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Thread: Ninth Circuit decision could lead to SCOTUS showdown over your right to a private sex

  1. #21
    A Character Tennyson's Avatar
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    Quote Originally Posted by Ian Jeffrey View Post
    In what way? If anything, the government has gotten excessive leeway in its exercises of power, given the exceptions it gets.
    I agree. The government's leeway has surpassed the incidents that were the catalysts for the Fourth Amendment. Moreover, at an equally expanding pace are the creation of privacy rights by the courts that surpass anything that the First Congress could have imagined or would have accepted. Example: privacy rights for abortion found encrypted and in need of decoding in the punumbra of the Constitution.

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    Spock of Vulcan Ian Jeffrey's Avatar
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    Quote Originally Posted by Tennyson View Post
    I agree. The government's leeway has surpassed the incidents that were the catalysts for the Fourth Amendment. Moreover, at an equally expanding pace are the creation of privacy rights by the courts that surpass anything that the First Congress could have imagined or would have accepted. Example: privacy rights for abortion found encrypted and in need of decoding in the punumbra of the Constitution.
    The expansion of individual rights is not a problem, constitutionally speaking. The Constitution (and the Bill of Rights, in particular) is to protect people from the government, not to protect people from individual rights.

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    Is it absolutely certain that the topic case singularly is about the right to privacy. If I read correctly, the sexual activity was with another police officer and I assume a fellow police officer. Accordingly, could sexual relations between employees have work place implications. If so, could such implications impact the case.

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    A Character Tennyson's Avatar
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    Quote Originally Posted by Ian Jeffrey View Post
    The expansion of individual rights is not a problem, constitutionally speaking. The Constitution (and the Bill of Rights, in particular) is to protect people from the government, not to protect people from individual rights.
    I agree for the most part as long as the rights are within the scope and intent of the Bill of Rights and not the discovery of rights that do not exist. I say that in the context of the Constitution and the Bill of Rights being federalism documents and the states' constitutions being libertarian documents. The former being a bar on the federal government and the latter to protect a much more comprehensive list of rights.

    When a right is miraculously discovered or a positive right created that trumps an explicit right in the Bill of Rights or diminishes the Constitution's federalism doctrine, I take issue.

  5. #25
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    Quote Originally Posted by Tennyson View Post
    I agree for the most part as long as the rights are within the scope and intent of the Bill of Rights and not the discovery of rights that do not exist. I say that in the context of the Constitution and the Bill of Rights being federalism documents and the states' constitutions being libertarian documents. The former being a bar on the federal government and the latter to protect a much more comprehensive list of rights.

    When a right is miraculously discovered or a positive right created that trumps an explicit right in the Bill of Rights or diminishes the Constitution's federalism doctrine, I take issue.
    The 9th Amendment allows for the protection of rights that are not enumerated. The rule of constructions means you cannot use non-enumeration as a basis for rejecting a right. Remember, one of the original objections to a bill of rights was that the list might be deemed exhaustive, preventing the Constitution from protecting other rights they may not have thought of. The 9th Amendment was the remedy for that concern.

  6. #26
    A Character Tennyson's Avatar
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    Quote Originally Posted by Ian Jeffrey View Post
    The 9th Amendment allows for the protection of rights that are not enumerated. The rule of constructions means you cannot use non-enumeration as a basis for rejecting a right. Remember, one of the original objections to a bill of rights was that the list might be deemed exhaustive, preventing the Constitution from protecting other rights they may not have thought of. The 9th Amendment was the remedy for that concern.
    I believe that the primary objection, which came from the Federalists, was that there was no need for a Bill of Rights because there was no power in Article I for Congress to usurp the rights of the people. I believe that your statement is also true, though I do not know much about it off the top of my head. Moreover, considering that there was no need for a Bill of Rights because the lack of power to encroach on people’s rights was preemptive, that would not mean that the Bill of Rights gave the federal government an avenue to segue into passing laws regarding the Bill of Rights or judicial jurisdiction over the Bill of Rights. The lack of that power in Article I and Article III should still be the standard.


    It is important to understand that the Ninth and Tenth Amendments were drafted at the insistence of the states to limit the federal government from a broad interpretation of Article I powers. This demand aligns with the legal English of the Constitution of potestas stricte interpretatur government powers must be strictly interpreted, and in dubiis, non praesumitur pro potentia or the presumption is not in favor of a power.

    The states' proposals conveyed powers denied to the federal government, not the grant of rights not enumerated. Example the Virginia Ratifying convention’s seventeenth article:

    That those clauses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; But that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.

    Madison’s proposed Eleventh Amendment on June 8, 1789, was based on the states’ insistence of a limitation on the federal government:

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

    Congress pared it down, after several modifications, to the current language:

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

    The new language did not change the meaning or intent of Madison’s original amendment. But the states did not accept the new language. Madison explained that the meaning did not change.

    Edmond Randolph was the most vocal objector at the Virginia ratifying convention. Madison addressed Randolph’s persistence after Madison had explained that the meaning of the Eleventh Amendment did not change to the Virginia ratifying convention to Washington in a letter dated December 5, 1789, noting that there was no difference between the original and new amended language of the Eleventh Amendment and that they both prevented the interpretation of Article I powers to be broadly interpreted to expand the federal government’s powers:

    The difficulty started agst. the amendments is really unlucky, and the more to be regretted as it springs from a friend to the Constitution. It is a still greater cause of regret, if the distinction be, as it appears to me, altogether fanciful. If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured, by declaring that they shall not be abridged, or that the former shall not be extended. If no line can be drawn, a declaration in either form would amount to nothing. If the distinction were just it does not seem to be of sufficient importance to justify the risk of losing the amendts. of furnishing a handle to the disaffected, and of arming N. C. with a pretext, if she be disposed, to prolong her exile from the Union.

    From the ratification of the Ninth Amendment until FDR, the Ninth Amendment was understood to prevent the broad interpretation of Article I powers.

    Madison also made the same argument against the national bank. Note that individual rights are not mentioned as the intent of the Eleventh Amendment:

    The proposed Bank would interfere so as indirectly to defeat a State Bank at the same place. It would directly interfere with the rights of the States, to prohibit as well as to establish Banks, and the circulation of Bank Notes.

    The explanatory amendments proposed by Congress themselves, at least, would be good authority with them; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended for. These explanations were the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. He read several of the articles proposed, remarking particularly on the 11th. and 12th. the former, as guarding against a latitude of interpretation — the latter, as excluding every source of power not within the constitution itself.

    The plain language of the Ninth Amendment also supports the original intent of the amendment, especially the eighteenth meaning of the word “construed,” which regarded interpretation. The meaning of the word “people” is defined in Article IV:

    The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

    The people are not the collective people of the United States, but the citizens of each state individually via their states and their representatives. This aligns with the meaning of “we the people” in the preamble as the phrase “United States” is plural, not singular as used today.
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  7. #27
    Spock of Vulcan Ian Jeffrey's Avatar
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    Quote Originally Posted by Tennyson View Post
    I believe that the primary objection, which came from the Federalists, was that there was no need for a Bill of Rights because there was no power in Article I for Congress to usurp the rights of the people.
    That was true as well. The Anti-federalists wanted some of those rights specified, however, to ensure that they were inviolable.

    Quote Originally Posted by Tennyson View Post
    [C]onsidering that there was no need for a Bill of Rights because the lack of power to encroach on people’s rights was preemptive...
    Well, not exactly. Whether there was a need was rather disputed, and it was the promise of a bill of rights that ensured ratification of the Constitution. IIRC, Madison himself did not believe such a bill was necessary, but introduced them anyway to honor his promise to do so.

    Quote Originally Posted by Tennyson View Post
    ... that would not mean that the Bill of Rights gave the federal government an avenue to segue into passing laws regarding the Bill of Rights or judicial jurisdiction over the Bill of Rights. The lack of that power in Article I and Article III should still be the standard.
    Certainly, the legislature would not have the power to pass laws that violated the Bill of Rights. But should it do so, it is the judiciary's task to judge that "law" void as being no law at all.

    Quote Originally Posted by Tennyson View Post
    The plain language of the Ninth Amendment also supports the original intent of the amendment, especially the eighteenth meaning of the word “construed,” which regarded interpretation.
    The plain language allows for the protection of rights not specified in the Constitution, that the federal government (and, if incorporated, the state governments) may not intrude upon.

  8. #28
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    Quote Originally Posted by Ian Jeffrey View Post
    That was true as well. The Anti-federalists wanted some of those rights specified, however, to ensure that they were inviolable.


    Well, not exactly. Whether there was a need was rather disputed, and it was the promise of a bill of rights that ensured ratification of the Constitution. IIRC, Madison himself did not believe such a bill was necessary, but introduced them anyway to honor his promise to do so.


    Certainly, the legislature would not have the power to pass laws that violated the Bill of Rights. But should it do so, it is the judiciary's task to judge that "law" void as being no law at all.


    The plain language allows for the protection of rights not specified in the Constitution, that the federal government (and, if incorporated, the state governments) may not intrude upon.
    That was true as well. The Anti-federalists wanted some of those rights specified, however, to ensure that they were inviolable.
    I agree with this.

    Well, not exactly. Whether there was a need was rather disputed, and it was the promise of a bill of rights that ensured ratification of the Constitution. IIRC, Madison himself did not believe such a bill was necessary, but introduced them anyway to honor his promise to do so.
    What the Federalists wanted was a bill of rights. What Madison proposed was a bill of rights. What came out of the First Congress was not a bill of rights. The amendments were restrictions on the federal government. Madison’s proposed amendments were libertarian in nature that were strongly based on the libertarian Virginia Declaration of Rights, which were based on the libertarian English Bill of Rights of 1689. No one referred to the first ten amendments as a bill of rights. That was pretty much a twentieth century creation. Even Marshall rejected the idea in Barron v. Baltimore.

    Certainly, the legislature would not have the power to pass laws that violated the Bill of Rights. But should it do so, it is the judiciary's task to judge that "law" void as being no law at all.
    As I stated previously, with the Bill of Rights not being incorporated into the body of the Constitution, judicial review and jurisdiction was not a concept regarding the Bill of Rights. A good example is the Aliens and Sedition Acts of 1798. This would have been a classic example of a First Amendment violation for the courts to step in. This concept was not executable and the issue was resolved in the election of 1800 instead.

    The plain language allows for the protection of rights not specified in the Constitution, that the federal government (and, if incorporated, the state governments) may not intrude upon.
    The breakdown of the language of the Ninth Amendment, using eighteenth century dictionaries, usage of the words, and the public meaning of the Ninth Amendment do not support that and Madison's, who wrote the amendment at the request of the states, explanation of the amendment does not support that either.

  9. #29
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    Quote Originally Posted by Tennyson View Post
    As I stated previously, with the Bill of Rights not being incorporated into the body of the Constitution, judicial review and jurisdiction was not a concept regarding the Bill of Rights.
    This makes no sense given the language of Article V.

  10. #30
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    Quote Originally Posted by Ian Jeffrey View Post
    It does protect such a right in certain ways, whether or not specified.
    In certain inadequate ways, I suppose. But I would prefer an actual amendment - not the inventions of a judge selectively applied.

    The fact the Government as an employer can concern themselves with our private sex life is proof enough of why such an amendment is needed.
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