e.g., where a reduction in a budget increase is not a “cut” in the budget) that means that the problem of poverty is worse.

And if you want some tangible, “live” evidence, go spend a morning at the Garrahy District Court complex in Providence and observe the legacy of the War on Poverty, i.e., all the never-married welfare “ho’s” there to watch ONE of the fathers of ONE of their babies being arraigned.

>>There is evidence to suggest that the middle class has to work two jobs, currently due to GOP pork (you guys are in control, don't blame the pork on us), but there is no evidence regarding the poor.

In the 1950’s a single-earner family did fine – I’ve seen estimates that the average family’s total tax burden during that period was about 10% of gross income.

In real terms, average family incomes peaked around 1973 (try as you might, you can’t blame George W for that). As with poverty rates, there is an interesting parallel – this peak occurred within a few years of the enactment of the War on Poverty / Great Society / public-sector unionization precipitated massive increase in the size and scope of the federal government. Hmmmmm …

Today – post War on Poverty / Great Society / public-sector unionization – that average family tax burden is about 45%, and that’s with two earners. In effect, one spouse is working full-time just to cover the increased tax burden.

Both parties are guilty of pork – and the Republicans should be held to a higher standard in this regard.

>>Appearently, Jim Crow works for you.

WTF are you talking about???

That would be like me saying to you: "Apparently because you're a Democrat Stalin's killing of millions in the Gulag works for you."

If there is a Jim Crow now, it is the Democrats' War on Poverty "that's a keepin' those folk down on that 'ole welfare plantation by makin' sure they can't get their youngun's into a good non-union private school!"

Posted by: Tom W at September 9, 2006 7:05 PM

Dear Justin,

Fair questions, let's take them one at a time:

I believe that you and I can agree that it becomes a life form when the soul enters. The Church has always taught this is at "first movement". The only passage in the Bible that comes close to offering an answer is in Leviticus "Life begins in the blood (about 40 days)". However, we have a little problem. Neither one of us can find a soul (that science thing again, darn). We cannot use faith based material to make legal decisions. Therefore, we must go to something else. I'll offer the following as a compromise: sole viability outside the womb. That means no machines. Until then, it's not a human for the purposes of giving it rights.

2.) Traditionally, the system has never operated that way. Once we stopped declaring negroes, the verbiage of the time, as partial humans, we have always moved to more rights for the individual. Based on the way $$ influence elections, you are setting up a system where the rich can create change. I don't have a problem if they create change from time to time but they can not be left as the sole gatekeepers in this effort.

3.) The day Roe v. Wade gets overturned is the day we file the Amendment. It's also the day we mark as the end of the modern GOP party. GOP strategists will tell you they fear it intensely.

Posted by: Bobby Oliveira at September 9, 2006 8:19 PM

Dear Greg,

Read Federalist 84. Read Roe v. Wade. I don't have to prove a point that is already a given.

Not once have any of you gone to Madison's writings. Only once, AURepublican, have cases been put forward. I've seen one fringe right talking point after another. That's not "proof", that's cut and paste.

By the way, what happens in cases of rape where the young lady didn't choose to spread her legs? I notice you put no responsibility on the male whatsoever.

Posted by: Bobby Oliveira at September 9, 2006 8:22 PM

Dear Justin,

Your set of second points are much better. Just a couple of notes:

The problem with you arguing the 13th Amendment is that you argue strict construction before the 9th. Once you do that, it's somewhat hard to believe that you would have been in favor of the 13th. (For the record, if you put me in Colonial New England based on current thought of the time and the amount of cash being made in the slave trade, who knows how I would have voted either.)

I'm surprised that you haven't used my interpretation of the 9th to Conservative advantage. For instance:

- There is an inherent right to be safe from enemies who might blow us up on our own soil

- There is an inherent right not to be taxed out of house and home

- There is an inherent right to expect secure borders as part of public safety

I really can't argue against any of those because they sound just as reasonable even if they aren't my top priorities.

Lastly, your final point works well until we find out that the science changes. By the way, it always does.

Posted by: Bobby Oliveira at September 9, 2006 8:29 PM

Dear Tom W,

What am I going to do with you?

1.)e.g. Could this be why Democrats/ unions support mass illegal immigration. When did that happen? You have all 3 branches. You choose not to close the borders but force us to go through an anal cavity search in order to visit a relative in Indiana. Even we did support this ludicrous position, we have no control. Your President could instruct the Justice Department to enforce to the letter what's on the books as his right.

2. Have you forgotten the culmative property of addition? The same evidence that you use to say there's more poor folks, I can use to say there's more reach folks. Therefore, using your logic, the war on poverty has created millionaires. By the way, did you just call Queen Mary a ho?? Maybe I have the wrong queen. One of them had 2 kids from different dads and one of the dads got jammed up. (The lack of birth control use, as a public health issue, is appalling.)

3.) In a perfect world, we'd eliminate all the waste (not all the welfare). It does me no good to waste money because if there is a program I actually like, it gets strangled by a program I don't.

4.) Strict Constructionists would have to be at least tolerant of Jim Crow since those rights are not enumerated. (By the way, thought you were a GOP'er. Jim Crow was invented by Democrats. Now, the same racists call themselves Republicans and you have the swing - that's all that's really changed.)

Posted by: Bobby Oliveira at September 9, 2006 8:41 PM

1) So, Bobby, is it your interpretation that Jeremiah 1:5 ("Before I formed you in the womb I knew you.") applies only to Jeremiah? As it happens, I don't believe in the concept of ensoulment. I believe the soul, as such, exists at least from the moment of conception and develops from there (in a sort of evolutionary process) throughout and beyond a person's life. In religious terms, I think the point moot, because I believe that we already exist fully formed eternally in God's mind (i.e., He sees all time as current). In terms of this debate, I don't believe the introduction of "soul" helps either way.

We cannot use faith based material to make legal decisions.

Why not? You use emotional material for same. Who dictates what processes I must use to determine for whom I vote or for what policies I advocate?

sole viability outside the womb. That means no machines.

So you're a supporter of non-consensual euthanasia at later stages in life? Otherwise, I don't see how the "compromise" buys you any moral ground.

2)I'm not concerned with consistency in socio-governmental trends. I'm concerned with achieving a just and free society. Times shift back and forth, and so must governmental trends.

3) That's why I identify as a conservative but not a Republican. The day you file your amendment is the day you discover how little support you actually have once the inertia of people who just don't want to think about the issue no longer works in your favor.

Subsequent series:

Once you do that, it's somewhat hard to believe that you would have been in favor of the 13th.

Only if you don't believe that I truly believe the political philosophy that I claim to harbor, and on what basis would you assume that? Anyway, why is it difficult to believe that I could simultaneously believe in free speech, religion, etc. and also believe in plain ol' freedom. (Side note: This belief is also entirely consistent with my advocacy for a cessation of abortion.)

I'm surprised that you haven't used my interpretation of the 9th to Conservative advantage.

Again, this presumes that I'm not sincere in my stated opinions. Yes, liberals, it is possible to simultaneously advocate for an ideal government regime and to believe that we shouldn't undermine that very government to implement it. Put differently: one can be suspicious of the urge to sell one's soul to the Devil in order to create Heaven on Earth.

Lastly, I have no idea where your science point comes from.

Posted by: Justin Katz at September 9, 2006 8:54 PM

Dear Justin,

Let's try this again: The Jeremiah passage, if this is your belief, also applies to all the babies in limbo.

There is no passage in the Bible, the apochrapha, the Koran, the Sumerian texts, that Indian thing I can't think of the name of or anywhere else that says life begins at conception. This is an invention of the 19th century much like the double rapture.

You as the individual can advocate for anything you like. However, we as government must use provable things to decide issues. Otherwise, chaos erupts.

How can call a society free in which women do not have control of their own bodies?

Which leads to:

As long as there are women, the issue will be there. Again, keep your laws off their bodies, it's not that hard.

You cannot argue strict constructionism and freedom in the same sentence because by definition, strict construction means certain folks lack freedom from the beginning.

The science point comes in this way: once science proves that sexual preference is even 10% biological, all the protections automatically enter.

First, it was marriages between members of different tribes that were prohibited. Than, it was different nation states. Than, different races. All have fallen. So will the "marriage is between a man and a woman" at the moment the biology proves itself. About the same time, the thought that 45 cells is "alive" shall also fall. That has been the course of human history.

Posted by: Bobby Oliveira at September 9, 2006 10:07 PM

1) I don't know of any teaching that denies that people in limbo have souls. I would think that one must have an eternal soul to be sent to a place called limbo. Moreover, since you bring it up, at least some Christians have gone so far as to perform interuterine baptisms.

2) Have you sat back and mused that you find yourself in the position of relying upon religious tradition (before even the 19th century) to support your case? One would think that a good liberal such as yourself would agree with me that, as our understanding of science and reality evolves, so too can our understanding of God and religion.

3) Why must our "government... use provable things" to define the law? More to the point, "provable" on what grounds and to whose satisfaction? Take abortion, for example: unlike our ancestors of centuries past, we can now trace the life of a human being in its unbroken progression from conception to death, and yet you still deny the fetus's humanity. Indeed, you imply, with what can only be seen as scientific illiteracy, that science will somehow prove that "45 cells is [not] 'alive'." I'll give you some rope, though: state the "provable things" that support your above-stated "compromise" on abortion.

4) Even without abortion, women do have control of their own bodies. They know that using their bodies for certain actions can have consequences, as with sex and pregnancy. (This is why a more legitimate compromise would make exceptions for rape.) However, with the introduction of a distinct human entity, the control asserted through abortion is not merely over her own body. How is it that you can believe that I must labor for five or more months of every year for my entire life (and believe me, I labor) in order to support a charitable government, and yet you find it patriarchical tyranny for me to suggest that women be required to devote nine months in a one-shot deal to secure the lives of children whom they helped to create?

5) I don't know that it's accurate to call me a strict constructionist, but I've still no idea how you justify the claim that "by definition, strict construction means certain folks lack freedom from the beginning." The only way this makes any sense to me is if you're referring to those who lacked freedom in the original Constitution. But that's why we have an amendment process, and even a strict constructionist would include the amendments.

6) I'm still not following your introduction of science's mutability. What does that have to do with my suggestion that progressives are constructing a tyrannical society? At any rate, I'm not sure why a biological basis of homosexuality would necessitate same-sex marriage (and from whence are you deriving exact percentages in such a mushy issue?!). Without getting into yet another tangent, we should at least be able to agree that our difference is of the purpose and significance of marriage, not the genders of its participants, per se. (Although I realize that you can't admit that publicly, or else the entire invidious discrimination argument for SSM collapses.)

Posted by: Justin Katz at September 9, 2006 11:25 PM

Well, this was pretty mind-numbing to read! I am for whatever the Constitution actually says, not for what I wish it said. If there is something in there that I don't like (say, the amendment permitting the income tax), then I would want Congress and the states to amend it, not simply ignore it, or change the meaning of the stated words to something altogether different.

For instance, slavery in the United States is illegal, because an amendment to the Constitution was passed making it so -- it was not done by judicial fiat. Woman have the right to vote, because an amendment to the Constitution made it legal -- there was no court case "giving" them that. Because people aren't perfect, we get imperfect laws. There is often a difference between what is moral, and what is legal. Abortion is immoral is most cases. It is never right, but is occasionally morally "justifiable." Murder is always wrong, but in some cases, is justifiable (for instance to prevent the murder of another). That so-called federal "right" exists only because the Supreme Court decreed that it existed. Therefore, because that is a court-granted right, it can just as easily be revoked by that same court.

As for Bobby, I don't know if he would ever be able to be convinced that a fetus is a human life. He seems comfortable being able to morally justify the killing of that life for reasons only he knows. Of course, he probably doesn't believe that there is a "life" present. When you don't realize this intrinsic worth of someone, it's very easy to treat them as you would an inanimate object. I'd suggest he read Ronald Reagan's "Abortion and the Conscience of the Nation." Then, if he lives through that experience, we'll see what we can do for him!

PS It always amazes me that the types of people that are the most pro-abortion, are the people who are usually berating people like us over wearing fur, eating meat, or telling us to "Save the Whales." How about saving some humans, instead of throwing them away like trash?

There's a very good quote by President Reagan that I like that touches on what we've been discussing: "Simple morality dictates that unless and until someone can prove the unborn human is not alive, we must give it the benefit of the doubt and assume it is. And, thus, it should be entitled to life, liberty, and the pursuit of happiness."

Posted by: Will at September 10, 2006 4:02 AM

Dear Justin,

1.) The same number of people smoke weed as a religous practice. Doesn't tell us a hell of a lot.

2.)First of all, I'm not a Liberal. They, neither the Progressive wing will have me. Has something to do with me being somewhat of a hawk and thinking the capital gains tax should be abolished. Never mind when I tell them what I think about the second Amendment.

St. Thomas Aquinas, whose medal I wear every day, taught us to except reason. The Jesuits taught me to search for universal truth at all time. If the handwriting where we are headed is clearly on the wall, why wait?

3.) We have decided as a matter of law that nothing happens until birth. You cannot get a social security card for a fetus for instance nor can you insure it. Until we have the live breathing animal in front of us, there are things we cannot do for it (assign it property, count it towards the census, et cetera.) As science viability line back, then it could be argued that there should not be discrimination against a less than 9 month fetus but viable.

By the way, compared to your 3 "exceptions", this actually at least makes sense.

4.) No Justin, that doesn;t work either. Why does a human, you define all conception as human, suddenly become dispendable based on the circumstances of their creation? "All life" as you define it, is either sacred or it isn't.

Let me let you in on two little secrets: some people like sex because it's fun. Sometimes, the birth control (yes, it's never employed enough) doesn't work.

Last time I checked, women worked to pay the same taxes you do. So if you create a child you have no plans to care for, you can walk away while she's stuck, not for 9 months, but the rest of her life.

Do tell, in your world where women are second class citizens, who goes to jail for this murder? Is it the doctor or the mother?

5.) Justin, by definition, no they wouldn't. A strict constructionist believes, again by definition, that all rights must be enumerated before the 9th. Otherwise, why have the 9th at all? Nobody who fought for Amendmentsa 12 thru 16 was ever a strict constructionist. Then again, most courts have never held up strict construction because it violates the spirit of Madison.

6.) The purpose of marriage is to let two people live in partnership. If you believe that is for the creation of children, I would remind you that you have just invalidated 50% of the marriages that place in Vegas last year because they were between adults over 50.

Sexual preference, once a biological component is proven, is no different than color or ethnicity. Let me guess, "mixed" marriages bother you. You've already shown contempt for women and homosexuals, why not minorities too?

AS far as significance goes: How significant can something be if it fails more than 50% of the time? Before one of you posts one of those "good old days" references, I would remind you that occured in a time when this nation had a horrible record regarding domestic violence. Then again, based on most of you having a total disrespect for the rights of women, perhaps you prefer it that way.

Posted by: Bobby Oliveira at September 10, 2006 8:22 AM

Dear Will,

Just so you know, I buy fur for women as gifts, I had steaks on the grill last night, and although I am a member of the Boston Aquarium, the sharks do a lot more for me then the whales ever did.

Yes, Reagan was so worried about abortion, all his appointees were pro-choice.

Again Will, you have chosen the rights of a group of cells over the rights of a woman. Everybody can see it, everybody knows what your real intent is.

Posted by: Bobby Oliveira at September 10, 2006 8:26 AM

Unbelievable. It's as if there's some malicious software between my computer and yours that transforms words that I actually write into the ravings of a right-wing nut that you expect to read.

1) Utterly typical that you've ignored my first point and responded only to the "by the way" point.

2) I'm sure the Nazis and Stalinists reasoned in roughly the same fashion.

3) Similarly to (1), you've ignored both my main point and my responding question, focusing instead on my example.

4a) The life is sacred, but society has less justification for saddling people with the consequences when the circumstances were not of their own making. Running somebody over with a car results in the ending of a, yes, sacred life. We treat the driver quite differently, however, if he tied the victim in place.

4b) Well, you've enunciated pretty well why the morality of birth control is questionable (which is not to say that I think it should be banned). Suddenly, a conception is not the fault of the adults engaged in the action that created the life, but the fault of some inanimate object or chemical. Again, this doesn't apply in its full force to the development of laws, but it is an example of the ways in which evil works its way into a society — step by step and over time.

4c) You've completely missed my point on this one. My point is this: you act as if it's the height of tyranny to require women to carry children (whom they've created) for nine months, and yet you find nothing wrong with requiring all citizens (men and women) to work for five or more months of a year to pay the taxes that support our large, charitable government. As for the point that you make, I'd be receptive to proposals that would require the man to offer some form of support for the woman during those nine months.

5) At least now we're back to the ninth amendment, which I'd suggest you reread. (It's helpfully copied at the top of this post.) It does not say "these are all the rights you have." It does say that, in addition to the rights listed, there are "others retained by the people." See, a strict constructionist would treat the language as it is actually written, not its opposite.

6a) See, you agree with me. Our disagreement is actually about the purpose of marriage. (Of course, admitting that would require you to reconsider whether I can be dismissed as a bigot.) In my view, although marriage has an aggregation of purposes, children do represent a central one — not really the creation of them, as you say, but the protection of them once created. I've written quite extensively on this if you're actually interested in understanding what the other side is arguing.

6b) No, you uncharitable and mean-spirited jerk.

Posted by: Justin Katz at September 10, 2006 8:52 AM

It's hard to imagine freedoms of anything in this state where you have a facist organization like the Rhode Island Shoreline Coaltion, spouting it's vomit. They might as well call themselves the Klu Klux Klan...it's the same thing.

Posted by: Rino Cooke at September 10, 2006 11:18 AM

Afterthought: I apologize for my closing outburst, above. But it seems to me that such as Bobby are too seldom met with sufficient vituperation when they begin flinging accusations of bigotry because they lack either intelligence or desire to figure out how others can disagree with them and still have honorable motivations and intentions.

Posted by: Justin Katz at September 10, 2006 12:41 PM

"Afterthought: I apologize for my closing outburst, above. But it seems to me that such as Bobby are too seldom met with sufficient vituperation when they begin flinging accusations of bigotry because they lack either intelligence or desire to figure out how others can disagree with them and still have honorable motivations and intentions."

It really is the result of years and years of liberal indoctrination from our education system. People on the left just have no concept of how we could possibly think the way we do and NOT be evil. Conservatives look at liberals not as crazy but as people who refuse to release their death grip on the failed concepts of socialism and communism and who feel it's more important to make noise about a problem than actually engaging and SOLVING the problem. Like Al Gore complaining about how people don't get enough social services and then contributing less than $100 to charitable organizations that help fill the needs of people where government either doesn't handle (Like the Salvation Army's retail stores) or the government doesn't handle it well (The Red Cross is vastly more efficient than FEMA).

If he REALLY cared that people that needed help weren't being it, he'd have done something about it by taking some of the money he makes off his oil rights (another fantastic hypocracy of the left...) and use it to supply low income people with fuel oil in the winter or something equally as valuable. But if enough people actually did something and SOLVED a problem, the left wouldn't have it to bitch about anymore and they'd wither and die.

How many people at an abortion rights rally actually contribute money to charitable organizations working to decrease the NEED for abortions by providing birth control and counselling services? Probably fewer than we'd think.

Posted by: Greg at September 10, 2006 1:53 PM

Dear Justin,

Relax bro. No apology is necessary.

You cannot have debates about issues as closely held and as emotional as these are without somebody offending somebody.

I've been called a lot worse. However, I cannot believe that a strict constructionist can have honest intentions because the two terms are mutually exclusive. Maybe you can prove me wrong.

Let's work on a couple of points I find interesting:

4 in toto) I am the product of 2 out of the 3 exceptions. Therefore, because of circumstance, my life was "not sacred" then due to something that happened to somebody else. What changed to make my life "sacred" now?

For the record, I think we can agree that one of the great problems facing this nation is the lack of personal responsibility across all fronts. (Tobacco suits drive me crazy.) However, not all mistakes should be considered "fatal."

5.) This again gets us to a point that your side has not addressed: Madison's intent. He intended not to restrict the rights to their enumeration. Therefore, he intended the exact opposite of the strict constructionist point of view.

6.) You haven't shown a lot of support for the rights of homosexuals, minorities or women. I'm sorry, but that's the way it reads. You seem to be "pro-birth" and not "pro-life". Once the child is born, it gets no help whatsoever. This is too common inconservative circles.

Posted by: Bobby Oliveira at September 10, 2006 6:19 PM

Dear Greg,

This I can guarantee you:

Folks at pro-choice rallies are much better at donating to those kinds of services than folks at pro-life rallies are at engaging in any kind of charity.

By the way, left of Fascist does not make Socialist or Communist. In fact, most Communist countries, with the exception of abhorrent Chinese policy which in the reverse way takes away the rights of women to control their bodies, do not allow for abortions. Since Socialism is an ideology based on who owns what, it almost has no place as a term in a debate about non economic policy.

This isn't Dan Yorke, Rush Limbaugh, or Fox News. Looking at everything from the Left and referring it in those terms will not make you a hero.

Posted by: Bobby Oliveira at September 10, 2006 6:24 PM

4) You're conflating my beliefs with what I think would be a prudentially reasonable compromise. Firstly, holding firm on the issue of rape (the only exception that I've explicitly mentioned in this thread, by the way, although I would add life of the mother) would exponentially decrease the likelihood of change. Secondly, I can find some justification for it in my reasoning. And lastly, I cannot believe otherwise than that a shift in the law and society that codified the value of the unborn would result in an increase of raped women who would not resort to abortion.

5) Are you reading what I've written on this? Paraphrase my opinion back to me, and perhaps I'll be able to correct your error. (Dispensing with the label may help.)

6) There're too many shades of "support" and "rights" for us to argue this point. I will state, however, that I support completely equal rights for gays, minorities, and women as for everybody else. However, I completely oppose the too-common effort in our society to elide real differences of circumstances so that gays, minorities, and women (or anybody else) can delude themselves that those real differences do not exist.

As for that oh-so-nifty "pro-birth" construction, I can only suggest that you're letting a buzzword direct you away from actual consideration of others' positions. I'm so pro-life that I'm pro-eternal-life. You and I likely disagree about how best we can help others once they're born.

Posted by: Justin Katz at September 10, 2006 9:31 PM

"Just so you know, I buy fur for women as gifts, I had steaks on the grill last night, and although I am a member of the Boston Aquarium, the sharks do a lot more for me then the whales ever did."

I'm not nearly as generous. Perhaps it would surprise you that I've never eaten veal or fish, and I hate steak. My favorite foods are pasta and salad.

"Yes, Reagan was so worried about abortion, all his appointees were pro-choice."

C. Everett Koop wasn't "pro-choice," unless the meaning of that word has also "evolved" over time, too? Someone's position on the right to life isn't very important when they're Secretary of the Treasury, Ambassador to Nepal, or the Director of the CIA.

"Again Will, you have chosen the rights of a group of cells over the rights of a woman. Everybody can see it, everybody knows what your real intent is."

No, what I am doing is not placing one person's right to live above another person's -- which ironically, is what you are advocating. My intent is to advocate for the protection of the innocent, who are unable to defend themselves, from those who would do them harm for overwhelmingly very selfish reasons.

Posted by: Will at September 11, 2006 4:01 AM

4.) The compromise is unacceptable since under the compromise, you could kill me now. Your compromise allows for discrimination, hence it doesn't work. The compromise also does not allow the woman to control her own body.

5.) I know you don't like the label, but once for the "exact meaning of the words, when the Founders' intent was the diametric opposite, what are we to call it then?

6.) It's hard to believe that you "support" homosexuals when you will not allow them to enjoy the same rights the rest of us have.

7.) Forgive me if I missed it, but haven't you come out against the aid for the abandoned child?

Posted by: Bobby Oliveira at September 11, 2006 10:23 AM

Dear Will,

Your last point gets us back to when "life" begins.

Rather than rehash our differences, I guess it's best to say that since we cannot come to an agreement on this point of consideration, we'll just end up going around in cirlces again.

Posted by: Bobby Oliveira at September 11, 2006 10:25 AM

4) What do you mean by "you could kill me now"? I know you're trying to maneuvre me into an untenable position, but it really shows a disregard for the flow of and consideration behind my argument to toss about such nonsequiters. The compromise (which, again, I support merely prudentially) doesn't mean that the child's has no, or even less, value. It simply means that, in such cases, the mother's claim to control over her own body has more standing (standing which, let's not forget, you believe to be total in all cases).

All the rest) I think we've passed the point of being able to communicate, as I have know idea how you're deriving your responses from that which I've previously written.

Posted by: Justin Katz at September 12, 2006 6:19 AM

(N.B., forgive typos in the above comment. I'm in a rush.)

Posted by: Justin Katz at September 12, 2006 6:21 AM

Dear Justin,

The question is simple:

If it's ok, for whatever reason, to destroy that which you believe to be alive, when does it become not ok?

You can't go from "it's murder" to the "mother has more standing" without raising a few eyebrows. By the way, why does the mother have more standing?

Posted by: Bobby Oliveira at September 12, 2006 4:27 PM

No, Bobby, what will cause eyebrows to rise is your disingenuous insistence that the law cannot discriminate between (what you see as) insignificant cell clusters. Of course, it's obvious that your strategy is to insist on the most extreme pro-life position in order to prevent compromises from broadening the pro-life base of support.

As it happens, I don't personally believe that raped women should abort their children, but emotions run very high on this in particular, and if a little bit of cooperation with my fellow citizens will result in a legal regime that will protect the vast majority of those who would otherwise be aborted, then so be it. And if you haven't figured out why I believe rape to be a "compromisable" segment, then I don't know how else I can make you understand (or make you admit that you do understand).

I think it would be a much more legitimate question for me to ask you, who argues for "sole viability" (i.e., without machines) why that would prevent a mother from pulling the plug on an adult child who, despite legal documentation requesting life support, requires machines for his existence. For that matter, why machines? Why not all external care? I, for example, require a simple machine — a bottle — to feed my infant son. If necessary, I would utilize a less-simple machine to keep his heart pumping. What's the difference? If we get rid of this foolish distinction of yours, we could kill the kids until they're able to feed themselves. Then we'll win women the right to choose post-birth abortions.

(Of course, the reason you insist on "no machines" is that you are perfectly aware that technology will rapidly make "viability outside the womb" something that can be achieved from conception on.)

Posted by: Justin Katz at September 12, 2006 5:30 PM

Dear Justin,

I hope technology moves us forward. The "no machine deal" is a quality of live/ let's not do Terry Scivao again.

Posted by: Bobby Oliveira at September 18, 2006 2:12 PM