Welcome, Guest. Please login or register.
Did you miss your activation email?
August 21, 2019, 07:14:59 pm
News: Please delete your old personal messages.

  Atlas Forum
  General Politics
  Political Debate (Moderators: Beet, Eli Gorbinsky, Apocrypha)
  Do you agree or disagree with John Oliver on the ERA?
« previous next »
Pages: [1] 2 Print
Poll
Question: Do you agree or disagree with John Oliver on the ERA?
#1Agree  
#2Disagree  
Show Pie Chart
Partisan results

Total Voters: 19

Author Topic: Do you agree or disagree with John Oliver on the ERA?  (Read 613 times)
2,868,691
Harry
YaBB God
*****
Posts: 23,568
South Georgia and the South Sandwich Islan


Show only this user's posts in this thread
« on: June 10, 2019, 11:47:58 pm »





Yes, he lays it out very well.
Logged
🐒Gods of Prosperity🔱🐲💸
shua
Atlas Politician
YaBB God
*****
Posts: 19,858
Nepal


Political Matrix
E: 1.29, S: -0.70

WWW Show only this user's posts in this thread
« Reply #1 on: June 11, 2019, 12:46:43 am »

Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #2 on: June 11, 2019, 09:45:35 pm »

He's laid out an okay argument for having an ERA, but frankly he's just wrong about so much else. Even the original extension of the the ratification period is seriously constitutionally suspect, much less any attempt to reextend it retroactively. Moreover, if such things can be changed after the fact what about the five states that revoked their ratification?  Ordinary common law would allow such rescissions before an agreement has been finalized, so truth be told we have at best thirty-two states that currently ratify the ERA.

Since the whole purpose is to make crystal clear that women have equal rights without any chance of some future Supreme Court saying otherwise, proponents of an ERA should go for a clean ERA starting from square one rather than hoping no future court won't decide as the U.S. District Court for the District of Idaho did in 1981 in Idaho v. Freeman 529 F.Supp. 1107 (1981) that Congress could not extend the ratification period and that a State can revoke its ratification of an amendment before that amendment is adopted . (SCOTUS at the time ordered the decision be stayed pending a possible ratification and then ordered it be declared moot since the purported extended ratification period had ended without a claimed ratification having occurred.)
Logged
Secret Cavern Survivor
Antonio V
YaBB God
*****
Posts: 49,998
United States


Political Matrix
E: -7.87, S: -3.83

P P
Show only this user's posts in this thread
« Reply #3 on: June 11, 2019, 10:36:32 pm »

Morally yes, but he does get the procedural claims seriously wrong, as others have said.

It was incredibly stupid of Congress to set a deadline in the first place (why the hell should there be? the 27th amendment was ratified 200 years later and no one complained), but having set that deadline, it is part and parcel of the constitutional amendment and if they want to change it the only way to do so is pass the amendment again.
Logged
#Kavanaugh For Prison
Solid4096
YaBB God
*****
Posts: 5,987


Political Matrix
E: -8.88, S: -8.51

P P P
WWW Show only this user's posts in this thread
« Reply #4 on: June 12, 2019, 06:05:28 pm »

Morally yes, but he does get the procedural claims seriously wrong, as others have said.

It was incredibly stupid of Congress to set a deadline in the first place (why the hell should there be? the 27th amendment was ratified 200 years later and no one complained), but having set that deadline, it is part and parcel of the constitutional amendment and if they want to change it the only way to do so is pass the amendment again.

Its literally not part of the amendment that there is a deadline. In the case of the ERA, the deadline was added separately by a congressional act afterwards.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #5 on: June 12, 2019, 07:21:50 pm »

Morally yes, but he does get the procedural claims seriously wrong, as others have said.

It was incredibly stupid of Congress to set a deadline in the first place (why the hell should there be? the 27th amendment was ratified 200 years later and no one complained), but having set that deadline, it is part and parcel of the constitutional amendment and if they want to change it the only way to do so is pass the amendment again.

Its literally not part of the amendment that there is a deadline. In the case of the ERA, the deadline was added separately by a congressional act afterwards.

<McLaughlin!> WRONG! </McLaughlin>

The deadline was a part of self-same H.J.Res 208 (92nd Congress) that sent the ERA to the States, so the deadline wasn't added later, it was there from the beginning.  The ERA isn't the only amendment to have a time limit set in the text of the resolution sending the proposed amendment to the State rather than the text of the amendment itself, and frankly, I prefer it not be in there cluttering up the text of the Constitution with procedural details.
Logged
The Mikado
Moderators
YaBB God
*****
Posts: 17,722


Show only this user's posts in this thread
« Reply #6 on: June 13, 2019, 12:29:21 am »

It was incredibly stupid of Congress to set a deadline in the first place (why the hell should there be? the 27th amendment was ratified 200 years later and no one complained),

Wasn't it concern over the number of zombie Amendments out there that led to the deadlines becoming a thing for Amendments proposed in the later 20th century?

There's still four Amendments that are still passed by Congress and pending to the States from the early 20th, 19th or, in the case of the last Madisonian Amendment, the 18th centuries. The very example of the XXVIIth shows that those zombie Amendments are still very much able to pass. Setting time limits tidies up and prevents a situation where we still technically are waiting on the states to weigh in on "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."
Logged
Secret Cavern Survivor
Antonio V
YaBB God
*****
Posts: 49,998
United States


Political Matrix
E: -7.87, S: -3.83

P P
Show only this user's posts in this thread
« Reply #7 on: June 14, 2019, 07:06:19 pm »

It was incredibly stupid of Congress to set a deadline in the first place (why the hell should there be? the 27th amendment was ratified 200 years later and no one complained),

Wasn't it concern over the number of zombie Amendments out there that led to the deadlines becoming a thing for Amendments proposed in the later 20th century?

There's still four Amendments that are still passed by Congress and pending to the States from the early 20th, 19th or, in the case of the last Madisonian Amendment, the 18th centuries. The very example of the XXVIIth shows that those zombie Amendments are still very much able to pass. Setting time limits tidies up and prevents a situation where we still technically are waiting on the states to weigh in on "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."

...wait, did that actually actually pass Congress with 2/3 majorities? When??

And yeah, I guess there's an argument for deadlines, but personally I still think that amending the constitution is so hard that if anything actually gets a 2/3 support in Congress there should be a strong presumption in its favor.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #8 on: June 15, 2019, 12:54:03 am »

It was incredibly stupid of Congress to set a deadline in the first place (why the hell should there be? the 27th amendment was ratified 200 years later and no one complained),

Wasn't it concern over the number of zombie Amendments out there that led to the deadlines becoming a thing for Amendments proposed in the later 20th century?

There's still four Amendments that are still passed by Congress and pending to the States from the early 20th, 19th or, in the case of the last Madisonian Amendment, the 18th centuries. The very example of the XXVIIth shows that those zombie Amendments are still very much able to pass. Setting time limits tidies up and prevents a situation where we still technically are waiting on the states to weigh in on "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State."

...wait, did that actually actually pass Congress with 2/3 majorities? When??

And yeah, I guess there's an argument for deadlines, but personally I still think that amending the constitution is so hard that if anything actually gets a 2/3 support in Congress there should be a strong presumption in its favor.

It's the Corwin Amendment and it passed Congress in the days after the Deep South had seceded and Fort Sumter started the Civil War.  It was an attempt to woo the South back into the Union peaceably. Only five states ever ratified and two have since rescinded their ratifications. The Illinois House sent to the Illinois Senate a resolution earlier this month seeking to have Illinois rescind its ratification. If successful, the only two state remaining will be Kentucky and Rhode Island. Ohio rescinded back in 1864 and Maryland in 2014.

Frankly, I wish if we'd going to do anything with the moribund amendments, it would be to ratify the Child Labor Amendment that was sent to the States in 1924.  It's all too plausible that SCOTUS could continue to narrow the scope of the Commerce Clause to the point that they'd overturn United States v. Darby Lumber Co. (1941) which upheld the FLSA, which among other things regulates child labor.  Until then the controlling case had been Hammer v. Dagenhart (1918) in which SCOTUS had ruled that Congress could not regulate child labor.
Logged
Secret Cavern Survivor
Antonio V
YaBB God
*****
Posts: 49,998
United States


Political Matrix
E: -7.87, S: -3.83

P P
Show only this user's posts in this thread
« Reply #9 on: June 15, 2019, 01:42:18 am »

Frankly, I wish if we'd going to do anything with the moribund amendments, it would be to ratify the Child Labor Amendment that was sent to the States in 1924.  It's all too plausible that SCOTUS could continue to narrow the scope of the Commerce Clause to the point that they'd overturn United States v. Darby Lumber Co. (1941) which upheld the FLSA, which among other things regulates child labor.  Until then the controlling case had been Hammer v. Dagenhart (1918) in which SCOTUS had ruled that Congress could not regulate child labor.

Very good point, yeah. There should definitely be a movement to ratify it.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #10 on: June 15, 2019, 10:35:17 am »

Frankly, I wish if we'd going to do anything with the moribund amendments, it would be to ratify the Child Labor Amendment that was sent to the States in 1924.  It's all too plausible that SCOTUS could continue to narrow the scope of the Commerce Clause to the point that they'd overturn United States v. Darby Lumber Co. (1941) which upheld the FLSA, which among other things regulates child labor.  Until then the controlling case had been Hammer v. Dagenhart (1918) in which SCOTUS had ruled that Congress could not regulate child labor.

Very good point, yeah. There should definitely be a movement to ratify it.

Especially since it would be easy to get at least seven of the ten needed states: Connecticut, Hawaii, Maryland, Massachusetts, New York, Rhode Island, and Vermont.  Delaware I left off simply because it skews corporate-friendly in its politics, but it's a possibility. Virginia could happen if the Democrats get the Assembly back.
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #11 on: June 19, 2019, 01:36:28 am »
« Edited: June 19, 2019, 01:56:40 am by MarkD »

There's two things about Oliver's video that I find a bit confusing:
1) Is it utterly implausible that the ERA could be a way of ensuring that abortion rights are (still) constitutionally guaranteed? Roe v. Wade and Planned Parenthood v. Casey were explicitly based on the Due Process Clause and the Equal Protection Clause of the 14th Amendment was not invoked at all. Phyllis Schlafly stalled the ratification of the ERA by saying, among other things, that it could lead to confirmation that laws banning abortion will be deemed unconstitutional. John Oliver seemed to be belittling that interpretation of the ERA and seemed to suggest that is not what the ERA will do. Is that what he actually said? In other words, if one more state does ratify the ERA and the amendment is treated as having been officially and acceptably ratified (the old deadline is extended), does that mean that the Supreme Court will deem the ERA as being a ban on anti-abortion laws?

2) Why do so many liberals have a hard time with the philosophy of "originalism," and think it is so terrible to get into the heads of long-dead people who adopted the Constitution and its various amendments and deem what each clause was originally intended to mean? First of all, I strongly disagree with the assertion that Scalia even WAS an "originalist." It would take too long for me to explain that. Secondly, if there really are five or more "originalists" on the Supreme Court some day, and IF they decided that the Equal Protection Clause of the 14th does not effectively ensure the concept of treating men and women as equals under the law, then John Oliver's point is correct, but he is REALLY skiing fast down a slippery slope fallacy by implying that could happen because of Trump's claim that he wants to appoint more guys like Scalia to the Court. Show me one current Justice who is such an "originalist" that they deem the EP Clause of the 14th to not be a guarantee of equal treatment under the law for women and men (and who thus flushes down the toilet lots of precedents on that topic).

OK. Here's my bottom line. I DO want to put into the Constitution an explicit guarantee of equality between men and women. Not because I fear that the Court might overturn a bunch of precedents ranging from Frontier v. Richardson (1973)(decided by 8 to 1) to United States v. Virginia (1996) (decided by 7 to 1) and thus we need the ERA to get ratified. I want to include a simple version of the ERA in my own proposal to rewrite the 14th Amendment. Take out the ambiguous Equal Protection Clause (and the Due Process Clause and the Privileges or Immunities Clause) and write rules that are much more nuanced and detailed, like what I have drafted. What I have wrote, though, explicitly overturns Roe v. Wade and then says:

Just as it is important to clearly explain what rights states cannot violate, it is important that the states know which kinds of discrimination they may not engage in. The original Equal Protection Clause was too broadly worded because no classifications were listed. In its place will be this rule: no state shall, directly or indirectly, discriminate against any person within its jurisdiction on the basis of one’s race, national origin, sex, gender identity, sexual orientation, or disability status. Discrimination based on race and national origin shall continue to be scrutinized most strictly; discrimination based on sex and gender identity shall be subjected to heightened scrutiny – the sex rule here shall not be interpreted in such a way as to revive abortion rights doctrine -- and discrimination based on sexual orientation and disability status shall be subjected to a balancing test: do the social benefits from the law outweigh the harm to the disadvantaged class.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #12 on: June 19, 2019, 07:01:42 am »

I don't know why you try to preserve the fig leaf in your proposal that the ninth amendment would still exist at all. Granted, you only explicitly state it doesn't apply to the States. However, by limiting the Federal judiciary the way you do, you overturn completely the Ninth Amendment and make only the enumerated rights be rights.
Logged
S019
YaBB God
*****
Posts: 4,640
United States


Political Matrix
E: -1.55, S: 1.74

P
Show only this user's posts in this thread
« Reply #13 on: June 20, 2019, 01:05:35 pm »

I am a huge backer of the ERA


I ignore anything that John Oliver says

(Didn't listen to the video)
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #14 on: June 20, 2019, 10:55:09 pm »
« Edited: June 20, 2019, 11:08:30 pm by MarkD »

I don't know why you try to preserve the fig leaf in your proposal that the ninth amendment would still exist at all. Granted, you only explicitly state it doesn't apply to the States. However, by limiting the Federal judiciary the way you do, you overturn completely the Ninth Amendment and make only the enumerated rights be rights.

No, I am not completely overturning the Ninth Amendment, since the federal government still has to obey the Ninth and not violate un-enumerated rights. I am proposing something that prevents the federal government from forcing the STATES to obey any un-enumerated rights.

Under my proposal, a federal ban on abortion could be deemed to violate a right protected by the Ninth Amendment, since the Commerce Clause does not plausibly extend into any woman's womb. But the federal courts would be prohibited from striking down state laws that ban abortion. That, however, does not preclude the possibility that state courts might deem that state laws banning abortion violate their respective state constitutions, including any "Ninth Amendment rights" that are inferred from the state constitution. Many state constitutions have a "Ninth Amendment" of their own -- a sentence worded like the one in the U.S. Constitution. I am not proposing to interfere with how state courts interpret state constitutions.

The original purpose of the Ninth Amendment was parallel to the Tenth. Both the Ninth and Tenth serve as barricades erected around the enumerate powers of the federal government and they warn the federal government not to go where it is not empowered to go by the U.S. Constitution. On the Eastern Front, the Ninth warns the federal government that the people retain lots of rights not enumerated in the Constitution and those rights shall not be violated either, like the rights in the first eight amendments shall not be violated. On the Western Front, the federal government is warned, by the Tenth, not to invade the powers of the states. Both the Ninth and Tenth protect the principle that the federal government is a government of limited, delegated powers and cannot extend its powers beyond the ones enumerated in the Constitution. This interpretation of the Ninth was explained by Justices Black and Stewart in their dissenting opinions in Griswold v. Connecticut, 1965.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #15 on: June 20, 2019, 11:59:39 pm »

So you cloak your "Libertarianism" in Faux Federalism?  I completely fail any reason to treat the Ninth Amendment differently from the first Eight if the Fourteenth is to be held to extend the Bill of Rights to the States.  Indeed, the whole reason the Ninth was included in the Bill of Rights was to refute the authoritarian idea that the Bill of Rights was a grant of rights to the people instead of a libertarian protection of rights they already held. For that matter, were you aware that Douglas' majority opinion in Griswold based the right to privacy in the Fifth, not the Ninth Amendment. I find it odd that a supposed libertarian would want to endorse the idea that rights are granted by government to the people as your proposal endorses.
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #16 on: June 21, 2019, 08:29:30 am »

So you cloak your "Libertarianism" in Faux Federalism?  I completely fail any reason to treat the Ninth Amendment differently from the first Eight if the Fourteenth is to be held to extend the Bill of Rights to the States.  Indeed, the whole reason the Ninth was included in the Bill of Rights was to refute the authoritarian idea that the Bill of Rights was a grant of rights to the people instead of a libertarian protection of rights they already held. For that matter, were you aware that Douglas' majority opinion in Griswold based the right to privacy in the Fifth, not the Ninth Amendment. I find it odd that a supposed libertarian would want to endorse the idea that rights are granted by government to the people as your proposal endorses.

Have I ever said I was a Libertarian? I don't think I have said so. I've said I agree with Libertarians about the minimum wage, but that's about it.

I was aware the Douglas's majority opinion in Griswold was based on the First, Third, Fourth, Fifth, and maybe the Ninth as well. Privacy was not just inferred from the Fifth Amendment, but from multiple parts of the Bill of Rights. Of course, I don't agree with Griswold, which puts me even further away from being a Libertarian.

I don't endorse the idea that rights are granted by government to the people, but I do emphatically insist that government defines the rights of the people. We don't live in a society in which individual people, or minorities, can and do define their own rights and then government responds by acquiescing to those claims. If Timothy McVeigh asserted that he has a right to blow up federal buildings, neither the prosecutors nor the courts would have responded, "Well, okay; if you say so. After all, who are WE to tell you that you don't have that right? According to the Ninth Amendment, we can't disagree with your claim that you have the right to blow up buildings."

In both Planned Parenthood v. Casey and Lawrence v. Texas, the Court said, "Our obligation is to define the liberty of all, not to mandate our own moral code." If the Due Process Clause were truly intended to have substantive content, not just procedural content, then the Court would be right to assert that they have to define liberty. But the truth is that there is no clause or sentence anywhere in the Constitution that obligates anybody to define liberty. And another truth is that liberty cannot be defined objectively, which means that defining liberty is not within the prerogative of the judiciary, either. Defining liberty is a legislative job, which means that, ideally, only the legislative branch has the prerogative to do it. The first part of the Court's statement is false, which makes the rest of the statement hypocritical.

I already explained what the purpose of the Ninth Amendment was and is in my last post. When someone is attacking the constitutionality of a federal law and is making some kind of argument to the effect of "My rights were violated," the burden is not on that individual to point to an enumerated right in the first eight amendments (although, if the right they are talking about is actually enumerated, then pointing that out bolsters their argument), the burden is on the federal government to justify its law by pointing to authority somewhere in the Constitution, be it the Commerce Clause or any other clause that empowers the feds (Article I, Section 8, or any amendment that grants power to the feds). That logic behind what the Ninth was intended to mean is what makes it implausible to have the Fourteenth Amendment absorb the Ninth the way the Fourteenth absorbs most of the rights in the first eight amendments. The U.S. Constitution does not purport to empower the states, only to tell the states what they may not do.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #17 on: June 21, 2019, 09:16:18 am »

So just because you titled a section of your proposal "3(a) Libertarianism" it would be totally wrong to assume libertarianism motivates you? Riiiiiight.....

So what exactly in your view does the Ninth do that the Tenth doesn't, and vice-versa? It seems to me that you believe that the Ninth only serves to amplify the Tenth Amendment's clarification of how to interpret Article I Sections 8-10, but that would be ludicrous in my opinion. The 1st Congress didn't intend to send redundant amendments when it sent the twelve articles to the States.

Personally, I hold that Congress sent four proposals to the States: Article the First, which gave clearer guidelines on how large the House should be; Article the Second, which guaranteed that the Congress couldn't raid the Treasury to enrich itself; Articles The Third thru Eleventh, which are the Bill of Rights, broken up into parts in case the States disagreed with the wording of one part, and last Article the Twelfh, which clarified the separation of powers between the Federal government, the State governments, and the people. Article the Eleventh, what we now call the Ninth Amendment, was intended to be the capstone of the Bill of Rights, not a useless appendage of Article the Twelfth.
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #18 on: June 21, 2019, 09:30:18 am »

Right.

BTW, what I posted in the Forum Community thread is only a summary of my proposal; it is not the whole proposal, verbatim.

You're having the same difficulty with comprehending my explanation of the Ninth as when Prof. John Hart Ely (in his famous book "Democracy and Distrust") said that the Ninth and Tenth are redundant of one another (if Hugo Black's explanation of the Ninth in his Griswold dissent is historically correct). But as I said before, the purpose of the Ninth is parallel to the Tenth, not identical. I said that the Ninth and Tenth are like barricades set up around the federal government's powers, warning the federal government not to go beyond its enumerated powers. But on one side, a barricade warns the feds not to invade the rights retained by the people while the other barricade warns the feds not to invade the powers retained by the states. The rights of the people are protected from the federal government by the Ninth and the powers of the states are protected from the federal government by the Tenth.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #19 on: June 21, 2019, 10:53:28 am »

I don't think Black's explanation of the Ninth in Griswold has any merit. It certainly doesn't jive with the plain text of the Ninth or the debates in the 1st Congress concerning what amendments to propose to the States to hold that it was "enacted to protect state powers against federal invasion". In the list of 17 Articles the House sent to the Senate, what is now the Ninth Amendment was Article the Fifteenth, which immediately followed Article the Fourteenth: "No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press." The Senate chose to strike that article, but its presence in the House proposal between what are now the Eighth and Ninth Amendments makes clear that the Ninth was enacted to protect the rights of the people from being narrowly construed. You can also look at Madison's original proposal (which actually amended the original text of the constitution instead of tacking it at the end). In that proposal most of what became the Bill of Rights are added to Article I Section 9. The exceptions are the Seventh Amendment (added to Article III Section 2 Clause 2) and the Tenth Amendment which was added as part of a new Article VII with the existing Article VII renumbered Article VIII. The other half of Madison's new Article VII made explicit the separation of powers between the Legislative, Executive, and Judicial branches and prohibited delegation between them. This also shows that the Ninth was not intended in any way to address the separation of powers between the Federal and State governments.
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #20 on: June 21, 2019, 11:16:04 am »

Oh, I agree that Justice Black did not explain that part correctly. He did get the Ninth and Tenth confused with one another at that specific point. Justice Stewart's dissent was better because he simply said that the Ninth and the Tenth are "companion" amendments. I congratulate Black, though, for turning Justice Goldberg's own historical references back on Goldberg, making it look as though Goldberg did not understand the history he was quoting. Also see where Justice Black quoted Joseph Story's "Commentaries on the Constitution," in a footnote. I don't think that Black completely ruined his whole argument, regarding the Ninth, by inaccurately claiming that the Ninth "was enacted to protect state powers against federal invasion," which is actually a description of the Tenth.

Justice Goldberg's concurring opinion in Griswold has the unfortunate effect of being an endorsement of substantive due process, claiming that the Ninth Amendment "shows" that the "fundamental rights" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are not limited to only enumerated rights in the Constitution. It's unfortunate because Goldberg, joined by Warren and Brennan, claimed that he was agreeing with Douglas's "majority opinion," whereas Douglas was disclaiming any reliance on substantive due process.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #21 on: June 21, 2019, 01:33:39 pm »

I'll repeat since you either missed it or ignored it:

The whole history of the Bill of Rights makes it clear that the Ninth was never intended by its authors to be viewed as a companion to the Tenth. It was intended as the capstone to the enumerated rights to ensure that no one would treat them as the only rights of the people that governments need respect. The only sense in which the Ninth and Tenth are companions is that few decisions have been based on either because they clarify certain things already implied by the rest of the Constitution.
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #22 on: June 21, 2019, 02:28:08 pm »
« Edited: June 21, 2019, 02:31:34 pm by MarkD »

I'll repeat since you either missed it or ignored it:

The whole history of the Bill of Rights makes it clear that the Ninth was never intended by its authors to be viewed as a companion to the Tenth. It was intended as the capstone to the enumerated rights to ensure that no one would treat them as the only rights of the people that governments need respect. The only sense in which the Ninth and Tenth are companions is that few decisions have been based on either because they clarify certain things already implied by the rest of the Constitution.

I ignored it, I didn't miss it. The most important disagreement I have with what you just said is that you refer to "governmentS," (plural) instead of just the federal government. "The whole history of the Bill of Rights" was to only limit the power of the federal government, as the Supreme Court unanimously established in Barron v. Baltimore. In the pre-Fourteenth Amendment era, none of the three branches of the federal government were concerning themselves with whether or not state governments were establishing official religions, or violating the free exercise of religion, or whether or not state governments were imposing cruel and unusual punishments, and so on and so forth. Was Section 1 of the Fourteenth intended to overturn Barron and start imposing the first eight or nine amendments on the states? What does this mean:

Quote
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ...

Justice Black, as he said in Adamson v. California, 1947, and again in Duncan v. Louisiana, 1968, said that all of the rights enumerated in the first eight amendments are incorporated into the Privileges or Immunities Clause of the Fourteenth. But in arguing his case for that specific interpretation, Justice Black has been alone. No one else on the Court has agreed with him, either that ALL of the rights enumerated in the first eight amendments are incorporated or that ONLY the rights enumerated in the first eight are incorporated. The current status of "Incorporation Doctrine" is that the Grand Jury Clause of the Fifth, the Vicinage Clause of the Sixth, and the Seventh Amendment are not incorporated. Has the Court been correct to incorporate all of the rest into the Privileges or Immunities Clause of the Fourteenth? Was that what was intended by both the Congress which proposed and the states that ratified the Fourteenth? Prof. Ely, in the book I mentioned before ("Democracy and Distrust"), said it is an argument that no one can win.

Fine, I want to settle the argument with my proposal. Leave "Incorporation Doctrine" exactly where it currently is: do not force the states to indict criminals with grand juries, do not require that trials have to occur in the vicinity of the crime, and do not impose the un-used Seventh Amendment on the states. Continue forcing the states to respect all of the rest of the rights in the first eight amendments. But I am also aiming to make sure that the Ninth is also not imposed on the states.

You say, twice, that the Ninth is the "capstone" of the first eight amendments. When we remember that the entire Bill of Rights was only imposed on the federal government and not the states, I have no quarrel with saying it. But my main quarrel is with trying to incorporate the Ninth into the Fourteenth, and I'm not sure what you are saying about that.
Logged
True Federalist
Ernest
Moderators
YaBB God
*****
Posts: 37,001
United States


WWW Show only this user's posts in this thread
« Reply #23 on: June 21, 2019, 09:39:11 pm »
« Edited: June 22, 2019, 12:35:44 am by True Federalist »

Granted, when the Senate struck Article the Fourteenth from the House's original list of seventeen proposed amendments, it made the decision that at that time it would apply application of Federal protection of personal rights in the Federal Constitution only to actions of the Federal government. However, Amendment the Fourteenth went beyond Article the Fourteenth in protecting the personal rights from intrusion by the States.

However, I would argue that we have in a piecewise fashion already extended the application all of the rights in the first eight amendments to the States. The provisions in the first eight that have not been incorporated detail procedures intended to ensure the Federal government didn't trample rights, not rights themselves. Besides, the Vicinage Clause would be pointless to apply to the States as it would only bar a State from trying someone outside its borders. It is logically inconsistent to hold that the protection of the rights present in the first eight amendments apply to States because of the Fourteenth Amendment yet the protection of any rights derived from the Ninth are not similarly incorporated. (One could argue whether Congress intended incorporation. After all, who says Congress must be logical?)

Black probably mentioned only the first eight in his opinions because as far as I can tell, he treated the Ninth as a nullity, at least as far as the Court was concerned. Black was a strong believer in legislative supremacy. While no such case arose during his time on the Court, I believe that if Congress had passed a bill that referred to the Ninth Amendment in placing limits on State action in defense of unenumerated rights, I think he probably would have upheld it.
Logged
MarkD
YaBB God
*****
Posts: 1,799
United States


Show only this user's posts in this thread
« Reply #24 on: June 21, 2019, 10:54:27 pm »
« Edited: June 21, 2019, 11:41:55 pm by MarkD »

Responding to various points in less that the order you made them:

Granted, when the Senate struck Article the Fourteenth from the House's original list of seventeen proposed amendments, it made the decision that at that time it would apply application of Federal protection of personal rights in the Federal Constitution only to actions of the Federal government. However, Amendment the Fourteenth

You sort of left out the remainder of a sentence. You were beginning to address what I said about the Fourteenth incorporating the Bill of Rights and forgot to complete the thought.

However, I would argue that we have in a piecewise fashion already extended the application all of the rights in the first eight amendments to the States. The provisions in the first eight that have not been incorporated detail procedures intended to ensure the Federal government didn't trample rights, not rights themselves. Besides, the Vicinage Clause would be pointless to apply to the States as it would only bar a State from trying someone outside its borders.

Yes, the Supreme Court did indeed in a piecewise fashion extend the application of MOST of the rights in the first eight amendments. Not the Vicinage Clause, and your explanation there is correct. Not the Grand Jury Clause, as determined more than one hundred years ago in Hurtado v. California, 1884. And the Seventh Amendment has not been incorporated, I assume because it is not needed. Incorporation of the rest has been done one at a time, piece by piece, without total incorporation of all the rights in the first eight. But the important rights, which are the substantive ones, not the procedural ones, have been incorporated. So there's no disagreement here.

Black probably mentioned only the first eight in his opinions because as far as I can tell, he treated the Ninth as a nullity, at least as far as the Court was concerned. Black was a strong believer in legislative supremacy. While no such case arose during his time on the Court, I believe that if Congress had passed a bill that referred to the Ninth Amendment in placing limits on State action in defense of unenumerated rights, I think he probably would have upheld it.

Here, though, I disagree with you. I don't think Hugo would have been that deferential to Congress. He partially dissented in the case about the Voting Rights Act, South Carolina v. Katzenbach. And he wrote the Court's opinion in Oregon v. Mitchell.

It is logically inconsistent to hold that the protection of the rights present in the first eight amendments apply to the States because of the Fourteenth Amendment yet the protection of any rights derived from the Ninth are not similarly incorporated.

Here is the bottom line in which I disagree with you. The Ninth Amendment is both your "capstone" to the rest of the Bill of Rights, and it is what I call the barricade against encroachment by the federal government beyond its enumerated powers. The way to determine whether or not a "Ninth Amendment right" has been violated by the federal government is still be looking at the feds' enumerated powers. There is no "Ninth Amendment right" to engage in interstate commerce since that is an enumerated power. But there could very logically be a "Ninth Amendment right" to have an abortion because, as I've said above, the Commerce Clause doesn't go into a woman's womb. But this sort of reasoning only settles questions about where the federal government may not go. Whatever is a "Ninth Amendment right" that stops the feds is not also a right that the states may not violate either, because that assumes that the powers of the states are the same as the powers of the federal government. They are not. The U.S. Constitution enumerates the powers of the federal government but it does not enumerate the powers of the states. As it says in Federalist #45, the powers of the federal government are few and defined, but the powers of the states are numerous and undefined.

If the Ninth were incorporated into the Fourteenth, how would the federal government, and especially the courts of that government, go about determining what are the rights that cannot be violated? By deciding what ought to be a protected right. I would submit to you that the Supreme Court has already been doing that very thing, but I say that in doing so the Court has been abusing its power and subverting the intended meaning of the Tenth -- taking power away from the states without warrant in the Constitution. Skinner v. Oklahoma was a famous case in which the Court spontaneously decreed that being able to reproduce, to have children, is "one of the basic civil rights of man." It was an example of the Court legislating from the bench. The Court spontaneously created the right to reproduce by just decreeing that it IS a right. And the Court (not all, but most of the Justices, as it turns out) must have decided that it IS a right because it OUGHT to be a right. The substantive right to privacy in Griswold was also an example of creating a new right from whole cloth, not from logically inferring the right from the Bill of Rights. It would take up a lot of space here to expound on all that was wrong, in my view, with Griswold, and Robert Bork already did a bang-up job about this point in "The Tempting of America."

Incorporating the Ninth into the Fourteenth leaves the Justices with a responsibility to figure out what are the "rights" that the people OUGHT to have from being abridged by any state or local government, and figuring that out is inherently subjective, which is to say that such a power ought not to be exercised by any judges.

And pretty soon we ought to get back to discussing the video of John Oliver.

EDIT: I just realized that you provided an answer to my question about the ERA and abortion back in January this year, under the Constitution and Law thread about whether Virginia was going to ratify the ERA.
Logged
Pages: [1] 2 Print 
« previous next »
Jump to:  


Login with username, password and session length
Logout

Terms of Service - DMCA Agent and Policy - Privacy Policy and Cookies

Powered by SMF 1.1.21 | SMF © 2015, Simple Machines

© Dave Leip's Atlas of U.S. Elections, LLC