Dismantling Civil Society

[Merlyn_LeRoy 72]

TheScout writes:

The right of the state comes into play when people try to deny the people of the state the power to enact certain measures, which is the right of the people of that state, and hence the state itself to do.

 

Earlier, you indicated that states should have the right to have slavery; so how does 51% voting to enslave the other 49% preserve the rights of those 49%?

 

you said that places with state churches are not egalitarian.

 

Where did I say that? Oh, I didn't. Don't lie and say I said something that I didn't say.

 

I meant to say the 5th does not inculde the word 'right.'

 

Correct. Because in the case of the 5th amendment, the constitution is talking about what the government can do, not what citizens can do. "No person shall be held..." -- that's a restriction on the government's power to arrest and hold citizens. "..unless..." -- it goes on to state under what conditions the government can do so. "..except in cases..." -- an exception to the earlier "unless", again this is addressing what the government can do. The government can't put people in double jeopardy, the government does not have the power to make you testify against yourself.

 

The 5th amendment is talking about how the power of the government is restricted, which is why it doesn't use the term "rights". It doesn't refer to what the government may or may not decide to do, but what the government SHALL do -- the government is required to act in the ways specified, because the 5th isn't talking about individual rights, it's talking about how the government can and cannot act.

 

Your apparent elitism regarding US politics is indeed quite unfortunate.

 

Well, if being against slavery and hanging Quakers is elitism, I'm pretty damn elite.

[TheScout 10]

"Earlier, you indicated that states should have the right to have slavery; so how does 51% voting to enslave the other 49% preserve the rights of those 49%?"

 

Well thats democracy, isn't it? Each state could spell out its provisions for slavery in the state constitution, made by the people of each state, not in a one size fits all national decree. Or do you just believe in democracy when it comes with results you like?

 

You know that in the United States such a case never came up. Instead slaves were only African slaves and their descendants, clearly not members of the politcal community.

 

You said, in regard to places with state religions that "It doesn't mean it's egalitarian regarding other religions, either." Yet I would say both countries mentioned are pretty much egalitarian even it regards to religion.

 

So about the 5th Amendment, are you saying I do not have the right to not be held for a crime without an indictment? Or that I do not have the right to not be "deprived of life, liberty, or property, without due process of law," or I do not have the right to just compensation for emienent domain?

 

What about the the 3rd. Do I have the right to not have soldiers quartered in my home? Or the 8th. Do I not have the right to be protected from cruel and unusual punishment.

 

Following your logic some up your 1st Amendment rights are not even 'rights.' I'm sure I don't have to quote it for you. But people do not have the right to freedom of religion. It merely says Congress can not make a law establishing a religion.

 

No being against slavery and hanging Quakers does not make one elitest. Thinking that the interpretation of the constitution does not come from the people of the each of the United States, but merely from a bunch of fickle highly educated lawyers and judges.

 

Remember Merlyn, just because the Supreme Court says something, does not mean it is true. This is the same court that came up with Plessy vs. Ferguson and Brown vs. Board of Education.

[TheScout 10]

Also, just for the record. I did not say I support slavery of the hanging of Quakers.

 

Merely the right of a people of a state through the democratic process to decide that they do.

[Merlyn_LeRoy 72]

TheScout writes:

Well thats democracy, isn't it?

 

Yes. And we don't have a democracy, we have a limited federal republic with rights that can't be infringed by a popular vote.

 

Or do you just believe in democracy when it comes with results you like?

 

I don't believe in democracy; I prefer what we have now.

 

You know that in the United States such a case never came up.

 

So? Colorado tried to insure that gays had fewer rights by a vote, and the supreme court ruled against it in Romer v. Evans. Not the same as slavery, but similar in that a majority attempted to reduce the rights of a minority, and failed.

 

You said, in regard to places with state religions that "It doesn't mean it's egalitarian regarding other religions, either." Yet I would say both countries mentioned are pretty much egalitarian even it regards to religion.

 

And how would you describe Iran, El Salvador, and Pakistan as regarding their state religions? State religions can be very repressive.

 

So about the 5th Amendment, are you saying I do not have the right to not be held for a crime without an indictment?

 

The 5th amendment states what powers the government has to hold you; it does not have the power to hold you without an indictment. The 5th is stated in terms of what powers the state has, not in what rights citizens have. While the 5th could have been written in terms of what rights citizens have, the authors decided to write it in terms of what powers the government has instead -- that's what it doesn't use the term "right" in the text, because the government doesn't have rights. That's what I keep trying to explain to you.

 

Remember Merlyn, just because the Supreme Court says something, does not mean it is true.

 

What does "true" even mean regarding an interpretation of a law? The people who wrote the law may not all agree on what it means, the people who voted for the law may not agree on what it means, the people enforcing the law may not agree on what it means, and the judges interpreting the law may not agree on what it means, so whose interpretation is the "true" one?

 

There really isn't one. What we have now gives the supreme court the final say in interpretation of the constitution. That's reality. I prefer to deal with reality. You can build your states-rights castles in the air, but I'm not going to live there, because it's in your imagination.

[TheScout 10]

It is a shame that you don't believe in democracy. How else did we create our "limited federal republic". It seems to me that the constitutions were drawn in a democratic fashion. Were the constitutions of the antebellum Southern states not republican though they included slavery? A republic can hold slaves. There have been many throughout history.

 

Your comparison of Colorado gays and African slaves is moot. The gays were citizens and entitled to the protections of them. The slaves were not.

 

I guess we can then agree that some places with state religions are fair and decent places, while some are not.

 

I appreciate you trying to explain me the concept of rights. However, just because something is not explicitly labeled as such in the constitution does not mean it is not so. I still think I have the right not to be held without an indictment. And the right not to have cruel or unusual punishments inflicted. The 9th Amendment recognizes that there are many rights that are not expressly named in the constitution.

 

Granted the true meaning of a law is hard to determine. We do not all agree, let alone the drafters or the ratifiers. However your extreme reliance on the Supreme Court is problematic. Are you such a doctrinaire follower of its rules that you think all its decisons are constitutionally correct? Would you have supported the rights of states to segregate schools post-Plessy?

 

You may refer to the reality of the Supreme Court. But I prefer to deal with the reality of the aspirations of the American people. When they voice their desires through their elected representatives in the state legislatures. That is how a republic works too.

 

In the words of the great early statesman John Randolph The power, which has the right of passing, without appeal, on the validity of your laws is your sovereign.

 

Its not like you ever try to build great secular castles in the air either . . .

[Merlyn_LeRoy 72]

It is a shame that you don't believe in democracy.

 

I prefer the system we have now, which does not permit 51% to vote away the rights of 49% with mere legislation.

 

How else did we create our "limited federal republic".

 

As I hear, it involved the use of force.

 

Were the constitutions of the antebellum Southern states not republican though they included slavery?

 

They had the power to institute slavery back then; they don't now. Yes, they were part of our limited federal republic. Part of the problem is that they didn't have universal citizenship back then.

 

The gays were citizens and entitled to the protections of them. The slaves were not.

 

But haven't you been saying that states still have the "right" (your term; I would use "power") to impose slavery by vote? Colorado tried to remove some rights from gays by vote, and the supreme court ruled that they couldn't do so.

 

just because something is not explicitly labeled as such in the constitution does not mean it is not so.

 

But STATES do not have rights. Individuals have rights. You keep saying states have rights - they don't. The constitution does not list any "rights" for states. They talk about powers, which are different.

 

your extreme reliance on the Supreme Court is problematic.

 

I deal with reality.

 

Would you have supported the rights of states to segregate schools post-Plessy?

 

States don't have rights. However, after Plessy (and before Brown v. bd of ed), states certainly had the power to enforce official segregation. That's dealing with reality.

 

I prefer to deal with the reality of the aspirations of the American people. When they voice their desires through their elected representatives in the state legislatures. That is how a republic works too.

 

That's true. However, since we don't have a democracy, but a limited federal republic, people's rights can't just be voted away by 51% of the voting public.

[TheScout 10]

Our limited federal republic was created by force? I seem to recall the Constitutional Convention and several state ratifying conventions in which democratically elected representatives framed our form of government.

 

It seems that you do not favor majority rule? Or is that only under circumstances you agree with? Does majority rule not apply when we talk of some peoples rights? Who decides when and where majority rule applies? It is good you know enough to tell us when majority rule applies.

 

 

You write of the antebellum Southern states, "They had the power to institute slavery back then; they don't now." So you agree that slavery is not incompatible with a republic then.

 

As I mentioned before in regards to states rights. Obviouisly all agree that the perogatives of any government come from the people. The state is merely a manifestation of the people. The right of the state comes into play when people try to deny the people of the state the power to enact certain measures, which is the right of the people of that state, and hence the state itself to do. Our constitution leaves particular powers to the people of the several states, and it is their right to use them. So by taking away states rights, you actually threaten the rights of the people.

 

All the early statesman that talked of states rights? Were they all delusional? It seems many people in the early republic were quite sure states had rights. When did they go away?

 

So if you deal with reality, where does reality start? Before Engel v. Vitale, did you believe in prayer in schools? That was reality back then? Or does reality only come into play when decisions come up that you like?

 

Final question? Do you trust the American people to make good decisions through their elected representatives or not? It seems that you thinkt he people need a censor on their decisions. I do not.

[Guest OldGreyEagle]

Back a few years ago I was teaching a Citizenship in the Nation merit badge class and asked what type of government the US had and got the average answer of living in a democracy. And I was quick to point out we actually lived in a Representative Republic (I didn't differentiate any further, but yes, its limited etc). We talked about a democracy, a true where the majority rules at all times and republic where representatives of the people governed work out the system.

 

The next week I received a phone call from a bemused mother, seems her son started Civics class in middle school and when the teacher said the US goverment was a democracy, he quickly reponded, "Oh no, Mr GreyEagle says we live in a Representative Republic" and proceeded to explain the differences between a Democracy and Republic. From all accounts the Teacher was impressed and when they got to the systems of checks and balances on the three divisions of the government, the teacher asked if her version fit Mr GreyEagles, which it did and I know we were both relieved.

 

In the US we say we are a civilized society because the populace beleives in the rule of law. But I wonder if this is not changing. On this forum, people will talk about say the issue of where to have the national Jamboree and people post that it stays at AP Hill and with the "current Supreme Court" make-up. Or that with the current Supreme Court, we are OK. But, should any organization have to rely on the make up of any court to insure its long term survival? Yes, we are ok now because we have a conservatve leaning Supreme Court, yes I know some claim its liberal, but what the heck, this is my post. What after the next election a Democrat becomes president and one Justice retires, another falls ill and two are killed in a traffic accident. The "leanings" of the Court could shift dramatically and then what? We moan for the good old days? Isnt whats right today going to be whats right next year? If changing 2-4 people can make the difference between making wrong right and right wrong, maybe we arent as civilized as we thought and the rule of law is whats convenient now

[Merlyn_LeRoy 72]

Our limited federal republic was created by force?

 

Yes. We used to be a British colony.

 

It seems that you do not favor majority rule?

 

Not when 51% has the power to enslave the other 49%. But we don't have that. The tyranny of the majority was something the authors of the constitution sought to avoid.

 

All the early statesman that talked of states rights? Were they all delusional?

 

The constitution does not give states "rights". They were, at best, using sloppy terminology.

 

So if you deal with reality, where does reality start? Before Engel v. Vitale, did you believe in prayer in schools?

 

You don't seem to grasp the difference between:

1) stating what the law is (or what the supreme court says it is); and

2) agreeing with the law

 

1 & 2 are two entirely different things. You're conflating them. There's no connection.

 

For example, I think the court erred in Dale v. BSA. The BSA's decades-long practice of chartering units to public schools was enough in my opinion to make it a public accommodation. However, the court ruled that the BSA is a private organization. You'll note that I call the BSA a private organization. Because, legally, it is, regardless of my opinion on the wisdom or accuracy of that status.

[TheScout 10]

I'm pretty sure the army which freed us from the Great Britain did not also create a federal republic. I think the Congress created the Articles of Confederation then the Convention created the Constitution through democratic means.

 

At least we can agree that republics can hold slaves. All people do not have to have the same rights to have republican government.

 

Also a sham that you believe in majority rule only in certain circumstances. So I ask again, how do we know when this does not apply? Is that only under circumstances you agree with? Does majority rule not apply when we talk of some peoples rights? Who decides when and where majority rule applies? It is good you know enough to tell us when majority rule applies.

 

Your argument that states do not have rights is increasing absurd. So Madiosn, Jefferson, Calhoun, Hamilton, and all the others who spoke of states rights were "sloppy" in their language. Too bad you weren't around to correct such fools.

 

I do see the difference between stating what the law is an agreeing with it. However I think the Supreme Court can make "bad law" just like legislatures can. I am sure you will agree that laws that states on the books are "bad law" if they are overturned by court decisions but not repealed. Same can apply to Supreme Court dictates. I think the cases "incorporating" the Bill of Rights are bad law since it is derived from a false constitutional assumption.

[Merlyn_LeRoy 72]

Well, this is getting tedious, even by my standards. I have no great desire to explain why civil rights should not be abridgable by a mere majority vote -- suffice to say that restriction is part of the current US government. As for Madison et al. referring to states having rights, when it came to writing the actual constitution, they never referred to states having rights, only powers. Only people are described as having rights. And, if anything, I think the court hasn't gone far enough in incorporation of the 14th.

[TheScout 10]

Gee, I am sorry you have to teach foolish me about the constitution.

 

Madison et al. refered to states rights many times, though not in the document itself. I think they exist. Everyone in the first 75 years of this country knew they existed. Where did they go?

 

It is a shame you think incorporation should go farther. You should get back to reality.

 

 

OldGreyEagle, you make good points about the Supreme Court.

[Merlyn_LeRoy 72]

Well, you keep saying states have rights, when the constitution doesn't say they have rights, only powers. Usually, it's not a big deal to use the phrase "states' rights" when talking about a state's powers, but if you're talking about a citizen's rights vs. a state's "rights" (as we were), it's incorrect, because it's really a citizen's rights vs. a state's powers. This is not a trivial distinction, because if two actual rights conflict, one or both is likely to be limited so both can coexist, so if a court considered a citizen's right vs. a genuine state's right, the court might find that the state's right takes precidence, and limit the citizen's right. But the courts will address it as a citizen's rights vs. a state's powers, where it's much harder for the state to prevail. That's one reason why it's an important distinction.

[TheScout 10]

Merlyn, I wonder what your school of constitutional interpretation is? You always seemed like a living document type. Now you seem to be quite a literalist when it suits you.

 

Also, you have yet to answer my two questions?

 

How do we know when majority rule applies and when it doesn't?

 

And, do you trust the American people to make wise decisions in legislatures through their elected representatives?

[packsaddle 753]

Despite the tedium, and I agree on that...it is an interesting contrast that one seems to advocate subordinating individual rights to government, and the other seems to advocate limits to the power of a government to limit individual rights. When I put these advocacy positions aside the respective personalities, I am tempted to add this to my collection of delicious ironies. Thanks guys!