Why ignore the 9th and 10th Amendments?

[alexwcovington]

Amendment IX

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

Amendment 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.

---

Sure, the 9th Amendment is vague. But it is vague in a good way-- a way that allows judges to rule in favour of citizens treated unjustly and certify that they have rights that aren't definitely enumerated. Yet to my knowledge this have never been done. Every civil rights ruling has been defined in terms of the other amendments...

The tenth amendment is certainly the most ignored. Congress runs a 50-state extortion ring, threatening to withold education or highway money if the states do not comply... this seems to me to be a blatant violation of the 10th Amendment. This is how they keep web filters in our libraries... no child left behind, etc.

These are just some nagging issues I've had.

[Mattforclark]

1. Right to travel

IIRC the right to travel is protected under the 9th amendment.

[camero]

40. Yep

even to Cuba. Travel there would most certainly help to bring Democracy to Cuba. But Bush is not interested in Democracy.

[Feanorcurufinwe]

2. I'm with you 100%

it's something I've never understood either.

[Zomby Woof]

3. 9th Amendment

The 9th Amendment is the source of that most cherished of unenumerated rights: privacy. It was the cornerstone of the Roe v. Wade decision. The fascists will tell you "there is no such right", but they are hedging their bets that most Americans don't understand the 9th. Or, the RWers are just ignorant sonsabitches. ;-)

As for the 10th, it is greatly misused by the "state's rights" crowd. Notice that it doesn't grant states rights, it grants them POWERS. A major difference. Constitutionally, there is no such thing as "state's rights". That is one of the most pervasive myths of the modern day anti-federalists.

[alexwcovington]

4. Rights, powers...

The terms are fairly interchangeable if you're talking about what states can and cannot do.

[Zomby Woof]

10. not true

Powers are things states can DO, like issue driver's licenses and the like.

But states cannot do things that override federal powers, like issue coins, create a standing army, etc.

Rights can only be granted to individuals, not government entities.

I may have the right to free speech, as granted in the 1st amendment, but I do not have the power of free speech. See the difference?

As for the 4th in RvW, that may be true, but the 9th is the most common arbiter of privacy rights. Check any basic civics book.

[alexwcovington]

11. The meaning of language lies in context not just the sum of a statement

"state's rights" is a concept with a context consistent with the idea of "power." While lexicographers may balk at the interchange, it is not such a great misconception.

[Zomby Woof]

14. I understand where you are coming from

But I am strictly going by what the history of constitutional law and the republic dictates, not by my own prejudices or semantic lenses.

[alexwcovington]

17. You are going to have to make a better case

than debating the definition of the word "right."

This is my take on the situation -- the Federal government is abusing its powerful position by forcing states dependent on federal aid to submit to whims. Since no state is EVER going to abandon the federal money - the process of the unfunded mandate effectively turns every state legislature into a puppet regime.

[Zomby Woof]

21. unfunded mandates?

I do have a problem with those, in only as much as they should put up or shut up with the funds (the feds). But the damned thing is, the states seem to have no Constitutional recourse, and in effect, are just instruments for the will of the feds. It is one of those odd loophole things, although SOME unfunded mandates have SOME (even if thin) Constitutional rationale.

I recall the blackmail of the Reagan administration in the mid-80's. We'll cut off your federal highway funds if you don't raise your drinking ages! Coming from the party of "anti-big government", you can only expect the worst sort of hypocrisy from those clowns.

So the sad thing is, I am not sure what recourse the states have, since the 10th amendment always comes down to the rights/powers definition dichotomy. There are times when the fear of tyranny by the feds IS very very justified, and materializes in the least likely places.

Anyway, I am leaving the thread for the night, but thanks for bringing up a good thread. I am a sucker for civil liberties and Bill of Rights discussions.

[alexwcovington]

5. And on Roe v. Wade

They pulled the right to privacy out of the 4th Amendment if I recall... they didn't justify it using the 9th Amendment.

[Yupster]

6. There is no 10th Amendment

It just doesn't exist anymore. The federal government is now empowered to do anything it wants to do in any state. In my opinion, it died with the passage of the 17th Amendment. Some say it died even earlier on the battlefield at Appomattox.

There's still hope for the Ninth Amendment in my opinion.

[alexwcovington]

7. Appomattox wasn't actually a battlefield

And the 17th Amendment allowed direct election of Senators.

WTF?

[Yupster]

22. Appomatox was a battlefield

On the morning of April 9, 1965, General Lee found his Army of Northern Virginia's breakout attempt blocked by federal cavalry. General Gordon's Second Corps was ordered to break through and reopen the road to Lynchburg with cavalry support. The federal cavalry was pushed out of the way, but in back of them was an entire corps of federal infantry. The Confederate cavalry actually did open the road for a time, but General Gordon sent back notice to General Lee that his corps was fought out and could make no more headway without significant help from Genarl Longstreet's First Corps. General Lee knew Longstreet's corps had all it could handle protecting the rear and flanks of the Confederate pocket.

General Lee ordered the cavalry and Second Corps back to their starting positions. "Then there is nothing left but for me to go see General Grant," Lee reportedly said, and by evening, the Army of Northern Virginia was surrendered, and the war was on its way to being over.

It wasn't Gettysburg, but at the Battle of Appomattox Court House the Army of Nothern Virginia gave all that it had left.

As far as the 17th Amendment, it is forgotten today as simple housekeeping, but it was vitally important to keeping the main power of government within the states.

When the Constitution was first set up, the states chose the president through their legislatures' power to choose electors.

The Constitution does not envisage a popular vote for president, but by the Civil War, every state but one had gone to a popular vote for president.

The senators however were still chosen by the state legislatures, and this was their insurance policy that Washington would not make any laws that worked against the interests of the states. The senate, chosen by the state legislatures, could slow down or stop any legislation unpopular with the states.

Once the 17th Amendment was passed, the states lost their last foothold in the federal government as the president, senators and House members were all popularly elected.

Te federal government has been able to pretty much do as it pleased ever since.

[Zomby Woof]

32. direct election of senators

That was a step towards democratic reform. The "equal representation" assigned the Senate in the framing of the Constitution was a concession to the small states who feared the large states (like Virginia) would wield way too much power in Congress. The opposite nearly ended up occurring, as the Senate is the upper house, and states with very small populations were able to dictate policy over states with much larger populations. The 17th Amendment wasn't going to correct that flaw, because it was preferable to 100% domination by large states, but it helped make the ENTIRE Congress accountable to the people, rather than to the state legislatures. When the Constitution was drafted, democracy wasn't what the framers had in mind, being that only white male property owners over 21 could vote. So having the states choose their Senators, plus having an electoral college, were safeguards against "mob rule", as Hamilton greatly feared.

The 17th Amendment was just a link in the evolutionary chain, like the amendments freeing slaves and giving black Americans the right to vote, as well as women and Indians also later gaining that right, that allowed America to be more democratic. Taking away the states' powers to appoint Senators may have weakened them (although I doubt if it did), but it certainly transferred that power to the people, which advanced the democratic ideal, since after all, we are supposed to be a republic of, by, and for the people, right?

[Yupster]

37. With your quote of

"make the ENTIRE Congress accountable to the people, rather than to the state legislatures."

You don't think that change reduced the power of the states?

That doesn't make sense to me. If something was accountable to me, and now it isn't any more, hasn't my power been weakened?

[TacticalPeek]

43. "popular vote for president"

I understand that you mean popular vote for presidential electors.

However, what the state legislatures can give, they can take away (in constitutional principle).

Even at this point in time, the Constitution gives the state legislatures the sole power to appoint presidential electors:

"in such Manner as the Legislature thereof may direct" - Art. 2, Sec. 1

This point was brought home in a striking manner in 2000 when the Florida solons were preparing to put their smelly foot down if things didn't go aWol's way. Had they done so, the only defense may have been arguing 'ex post facto' blahblah, but there were all the makings of your regulation issue 'Constitutional crisis'.

I've been meaning to post a simple, proposed Constitutional Amendment, that would be like the 17th, and require popular election of presidential electors. Oh well, some rainy day.

[Yupster]

44. Good point Tactical

While the state legislatures don't use their power to select electors, they do in fact still have that power.

[Zomby Woof]

13. um, what?

Are you speaking of "state's rights"? There has never been such thing. The anti-federalists kept that myth alive, until it became so accepted in mainstream discourse, that states actually believed that they could illegally insurrect and secede from the Union when things didn't go their way. The Constitution did not set it itself up with the keys to the republic's undoing by allowing for such actions as secession. But because the word "insurrection" is specified, and secession isn't, the anti-feds got their way eventually by starting an illegal mass insurrection - which the Constitution is compelled to quell. The Confederacy perverted the Constitution in the name of "saving" it. Powers (10th) do not equal rights. States have certain powers, but they do not have, unlike you or me are supposed to have - rights.

The Constitution was set up by federalists as the supreme law of the land. The federal government ALWAYS has had precedence over the states. It is the great tragedy of our history that so much blood was shed in order to make federal supremacy stand up as more than a theory, but as the fact it always was. But the freedom of enslaved human beings (once sanctioned, and then justly outlawed, by the very same document because of all that blood, redeeming the tragedy) brought the once-divided republic one step closer to achieving its true ideals. One nation. One people.

[alexwcovington]

18. Well...

The Constitution was intended to form a stronger central government than under the Confederation -- but it was not designed entirely strip states of their powers.

[Kitsune]

34. re: 10th Amendment and secession

Since the federal government doesn't have the power to kick states out of the union, wouldn't that mean that, under the 10th Amendment, the power to leave is reserved to the state?

I asked my civics professor in community college this, and he said "No" but couldn't give me a real answer past that.

[Yupster]

38. The correct answer is

states do not have the right to seceed because they'll get their asses kicked if they do.

Actually I think there was a Supreme Court decision after the war that ruled secession unconstitutional, but I don't know the details.

[AP]

8. Comments

- Doesn't the 9th say that the constitution is a floor, not a ceiling. The states can give people greater rights, but cannot deny rights provided in the consitution.

- the 10th just says that Constitution is no broader than what's enumerated in it, and what can be inferred from those rights. For instance, the laws of wills and estates are not directly enumerated in the consitution, and there isn't much in the consitution from which it could be inferred that consitutional rights apply.

If the 10th A is ignored, it's probably because congress knows anough not to try to push against its limits. Would Congress even bother to try to pass a law telling the states what the requirments are for witnessing a will in California? I doubt it. However, it's not really ignored. It's getting a lot of attention to help states avoid having to comply with federal laws. (Right? Wasn't that FL TM infringement claim under the 10th A?)

The Fed gov't isn't obligated to give states any money for transportation, so it's not really upsetting the 10th A when it puts conditions on what you have to do to receive the money. Anyway, it's the commerce clause in the constitution which has been stretched beyond logic, but is slowly contracting back to more resonable limits.

[alexwcovington]

12. Indeed the commerce clause has

I am someone who would like to see state-level communications regulations more stringent than federal rules...

[Character Assassin]

36. The tenth is completely ignored. Starting with the WOD....

and degrading downwards from there.

[Mike Niendorff]

9. Note the intersection of the 9th and the 10th Amendments ...

... specifically identified in the final four words of the 10th Amendment : "or to the people".

The question of which 10th Amendment powers are reserved "to the states respectively" vs. which are reserved "to the people" is huge, imho, because the 9th Amendment explicitly states that there are protected rights *beyond* those specifically enumerated in the Constitution, and that these rights are retained by "the people", not by "the states". The final four words of the 10th Amendment underscore this fact.

Furthermore, since the 9th Amendment is part of the Federal Constitution, the infringement of any *non-enumerated* right protected under that Amendment establishes a clear basis for federal jurisdiction ("federal question" jurisdiction, specifically).

Thus, not only does the 9th Amendment establish a bound on the powers "reserved to the states", but it also establishes a basis for federal jurisdiction in any case where a state crosses the line and treads into protected -- but non-enumerated -- territory.

It's a fascinating question, legally speaking, and I'm sure people will be debating it until the cows come home. At minimum, however, it shows that a lot of the so-called "states' rights" arguments that the RW likes to make -- arguments that states can do anything that the Constitution doesn't explicitly forbid them from doing -- it shows that these arguments are, to put it mildly, complete and utter bullshit.


MDN

[Zomby Woof]

15. thank you!

Your last paragraph sums up what I was trying to get at in my above posts.

[alexwcovington]

16. Ok.

So the federal goverment can protect enumerated civil rights. Fine. It protects the other ones (or at least it CAN).

My case was against unfunded mandate laws. Laws like No Child Left Behind and CIPA. You don't address this issue.

[Mike Niendorff]

45. *sigh*

Look, I didn't address your "issue" because, frankly, I think it's a complete non-issue.

Your argument boils down to one particular claim: that the federal government does not have the authority to take states' behavior into account when making spending decisions. There is no support for that position in the 9th Amendment, the 10th Amendment or anywhere else in the Constitution.

Look in any Constitutional Law casebook under "federal spending power" (or the equivalent) and you'll find that this issue was long ago litigated up to the SCOTUS, where they ruled exactly as I've stated : Congress has the authority to attach "strings" to federal money, and to deny federal money to states whose behavior does not measure up to Congress' requirements.

That being said, I do think the intersection of the 9th and 10th Amendments is *extremely* interesting, for reasons stated in my previous post.


MDN

[Jane Roe]

46. The vagaries of stare decisis . . .

If you look in your Con Law book, you will also probably find decisions like Plessy v Ferguson, Lochner v. NY and Bowers v. Hardwick.

Respectfully, I wouldn't look at those federal spending decisions as being written in stone (lookin' at you: Wickard v. Fillburn).

[Mike Niendorff]

47. Translation: "cases can be overturned".

Of course they can. That's why it's so important to keep whack-job right-wing judicial activists as far from the federal court system as is humanly possible (and, yes, I think everyone with even half a brain knows that the RW is currently setting its sights on the Commerce Clause (Wickard, et al) in order to slash the hell out of the federal government's power to regulate labor standards. Hello 19th Century).

MDN

[Jane Roe]

49. Sort of agree

three points of "however," though:

1. There is a world of impact-on-interstate commerce difference between the labor policies of interstate employers and the situation in Wickard. Just because one thinks that Wickard and some of its zanier progeny should be reversed does not and should not mean that the government has no interstate commerce powers in the labor area. It is fair and reasonable to say that the federal government should be able to regulate Walmart, but not Wickard.

2. In my view, our biggest single labor standards problem is that we impose no labor standards for imported goods. There is no barrier to federal government regulation on commerce with foreign nations, even if the commerce clause power is rolled way back in the interstate commerce area.

and

3. (Most relevant to this discussion): If the federal government were denied power to regulate interstate commerce, then state power to do this regulation would increase to congruently fill the power vacuum. Sure, some states would screw the workers, but if employers in those yucky states wanted to ship goods beyond the state borders then: (see point #1 above).

[Mike Niendorff]

50. (response)

So, to sum up:

Yes, the RW and its judicial activists are now trying to roll back the clock on the Commerce Clause.
Yes, they want to significantly cut back on the federal government's ability to regulate labor standards.
Yes, they want to exempt certain classes of producers (a la Wickard) from federal regulation alltogether.

But, you claim that this isn't a big deal because:

The states will fill in the gaps.
Well, ok ... the states won't really fill in the gaps, but only "some" states would "screw the workers", and that makes everything better.
Yeah, ok ... it doesn't really make everything better, but Congress is already letting foreign companies get away with screwing their workers, so why shouldn't God-Fearing American companies be free to do the same thing?
Ok ... maybe judicial policy shouldn't be tailored to help businesses "screw the workers", but at least Congress will still be able to step in just as soon as their goods cross state lines.
Assuming RW judicial activists allow it, of course.
And, ok ... yes, they clearly have their sights set on the 1910's, but I'm sure that cases like Dagenhart aren't really a part of that design ... even though it did bar Congress from exercising this exact same Commerce Clause power even on such basic matters as *child labor*.

So, yeah, I guess we can all be confident that there's no anti-labor agenda going on here. It's all just "common sense reform", just like RW attacks on Social Security and Medicare. Nope, nothing to see here, folks, just keep moving along.


MDN

[Jane Roe]

51. I can sum up my views more fairly . . .

Whether government functions are performed on a state or federal level is a content-neutral thing. States rights isn't inherently liberal or conservative. Over the long run, the balance between federal and state power has more to do with how much variation there are in the laws rather than the political "center of gravity" of the law(s) themselves.

We should have more states rights when we can because flexibility and variation are generally good things in the law because it is difficult to say what balance the laws should strike between conflicting imperatives on personal issues, so it is nice to have 50 experiments going at any one time on any one divisive issue.

On the other hand, the federal government is sometimes required because of the need for co-ordinated action, eg foreign policy, foreign trade policy, interstate commerce, interstate pollution, etc.

None of this has anything with right versus left wing or liberal versus conservative. Sometimes one side or the other thinks they can get mileage out of states rights or expansion of federal power on a certain a political area. However, these political advantages are (in my view) transient. The politicization of federalism questions often prevents these questions from being wisely decided by balancing the conflicting procedural imperatives I have identified above.

To put it another way: when federalism questions come up, I like to ask myself how the law(s) might work out to accomodate everybody thru democratic process(es) over the next 50 years, rather than asking what answer will most hurt the Chimp in '04 or his brother Jeb in '08.

[Jane Roe]

19. My humble opinion

An historical accident was our undoing here. that historical accident was the intersection of the slavery issue and the right to secede issue.

In 1860, the Southern States were wrong (morally) about slavery, but they were right that they had a Constitutional right to secede from the Union. Conversely, the North was correct about slavery, but wrong in denying secession rights.

Once states lost the right to secede through the Civil War, they lost all leverage against the Federal government and the Constitutional balance attempted by the Ninth and Tenth Amendments was irretrievably upset.

One wonders what would have happened if the North would have let the South secede and then joined Europe in an economic boycott against the newly-independent Southern states. Sure, slavery would have lasted a bit longer, but I don't think it would have lasted much longer. On the other hand, states would have retained the right to enforce the Tenth Amendment by (threat of) secession. It is also intersting to ponder whether present day North American blacks and whites would have be better off if slavery had died a more gradual, natural death in the South. I guess we'll never know.

Maybe a state should bring a claim in Federal Court that they have a right to secede based on Tenth Amendment violations. That might be a good way to re-establish the right of secession without another bloody war. This strategy probably won't work however, because everybody is still too keenly aware about how morally wrong certain states were on the slavery issue.

Once a law professor (appointed the 9th Cir. Court of Appeals in the mid 90s) cited the Supreme Court opinion that argues that the Tenth Amendment is a tautology and therefore means nothing. I disagreed, explaining that "A is A" is a tautology, but it means something by implication -- specifically, it means that "A" exists or at least should exist ("A" being analogous to reserved powers). Sadly, the professor had no response for me.

[alexwcovington]

20. That might be the case

But I wonder just how well things would have went down...

It took the Emancipation Proclamation to keep Europe from trading with the CSA... and I doubt it would have happened had the war not broken out.

[Jane Roe]

23. More fanciful speculation

I do think that Europe would have boycotted quicker absent the Civil War, but of course, I am way out speculation-land on that.

The big risk is that the continuing large-scale economic model of the seceded Southern States would have provided teleological support for slavery to linger longer (even to the present day?) than it did elsewhere in the hemisphere and the world. Also, I wonder which border states would have seceded if faced with a choice between peaceful secession or else no more slavery circa 1861. This hypothetical slave nation might have been larger than the Confederacy was.

Edit add: Also, I might be a little bit too optimistic about late 19th century Europe given the fact that the present day US has so few compunctions about slavery-like labor conditions in far-off lands.

[Yupster]

26. Just my speculative opinion of course

If secession had been allowed to occur peacefully, I think the border states, all of them, would have joined the Confederacy. The reason is that they felt bullied by the north before the war. I think the choice would be either joining the Confederacy or being the only southern state in a Union of northern states. I don't think that would leave any choice.

The only one I would have any doubt of was Missouri. Perhaps there was an anti-slavery majority there before the war. I sure don't think so though. Lincoln got 10 % of the vote there and came in fourth.

The other interesting state to me was Delaware. It voted for Breckinridge in 1860 though, and didn't pass the 13th Amendment outlawing slavery until the 1960's! so I really don't have any doubt about them either.

Interestingly maybe to some.

I was talking to our local Justice of the Peace who's an African-American about a year ago, and I asked him what he thought of the following scenario... What if slavery would be ended by 1880 peacefully, would he think that would be better than fighting the Civil War and having 600,000 people killed. He thought quite a bit, and said he'd have to think some more. He called me the next day and said nope, there comes a time when people have waited enough, and he thought he would recommend fighting the war.

I thought that was quite interesting. I'm a stock-broker, and was in his office telling him how his money was doing at the time. We end up talking about all kinds of stuff though.

[Jane Roe]

27. I think I will defer to your friend on this one then.

My ancestors didn't get to the US until they felt compelled to run from the Bolsheviks and Nazis so I am definitely out of my depth in the institutional wisdom department here.

[Yupster]

24. If anyone had argued

at the time of the Constitution's Ratification, that once ratified, a state's decision would be permanent, and any attempt to leave the Union would be met with armed invasion, then I don't think there's any question that the Constitution would never have been ratified. It barely was ratified anyway.

I think the states did have a right to secession, by common sense if no other reason. The states agreed to peacefully join, and they could peacefully leave.

As for the Tenth Amendment, it states in full...

"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."

To me that's a pretty simple statement. If the Constitution doesn't specifically give a power to anyone, then it should go to the states, if anyone. To say that the sentence limits the powers of the states seems to turn its meaning right onto its head.

Also, on the right to privacy, I thought the Supreme Court discovered that right in a penundrum between the rights of the 14th and 9th Amendments. An absolutely ridiculous decision in my opinion, and I'm pro-choice.

[Jane Roe]

25. Where in the Constitution would you have found the prochoice right?

I know "the prochoice right" is awkward, but the more correct phrase "the qualified right to abortion outlined in Roe v Wade" might not go over well on this board.

[Yupster]

28. My opinion

Since it is not listed or even hinted at anywhere in the Constitution, the Tenth Amendment should have prevailed and each state should write its own laws pertaining to the subject.

That's how it was before Roe vs Wade.

If that were the case today, I believe at least 48 states would have legal abortions today. Utah probably wouldn't, and I'll allow for one more wild card state.

The idea that the Constitution garantees a right to an abortion in the third month, but not necessarily in the fourth month is just making stuff up out of the air. The Constitution says no such thing, or anything close to it.

And the Fourteenth Amendment was passed for three reasons all having to do with the end of the Civil War.

1. To make freed slaves citizens of the states in which they reside.
2. To cancel the Confederate debt.
3. To stop Confederate leaders from serving in the US government.

Stretching that to cover abortions is just making stuff up as you go along. Maybe you agree with the decision so you think that's okay.

Well, next time it might be a conservative court which decides that the 21st Amendment (repeal of Prohibition) gives the government the right to deport the families of people who dodge the draft.

I don't like courts making things up from penumbra.

[Jane Roe]

29. I agree completely and now -- divorce law.

In the past I have found these views to be unpopular with both pro- and anti-choicers, so it is nice to meet someone who agrees.

I usually like to bring up the example of divorce laws in this context. A long time ago in the US, divorce laws used to be very contentious and also used to work out unfairly for spouses. Nevertheless, the issue of divorce law was maintained at the state level. Although divorce laws may not be perfectly fair even today, these laws have been worked out in a generally liberal and reasonably fair way. It is an issue we don't even discuss much anymore.

I think the fact that divorce laws were worked out state-by-state and over time was the thing that prevented divorce law issues from becoming a nation-rending, polarizing conflict in the US.

If conflict over overly-conservative divorce law became an issue today (instead of 50 years ago), I don't think the federal government would be wise enough to keep its nose out of the issue.

[iverglas]

53. how about the obvious place?

"Where in the Constitution would you have found the prochoice right?"


Me, I don't agree with the US SC's decision in Roe v. Wade. I think it completely fails to assert a sound basis for prohibiting interference in women's reproductive choices (when such sound basis obviously exists), or to state any justification for the interference in those choices that it permitted (not to say that I think there might not, in some imaginable situation, be such justification, simply that the US SC completely failed to state any.)

I think it's just all very clear, and right there in your constitution:

V. No person shall ... be deprived of life, liberty, or property, without due process of law; ...

XIV. No state shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The first woman who died of a complication of pregnancy or childbirth who had been prevented from terminating the pregnancy would have been "deprived of life without due process of law". Just exactly as would be the first person who died of starvation who had been prevented from buying groceries.

Every woman who was compelled to continue a pregnancy against her will would have been "deprived of liberty without due process of law". Just exactly as would be anyone who was compelled to do anything else s/he chose to do that the state could not justify prohibiting him/her from doing.

Unless, of course, somebody does manage to come up with that justification thingy, the requisite state interest etc., that the US SC asserted but did not demonstrate in Roe, something that would meet that equal protection requirement ... given that I'm unaware of anyone else being compelled to assume such risks to their life and deprivations of liberty, say by being compelled to donate their spare blood or kidneys to save someone else's life, maybe.

You being in Canada and all these days, you might want to learn how it's done when it's done right:
http://www.lexum.umontreal.ca/csc-scc/en/pub/1988/vol1/html/1988scr1_0030.html
R. v. Morgentaler, <1988> 1 S.C.R. 30.


Some people aren't fond of courts "making things up from penumbra". A lot of people in the modern world can't figure out why USAmericans think that anything needs to be "made up" at all, when they are supposedly, and apparently, guaranteed the right to life and right to liberty in their constitution. Compelling people to assume risks to their lives that they do not wish to assume, without very compelling justification, just isn't consistent with a "right to life" as we understand it; nor is compelling people to live their lives according to someone else's notion of how they should do it that conflicts with their own, again without said very compelling justification, consistent with a "right to liberty".

Me, I'm not fond of the idea that pregnant women aren't entitled to exercise the same rights, to decide for themselves what risk to their lives they wish to assume and what restrictions on their liberty they wish to accept, that anyone else is entitled to exercise. Who else gets a "qualified" right to life and liberty?? Thankfully, my society and Supreme Court agree.

Speaking of which ... that Cdn flag. I understand you lived for many years in the US and reside in Canada at present. You Canadian? If not, you might recall that we have reasons for being a tad suspicious about folks who use our national bits and bobs to identify themselves when they're not really ones of us. Mossad assassins and the like, you know. Makes life difficult for us when the rest of the world can't tell that people saying or doing kinda un-Cdn things aren't really Cdn.

.

[Jane Roe]

57. Proudly yet I wave the flag of my adopted homeland.

I wasn't aware that there was any kind of Canadian rules about what opinions US citizens were supposed to have about questions of US law. I respectfully request a link to these rules if you have one. Until then, I will continue to express my opinions on US law as I see fit. Hopefully I will not be deported for this.

One good thing about the US is that it does allow Canadians to express their opinions about US law with relative impunity. Perhaps Canada will someday embrace a reciprocal freedom. Until then, I will be sure to keep mum about Canadian law.

Your views on due process are duly noted, but please keep in mind that due process rights are merely that: rules ensuring procedural safeguards. Even a due-process-based prochoice right would leave the door open to abortion restrictions -- perhaps a lot more restrictions than are currently allowed under Roe v. Wade. It will also be interesting to see what will happen when antichoicers start getting savvy enough to bring Fifth Amendment claims on behalf of late term aborted fetuses.

As far as Mossad assassins go: For the record, I think they take the wrong approach and I have some serious issues with their ideals.

[iverglas]

58. flying straw and herrings

My goodness. One would almost think, from reading your post, that I had said something about "what opinions US citizens were supposed to have about questions of US law".

And here I thought it was so very plain, from reading my post, that what I was inquiring about was your use of the Cdn flag, which normally identifies something/someone actually Canadian, as an issue all its own.

"It will also be interesting to see what will happen when antichoicers start getting savvy enough to bring Fifth Amendment claims on behalf of late term aborted fetuses."

Won't it just. So far, they seem to be savvy enough to realize that this would have about as much chance of success as bringing such claims on behalf of the tree on my block that got chopped down this summer (had said tree been located in the USofA). A cause of much distress to many individuals ... but a tree is not "a person", any more than a z/e/f is.

"Your views on due process are duly noted, but please keep in mind that due process rights are merely that: rules ensuring procedural safeguards."

Hmm, well, I'll be waiting to see what "procedural safeguard" could be applied that would guarantee that no innocent woman would ever die as a result of being compelled to continue a pregnancy that she did not wish to continue, or be deprived of the ability to live her life according to her own wishes rather than someone else's. Normally, people have to be convicted of crimes before being compelled to submit to those kinds of massive interferences with their rights, no? Do check that Morgentaler thing for more authoritative opinion than mine.

Is there a reason that a government in the US could not validly enact legislation mandating spare-kidney "donation" by unwilling donors?

.

[Jane Roe]

59. Are we talking about a fetal kidney or a child's kidney here? nt

[Zomby Woof]

30. secession

The Articles of Confederation didn't work. The need for a stronger central government was imperative by the states having too much autonomy, resulting in chaos with mattes of currency and trade.

The very volatility of the conflict between the federalists and anti-federalists meant lots had to be brokered to appease the states who feared tyranny by an overbearing federal government. Much of the Bill of Roghts was that grease for the skids, in the wake of the intial ratification. But since it was a painstaking process to get each state to ratify (and later, for each new state to join), why should it be as easy as 1-2-3 to secede? Also, consider territories applying to be states. Terrirtories had NONE of the concessions granted states in the Constitution. They were under the absolute jursidiction of the federal government. Now why, after becoming states, would they suddenly have the absolute freedom to say "I don't like this club, and I want out?" That goes against common sense. If it is hard to get IN to the union, it should not be so easy to get out.

Also keep in mind that the states knew if they broke off, they would have a tough time on their own raising an army, defending against the western frontier, coining new currency, and all of those federalized powers. They HAD to scrap the Articles, and a states-centered form of government, for mutual survival. The anti-federalists had valid concerns, but for the most part, their way of doing things had been given a chance, and discredited.

Judging by your several posts, you seem to have strong anti-federalist sympathies, including those for the Confederacy. I may be wrong, but that is the impression I get.

In any event, the Civil War settled the issue of secession for all time. The states know the price of the compact contained within the federal Constitution.

[Jane Roe]

31. Let's revisit this after the Patriot Act III passes in 2007. nt

[Zomby Woof]

33. I think you are confusing emotions with the law

My feelings about secession and whether it's right or wrong are irrelevant, and I didn't bring them into the posts. I am saying what years of constitutional scholarship and a cold-eyed look at our history shows. Plus, I have read all too extensively the Federalist Papers, the private writings of Hamilton, Madison, Monroe, Jefferson and other major framers of the debate, pro and con.

But getting past why my posts are quite close-to-objective (as is possible for a subjective human being) in explaining WHERE the Constitution is coming from, it does not mean I am an apologist for governmental abuses and wrongs, or that valid arguments can be made for other views.

As for as the "Patriot Act III" goes, I would not begrudge anyone leaving the country if they feel it is no longer hospitable to the liberties sanctioned by the Bill of Rights, but if you are thinking secession or armed insurrection is an option, all I can say is: Good Luck!

[Jane Roe]

35. Maybe we have some common ground here

Your feelings on seccession (whatever they may be) do not make you an apologist for governmental abuses.

By the same token, my (decidely mixed and conflicted) feelings about seccession do not make me an apologist for the Confederacy.

Hopefully these are things we can both agree to.

[Zomby Woof]

52. fair enough

And thanks for clarifying. I find this thread to be one of the best in here in ages because:

1. We can disagree civilly, and find common ground where necessary.
2. It mentions neither Dean nor Clark.

[iverglas]

55. you might be interested

and I do offer this purely because I think you might be interested, comparative law being an excellent source of insight.

The question of whether Quebec is entitled to secede from Canada was considered by the Supreme Court of Canada a few years ago:

http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html
Reference re Secession of Quebec, <1998> 2 S.C.R. 217

Pursuant to s. 53 of the Supreme Court Act, the Governor in Council <federal executive> referred the following questions to this Court:

1.Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

2.Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

3.In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

(You'd want to skip paras. 1 - 30 or so, which address jurisdictional objections, probably.)

I read a number of the expert witness reports (on international law issues) filed by both sides, at the time. The issue of the right to self-determination -- the right that was in fact exercised by the USAmerican colonies in the 18th century but has only been expressly articulated and recognized by states much more recently -- is addressed at paras. 113 et seq. The case is cited in discussions of the right of secession in other contexts (e.g. Greenland, East Timor).

.

[Zomby Woof]

56. Thanks iverglas

Much appreciated. I am woefully deficient on my knowledge of Canadian law, but followed the Quebec secession matter with some interest when it had some headline play in the mid-90's. I used to live quite close to B.C., and hey, who here on DU from the U.S. hasn't contemplated a move there? ;-)

[Yupster]

39. The issue was settled on the battlefield

I agree with you.

I wouldn't say the seceeded states had any trouble raising an army though. Truly the army of the Confederacy was unlike any army ever raised in America before or since. Of the approx. 1 million adult white men in the south who were physically able to fight, 750,000 of them or 75 % of them served in the Confederate Army. That is just an unbelievable number. When General Lee was at Gettysburg, he had approx 1 of every 11 adult white southerners on the battlefield with him. No American general ever had that kind of responsibility before or since. At the end of the war, approx. 1 of every 4 adult white men were dead and another 1 out of 4 wounded. The Confederacy didn't have trouble raising an army. They had trouble realizing that it was time to quit.

I am a former college history instructor. My field of interest is the Civil War, so yes, I have much interest and a little bit of knowledge of the time period.

[Jane Roe]

42. Hopefully the next serious seccessionist movement . . .

will be brought for better reasons and will be fought by *passive resistance.* After all, they didn't role models like Gandhi, King and the Warren Court back in the bellum era.

Sadly, I heard a rumor that the Republicans have also scheduled the repealing of Roe v. Wade for 2007 and believe that their proposed Marriage Amendment will pass by 2008 -- so the seccession debate could get interesting again. I am just now digging out my copy of the Kentucky Resolutions.

[karabekian]

41. 10th

"Amendment 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 tenth amendment is certainly the most ignored. Congress runs a 50-state extortion ring, threatening to withold education or highway money if the states do not comply... this seems to me to be a blatant violation of the 10th Amendment. This is how they keep web filters in our libraries... no child left behind, etc."

Wouldn't the 10th prevent the Federal Government from being involved in these other things. States rights mean that these other programs should be funded and run by the state. There is no reason that the federal government should be giving the states any money at all according to my reading of the 10th. If states funded it themselves then they could easily blow off the Fed and do things the way they want them done without haveing to worry about federal funding drying up.

[TomNickell]

54. Uninterpretable....

If this were a law passed by Congress, the courts would strike it down for being vague and not interpretable.

The Constitution 'delegates to the United States' broadly defined powers--regulate commerce, defense, taxation, etc. These can be stretched to cover just about anything.

The 14th Amendment completes the process by giving the 'United States' the right to guarantee 'equal protection of the laws' to all citizens.

[Nikia]

48. Remembering my Constitutional Law class

The tenth amendment was used to declare that the states had the power to unphold their laws until later on in the nation's history. The tenth amendment has been ignored in most cases because of the commerce clause, giving Congress the power to regulate interstate commerce, which pretty much covers all business. The other reason is the amendments passed after the Civil War declared equal protection of the law and that all citizens of the states were also citizens of the United States. This disregard for states rights did have some positive effects like allowing national labor laws to be passed such as the one prohibiting child labor, and allow national civil rights laws to be passed.