The Constitution and The Bill of Maybe's

What are rights? Are they those actions that are sanctioned by Natural Law, and inherent in all People, or are they legal grants made by institutions, and the only valid rights are those legislated by law?

Throughout history, and today in the present, the Constitution for the United States of America remains unique in its concept and structure in that it is the only legal document that acknowledges rights as belonging to people without any grant by government, and yet, many will disagree with this, and argue this is not the case. Of course, the Ninth Amendment is a source of many problems for those who would argue the only valid rights are those legislated:

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

~9th Amendment, Bill of Rights, The Constitution for the United States of America~

While scholars love to call this particular Amendment an "enigma", it is only so if one insists on viewing all rights as legal rights that require some sort of legislation in order to be valid. It should be perfectly clear by the language of the Ninth Amendment that rights need not be enumerated in order to have validity, but many people including the current administration would like to argue otherwise. So, I ask you, are rights Natural and Inalienable, or are they legal fictions created by a government and granted to their subjects?

So the 9th Amendment states that our rights are not limited to only those enumerated in the Constitution and that you don't lose any rights not listed in the Constitution.






[edit on 13-5-2010 by GuyverUnit I]

reply to post by GuyverUnit I


It would certainly seem to be this way, and yet, Congress Persons are constantly asserting that the Constitution doesn't grant this right or that. Further, each state constitution also makes clear that rights are Inalienable but most states ignore this, and also pretend they are granted rights. What to do, what to do, what to do? Thanks for posting.

I would surmise that after the Constitution was written confusion arose over legal issues involving rights citizens enjoyed that were not enumerated in the Constitution. So they wrote the 9th to protect those rights as well.

Originally posted by GuyverUnit I
I would surmise that after the Constitution was written confusion arose over legal issues involving rights citizens enjoyed that were not enumerated in the Constitution. So they wrote the 9th to protect those rights as well.

There was actually great resistance to the Bill of Rights precisely because of this concern. Indeed, The Anti-Federalist Papers stands as a testament to the resistance to a federal Constitution granting the powers that have been granted to government, but yes the 9th Amendment exists to address the very real concerns that by enumerating rights, it would be construed that such rights are legal rights and not Inalienable.

reply to post by Jean Paul Zodeaux


If there was one part of the Constitution I could strip away, would be this one.

The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.


This component even pisses me off more than the general welfare component.

The ELASTIC CLAUSE that the priests of the sacred knowledge always seem to point at, while they are stripping our rights.

Their argument, by this component of the Constitution it clearly states that the government can pass any law to allow for or to enforce anything in the Constitution. They go onto say that the other part, the GENERAL WELFARE component then allows them to do anything, including stripping our rights, for the benefit of the collective or the government itself.

I wish someone would go back in time and just spill some ink on that part of the HEMP document.

The argument that the Constitution grants rights, is the way the government and the people do not realize their ignorance, use to destroy our liberty.

Who back in the beginning of the country, would have thought that the government in the future, would do something so despicable as to enforce slavery (individual income taxes) and property seizure.

I should not even say "and property seizure", for if one's labor is not one's property, what else could it be called?

S&F JPZ

reply to post by endisnighe


The Bill of Rights, of course, was written to prevent the sort of shenanigans you have just pointed to. Even though, there is the 9th Amendment, and when combined with the 10th Amendment, and that combined with the state constitutions, provides an excellent case for the inability for government to strip rights away, they are being stripped away because people wish to equivocate about rights, and insist that they are not Inalienable and have to be granted by legislation. Of course, the 9th Amendment is a legislative act, and where those insisting the only validity comes from legislation, will then turn around and dismiss the 9th Amendment as being to vague, or an enigma, and actually argue it should be repealed.

Further, you and I have enough history together, that we have seen the gross misunderstanding of such Amendments as The First Amendment. And while the language is clear in that Amendment and begins with; "Congress shall make no laws..." this has been ridiculously construed by too many people to mean the First Amendment granted all the rights that follow. It is shameful, and even incomprehensible, but in the end, those who understand their Inalienable Rights are Natural and not artificial, need not any written document to prove it.

As to the problems you perceive from what is written in the Constitution, they are only a problem when the "majority" insists that rights can be stripped away. What is required of each individual is that they jealously guard their rights, and zealously assert them whenever necessary. Regardless of the opposition, American Jurisprudence has a long history of supporting the idea that rights are Inalienable and can not be stripped away.

In 1965, the United States Supreme Court heard the case of Griswold v. Connecticut.

In that case, a multitude of knowledge in regards to 'rights' was touched upon. From freedom of association to privacy.

The most telling quote, and something that I believe should be herald is the following.

Justice Goldberg states:

"I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights."

He then continues on to explain that:

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

Justice Goldberg was a fine judge who drew upon historical meaning and interpretation, rather than his political sway. The above quotes from the case show that there was once a time were Judges recognized that specific rights mentioned within the first Eight Amendments could be used to deny any other right not mentioned. Enter James Madison and the Ninth Amendment.

The Ninth Amendment, along with the rest of the Bill of Rights was born out of the debate between Federalist and Anti-Federalist. Patrick Henry made a good point in why a Bill of Rights was needed.

All rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from the delegated powers...

.

You see, he understood that while at the time they were creating the most unique document that would bring about the most possible liberty to all Men, there is still the pesky fact that it was a document created by Man. James Madison recognized this and while he could not possibly list every right that we hold true and inalienable, to be listed in the Bill of Rights, he framed the Ninth Amendment.

The reason Jean Paul we see today a perversion of that amendment is because it is that amendment that strips the power of Congress from going about denying the People 'rights' not mentioned within the Constitution.

I depart with the following:

To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever.

While the case I refer to is in regards to marital privacy, it can be carried forth into all aspects of our Natural rights as individuals and should be protected at all costs in the name of Liberty.

The greatest explanation of where rights come from in the history of man:

fascistsoup.com...

Tom Woods unloads in this epic piece on natural rights and the constitution.

When one wants to know their rights, and from where they originate, you need not look any farther than the Declaration of Independence.

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

You see the constitution is nothing more than that, the consent of the governed.

I'm a bit confused when some of you state our rights are given to us by the creator, or are inallienable/natural, and continue to state they are "constitutional rights," or our rights are given to us and or protected by the constitution. A bit contradictory, no? If our rights are creator given, how can they also be constitution given? Did our creator draft the constitution? Of course not, and when our gov't claims we have no constitutional rights, dare I say I agree? For very different reasons, admitetly so, stil none the less I agree.

The constitution, and it's ammendments are the just powers of the federal gov't as given by the consent of the governed. Weather or not I agree with all of the ammendments is a another topic of debate. Deception has played a major role in our history, and this our forefathers greatly understood.

[edit on 5/22/2010 by ComeAndGetMe]

[edit on 5/22/2010 by ComeAndGetMe]

Hope this isn't too long;

The power to commit violence, perpetrate injustice, take private property by force without compensation to the owner, and compel the receipt of promises to pay in place of money, may be exercised, as it often has been, by irresponsible authority, but it cannot be considered as belonging to a government founded upon law.

But be that as it may, there is no such thing as a power of inherent sovereignty in the government of the United States.

It is a government of delegated powers, supreme within its prescribed sphere, but powerless outside of it.

In this country, sovereignty resides in the people, and congress can exercise no power which they have not, by their constitution, intrusted to it; all else is withheld.

It seems, however, to be supposed that, as the power was taken from the states, it could not have been intended that it should disappear entirely, and therefore it must, in some way, adhere to the general government, notwithstanding the tenth amendment and the nature of the constitution. The doctrine that a power not expressly forbidden may be exercised would, as I have observed, change the character of our government. If I have read the constitution aright, if there is any weight to be given to the uniform teachings of our great jurists and of commentators previous to the late civil war, the true doctrine is the very opposite of this. If the power is not in terms granted, and is not necessary and proper for the exercise of a power which is thus granted, it does not exist.

And in determining what measures may be adopted in executing the powers granted, Chief Justice MARSHALL declares that they must be appropriate, plainly adapted to the end, not prohibited, and consistent with the letter and spirit of the constitution.

Now, all through that instrument we find limitations upon the power, both of the general government and the state governments, so as to prevent oppression and injustice. No legislation, therefore, tending to promote either can consist with the letter and spirit of the constitution. A law which interferes with the contracts of others, and compels one of the parties to receive in satisfaction something different from that stipulated, without reference to its actual value in the market, necessarily works such injustice and wrong. – U. S. Supreme Court - JUILLIARD vs. GREENMAN - 110 U.S. 421, 468 - Decided March 3, 1884

reply to post by ComeAndGetMe


Great posts, my friend, and yes it is rather confusing when someone insists that rights are God granted and Inalienable, and then turns around and talks about rights granted by Constitution. In terms of protecting those rights, they can only do so in the effort was made to restrict government. I have often argued that The Bill of Rights are not a grant of rights but a prohibition on government, and the language of those Amendments seem to support my contention.

While I admire the Declaration of Independence, and believe it does serve as a legal authority, it is not legislated law, and herein is where much confusion arises. If it hasn't been codified by legislation into positive law, too many people tend to believe it is not law. As if Newton codified gravity, and Einstein codified the speed of light.

I appreciate you pointing out the canard that what hasn't been entrusted to the federal government has been entrusted to the states. Each state comes with its own constitution and I have not read a single state constitution that has not endeavored itself to prohibit government from the abrogation and derogation of rights. Yet, people are not just ignorant of the federal Constitution, they are woefully even more ignorant of their own state constitution, and all to often attempt to rely upon a federal Constitution where such reliance is inapplicable, and because of this will fail to rely upon their own state constitution to zealously assert their right to do what they did.

About a year ago I was ticketed for selling my own private DVD collection to raise capital on a public sidewalk. I was quite prepared for the trial date, and I refused to plead to the charge against me. When the judge asked me why, I first cited my constitutional rights, and he responded to me by telling me that the Constitution did not apply. I asked him how this was so and he began yammering on about the scope of a federal Constitution. When he was done, I pointed out that I was referring to our state constitution and his obvious fluster and confusion was quite palpable. He attempted to argue some more but I then relied upon a Court of Appeals ruling as further authority, and that was all it took, and the judge dismissed the case. I wasn't really timing that experience, but it seems it took less than fifteen minutes to have that case dismissed by relying upon both law and legislation.

Thanks again for posting.

Enumeration simply means listing the rights. Enumeration does not mean granting or conferring.

They said that the rights they listed is by no means a complete or comprehesive list.

Inalienable rights are rights that are inborn natural and inseparable from the being who possesses them. God given in other words.
Inalienable means cannot be alienated, nor can a lein be placed on them.

So right to life, second amendment
right to liberty, first and most of the other amendments.

reply to post by Jean Paul Zodeaux


The Constitution does not necessarily allow you to sell your private DVD collection on the sidewalk. If you were cited with violating copyright law, you have no defense under the Constitution. The Constitution explicitly allows for copyrights when it states authors "for limited times...shall have exclusive right to their respective writings." If you legally purchased your DVD's and your DVD"s were legal copies, you could raise an exhaustion defense and walked away scot free.

If you were cited as violating some sort of local regulation prohibiting people from conducting business on the street, the Constitution allows local and state legislatures to enact all sorts of statutes, including statutes that regulate commercial activity. The Constitution also enables the federal government to pass statutes. Article I Section I creates a Legislature. Legislatures are bodies that write laws. If only "natural law" is supposed to exist, how come the first thing the Constitution does is create a body that can write laws?

reply to post by hotpinkurinalmint

The Constitution does not necessarily allow you to sell your private DVD collection on the sidewalk.

I made perfectly clear I relied upon the constitution for The State of California, and further I never once said that that constitution nor any constitution "allows" me to do anything. The California constitution makes clear in Article I, Section 1 of that Declaration of Rights that:

SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

www.leginfo.ca.gov...

The first thing that should be noted about Section 1 is that it makes perfectly clear that all people have inalienable rights, which means they can't be transferred from one party to another, and as such the State of California is not "allowing" me to have rights, but is acknowledging that I do have rights. Secondly, the right to acquire, possess, and protect my property, as well as pursue and obtain safety, happiness, and privacy, makes clear I most certainly did have the right to sell my DVD collection to any person who wanted to buy them.

If you were cited with violating copyright law, you have no defense under the Constitution.

First of all I was not charged with any copyright violation, I was charged with Section 42.00 (b) of the LAMC, which is an unconstitutional prohibition on street vendors. Further, if I had been charged with a violation of copyright infringement, that too would have been dismissed as First Sale Doctrine makes perfectly clear that I have every right to resell those DVD's I legally purchased, and I shouldn't have to explain the first sale doctrine to you of all people.

The Constitution explicitly allows for copyrights when it states authors "for limited times...shall have exclusive right to their respective writings." If you legally purchased your DVD's and your DVD"s were legal copies, you could raise an exhaustion defense and walked away scot free.

Clearly I don't have to explain first sale doctrine to you, as presumably this is what you mean by "exhaustion", and of course, I was well aware of this when walking into court. The real question to you is why are you so intent on muddying the waters? I was not charged with any violation of copyright law and if you were confused on this point, a simple question to clarify would have sufficed rather than coming in and insisting that constitutions allow rights. If you want to make that argument, then make it, but don't hide behind assumptions that copyright law entered into my experience, it didn't, and I have never illegally downloaded any products, nor purchased any pirate DVD's, and even refuse to accept pirated copies of such product from friends who have offered, so I do not appreciate the implication that I could have been involved in such copyright infringement.

If you were cited as violating some sort of local regulation prohibiting people from conducting business on the street, the Constitution allows local and state legislatures to enact all sorts of statutes, including statutes that regulate commercial activity.

Here you finally use the term "allow" in the proper sense, as constitutions are all about what government is allowed to do, however since you keep insisting on capitalizing the word Constitution, it is hard to know if you are referring to the federal Constitution, or the California State constitution. In terms of what is allowed by either, abrogation and derogation of inalienable rights is not allowable.

The Constitution also enables the federal government to pass statutes. Article I Section I creates a Legislature. Legislatures are bodies that write laws. If only "natural law" is supposed to exist, how come the first thing the Constitution does is create a body that can write laws?

With this statement you make it safe to assume that the only constitution you are referring to is the federal Constitution, and your point of legislatures remains moot, as legislatures were not authorized, and the Bill of Rights makes perfectly clear, to abrogate and derogate the rights of people. As to your smug question of Natural Law and the existence of legislatures, the codification of Natural Law into legislation does not in anyway undermine the Natural Law of which it is based, and your argument pretending to be a question is nothing more than a fallacious argument of the beard.

You are making it increasingly clear in your posts that as an attorney, you are just one more of the priest class lawyers who attempt to utter their mystical incantations in an attempt to subjugate people to your whims, and have no interest at all in defending the rights of a person, but this should be understandable given that you are a tax attorney.

reply to post by hotpinkurinalmint


Ouch!

As an attorney, I am not trying to argue that the law subjects people to my whims. I am trying to argue that both state constitutions and federal constitutions give state legislatures, local legislatures, and Congress the authority to make laws. People who violate these laws could be subject to penalties or civil judgments. If anything, people like you are subject to the whims of legislatures, not the whims of people like me.

If it were up to me, I would not mind if you were selling your legally obtained DVD's on the street. Unfortunately, your local legislature for reasons that may be fair or unfair does not agree with me. Your local legislature does not have to be "fair" or agree with me or you. It has the authority, within limits imposed by the State and Federal Constitution, to regulate commercial activity like selling goods on sidewalks.

Natural Law may be a wonderful philosophy and a good policy in drafting rules, but it is not THE LAW in this country. Our Constitution, which allows legislatures to make statutes is the law. Our laws are far from perfect, but we need them to ensure some sense of order.

As imperfect as our laws are, the one thing they have is that they are relatively mechanical. We have numerous statutes, regulations, and court cases to guide our behavior. I think several laws are unfair or disfavor people like myself, but at least I know they are unfair and/or they disfavor me. If we were guided solely by "natural law" then who would know what the law is?

If I were selling DVD's on a particular street corner for years and had a regular customer base, would "natural law" allow you to come onto the street corner had been using and set up shop? Does "natural law" give me a right to the goodwill I earned over the years and is it possible you are free-riding off my goodwill by selling DVD's on my corner? Or does "natural law" say the street corner belongs to the first person who sets up shop for the day.

reply to post by hotpinkurinalmint

As an attorney, I am not trying to argue that the law subjects people to my whims. I am trying to argue that both state constitutions and federal constitutions give state legislatures, local legislatures, and Congress the authority to make laws. People who violate these laws could be subject to penalties or civil judgments. If anything, people like you are subject to the whims of legislatures, not the whims of people like me.

Far too many legislators were attorneys before being elected to the legislature, and far too many attorneys are kept on as counsel while legislating law. You have spent some time now pooh-poohing the notion of Natural Law, and this leads me to have great concern about your intentions. What possible threat would Natural Law be to you or legislatures, unless the motive is the legislate whimsy and not law? People who violate legislation regularly challenge the jurisdiction of legislation and this is just one reason we find legislation struck down as unconstitutional or repealed. As an attorney who operates as an advocate for private persons, and I am presuming this is what you do as opposed to acting on behalf of the government, it is disturbing that you continually insist that legislation is law, and as such if it is written it must be obeyed. Certainly if my assumption about who you represent is true, how can this attitude benefit your clients? What if the legislation is wrong?

If it were up to me, I would not mind if you were selling your legally obtained DVD's on the street. Unfortunately, your local legislature for reasons that may be fair or unfair does not agree with me. Your local legislature does not have to be "fair" or agree with me or you. It has the authority, within limits imposed by the State and Federal Constitution, to regulate commercial activity like selling goods on sidewalks.

Perhaps you did not catch that I was able to get the charges dismissed. I relied upon the California State Constitution, and case law in Chalmers v City of Los Angeles. As is the case with all case law, they are usually very narrow in their rulings, and certainly Chalmers is narrow, and is different than my case was in many ways, and I was not certain that Chalmers would work in my favor, but my friend, I tell you truly that when I argued Chalmers, the judge knew the case and did not need me to explain what was ruled in that case and it was then that this judge dismissed my case. I suspect this is because the judges, police officers, prosecutors and the city legislature all know they have kept on the books an odious ordinance to their own State constitution, but keep it on the books in hopes of snaring people ignorant of the law, and when faced with people who are not, will simply back off. My frustration with you my friend, is that many of your arguments seem to only perpetuate ignorance of the law. I am not arguing you are ignorant of the law, only that your dismissal of those not lawyers yet who clearly understand the law, does us all a great disservice.

Natural Law may be a wonderful philosophy and a good policy in drafting rules, but it is not THE LAW in this country.

The Constitution for the United States of America, and virtually all State constitutions are rooted in both Natural Law and common law. I cited Article I, Section 1 of the California State constitution that clearly acknowledges inalienable rights, and this my friend is Natural Law.

Our Constitution, which allows legislatures to make statutes is the law. Our laws are far from perfect, but we need them to ensure some sense of order.

Our Constitution is the Supreme Law of the Land, and as I have stated is rooted in Natural Law. That Constitution has not allowed Congress to make any legislation they decide is convenient for them.

As imperfect as our laws are, the one thing they have is that they are relatively mechanical. We have numerous statutes, regulations, and court cases to guide our behavior. I think several laws are unfair or disfavor people like myself, but at least I know they are unfair and/or they disfavor me. If we were guided solely by "natural law" then who would know what the law is?

The Law as in Natural Law is not imperfect and applies universally to everyone. Your imperfect laws, or to be fair to you, the imperfect laws you advocate do not apply universally and this makes them, at the very least, suspect as law, and the legislation that they are written on, merely serves as evidence of law and is not the law itself. As to your assertion that at least you know some of these imperfect laws are unfair; slaves knew or know they are slaves but this does not free them of slavery. As to your question about Natural Law, all law is self evident, not all legislation is, and as a tax attorney you should know this better than anyone. If it is not self evident, it probably isn't law, and merely legislation.

If I were selling DVD's on a particular street corner for years and had a regular customer base, would "natural law" allow you to come onto the street corner had been using and set up shop? Does "natural law" give me a right to the goodwill I earned over the years and is it possible you are free-riding off my goodwill by selling DVD's on my corner? Or does "natural law" say the street corner belongs to the first person who sets up shop for the day.

Natural Law would indeed allow me to set up shop, assuming I hadn't insisted on setting that shop up on the exact same spot you had in effect pushing you out so I may sell my own product without competing. Natural Law embraces competition. Natural Law most certainly does give you the right of goodwill you have earned over the years, and because of that I might discover that I just can't compete, and would have to seriously consider finding a different street in which to sell my product. Unless I am able to earn my own goodwill by offering a better price without sacrificing my own prosperity. First come first serve may be the rule of law in street vending, but if that is the case, then you being a long time seller would know that and get up early enough to secure your spot.

reply to post by Jean Paul Zodeaux


I guess it is arguable that the Constitution is protective of our inalienable rights, in the sense it that enables the federal gov't to protect our inalienable rights.

I am not arguing that the Declaration of Independence is law, which I know you know, however I am using it as a tool to explain my position on the Constitution. As you may use the Federalist/Anti-Federalist papers, in an effort to give a "inside view" so to speak.

Any comments on my position? Am I simply ignorant? Do you have any recommended readings for me?

The Constitution of Virginia opens Article I, Bill of Rights;

A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government.

Sounds lovely, eh? Can't wait until we live in a place like that!

Until then, Ignorantia legis neminem excusat!

[edit on 5/22/2010 by ComeAndGetMe]

[edit on 5/22/2010 by ComeAndGetMe]

reply to post by ComeAndGetMe

Any comments on my position? Am I simply ignorant? Do you have any recommended readings for me?

I did not comment on your position so much because I seem to be in agreement with it, which I suppose is rather odd, that I would only choose to comment on that which I disagree with, but truthfully I have been getting more work lately as a writer and it keeps me from taking too much to time in posting here. Fortunately my work allows me to, when taking breaks, come into this site and spend a few minutes or so. As to the recommended reading, a small book by Frederic Bastiat called The Law profoundly changed my life and the way I view law and the world. I think you will enjoy it much if you haven't all ready read it.

Thanks for sharing that Section of the Virginia constitution, and do not worry my friend, we will keep up the good fight until that world has been forged!