Constitutional Amendment to Protect our Inalienable Rights

Discussion in 'Civil Liberties' started by Shiva_TD, Dec 18, 2011.

  1. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    We have the US Constitution that establishes the structure of our government as well as providing for the protections of our inalienable Rights. It is the protections of the Rights of the People that was established by the Declaration of Independence which justifies the very existance of government.

    Article III Section 2 delegates the jurisdiction to the US Supreme Court to make ultimate decisions related to the constitutionality of all federal laws, treaties, state Constitutions and state laws under the US Constitution. I have no problem with this as the Supreme Court should have this role and responsibility. My concerns relate to the criteria that is being applied of a simple majority rule in the determination related to whether a law is constitutional or not. This leaves the Rights of the People hinging often upon a single vote where those justices decenting always produce very valid arguments as to why the law is unconstitutional. In many cases the vote is 5:4 where an individual judge ultimately decides upon whether the infringment upon the Rights of the People, and all laws reflect an infringement upon the Rights of the People, is constitutional.

    While I'm unaware of any arguments against the unanimous decisions of the US Supreme Court we can find numerous cases where there were arguments that the Supreme Court rendered an invalid decision related to law based upon split-decisions.

    A couple of cases in point being the Dred Scott v. Sandford decision which was 7:2 to support the law and the legal tender decision in Julliard v. Greenman which was an 8:1 both of which still generate controversy today.

    http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford

    http://en.wikipedia.org/wiki/Juilliard_v._Greenman

    My position, and I've expressed this on numerous occations, is that for any law to be Constitutional there should be no doubt related to it's Constitutionality if we truly seek to protect the inalienable Rights of the People. I believe that the following proposed amendment should be addressed by Congress, approved, and submitted to the States for ratification:

    I believe this is the only way we can ensure the protections of the Rights of the People against the tyranny of our own government. All laws and actions of our government, whether at the federal or state level, should meet the criteria of clear constitutionality if subjected to review by the US Supreme Court. There is no room for doubt when it comes to protecting the Rights of the People from the actions of our government.
     
  2. botenth

    botenth Banned

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    You need people who are intelligent and sincere.
     
  3. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    I have found that Supreme Court justices are very intelligent and sincere when making a decision which is why I would give more power to them in declaring any law or government action unconsitutional as we should not have laws or government actions that are of dubious Constitutionality. If even one justice, upon review, reaches the determination that a law or action is unconstitutional then we don't need the law or action by government.

    The Constitutional protections of the Rights of the People should take precedent over government authority.
     
  4. PatrickT

    PatrickT Well-Known Member

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    The rights enshrined in the Constitution are, and always have been, under constant attack from the government. Another amendment to be ignored doesn't seem to be the answer.

    I think amendments are needed not to enshrine rights which we already have but to control and out-of-control federal government.
     
  5. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    The amendment I've proposed would do just that. It would lead to always limiting government interventionism whenever there is a question of Constitutionality related to the laws or actions of government.

    What we have with the current "majority rule" in Supreme Court decisions is the constant infringment by government upon the People based upon the dubious Constitutionality of laws and government actions.
     
  6. DaveInFL

    DaveInFL Banned

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    I like it. It would pretty much shut down the govt since a unanimous decision is almost impossible.

    The SC Justices are all smart. That doesn't mean they make the right decisions. New London v Kelo for example. Patriot Act, McCain Feingold, both had parts passed by the SC. The SC has become another legislative arm.
     
  7. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    Unanimous decisions are not almost impossible as they've happened quite often in American history and, of course, this would not "shut down government" at all as most legislative acts are Constitution. It would limit the ability of government to exceed it's Constitutional authority though.

    Let's look at the examples.

    New London v Kelo was a 5-4 decision which allowed the government take land from the People based upon eminent domain. Under the proposed Amendment the government would not have been allowed to confiscate private property perserving the Right of Property of the People. It should have been declared unconstitutional.

    The Supreme Court has had more than one ruling on different issues related to the Patriot act and related "anti-terrorist" laws and all of them have been split decisions. Each one of those provision infringed upon the Constitutional Rights of the American People and we would have been better off without any of them. The most of the Patriot Act should have been declared unconstitutional.

    Key portions of McCain Feingold were struck down by a 5-4 Supreme Court decision because it infringed upon the First Amendment's protected Right of Freedom of Speech. Is anyone really opposed to Freedom of Speech? Why is the government infringing upon the Freedom of Speech for Americans related to the political process? McCain Feingold catered to the elitist politicians in Washington and did not benefit the American People. There should be no limitations on political funding but disclosure can and should be required related to the sources of that funding. That would not be unconstitutional IMO.

    We should also include the 1937 Supreme Court 7-2 decision that upheld Social Security and that decision is still argued today as being unconsitutional. Social Security, and it's bastard child Medicare, comprise about 1/3rd of all federal expendatures and yet there is not enumerated power in the Constitution to support these programs. Instead FDR and later LBJ (weird how they're both presidents referred to by their initials) and Congress didn't seek a Constitutional amendment to authorize these programs because they knew they couldn't get one so they just ignored the Constitution and created the authority by a simple fiat of Congress. Strange how the Patent Office is enumerated and only spends a micro-portion of total government expendatures but 1/3rd of all government expendatures didn't require enumeration in the Constitution. That makes no sense whatsoever. How can the US Congress and President obligate future workers to pay tens of trillions of dollars to support people that refused to save and invest for their own retirement today? It is literally the Theft of Property from our children by the government.

    I can think of no examples where there was a split Supreme Court decision where striking down a law wouldn't have protected the Rights of the People.
     
  8. SiliconMagician

    SiliconMagician Banned

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    Unanimous is too much to ask. I'm positive that would have profound negative unintended consequences we aren't seeing.

    A 2/3rd majority is good enough for me. 6 out of 9 justices have to agree it is constitutional. That will allow for some dissension but without a very difficult to achieve unanimity. Unanimous decisions may have succeeded in the past, but are extremely unrealistic in politics to base policy on.
     
  9. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    If we look at any specific law that might be struck down we can assume that we lived without it before and we can live without it now. Even if we look at Social Security, which many liberals support, all that would be required to make it unquestionably Constitutional would be for a Constitutional amendment authorizing it. It is rather hard to argue that Social Security is justifiable if the States wouldn't ratify an amendment to provide the Constitutional authority for it. "Obamacare" falls into this same category. How can the federal government justify it as being Constitutional when 26 states have filed lawsuits agianst it?

    When an enumerated power was not granted the criteria for the federal government to obtain Constitutional authority was intentionally set high but it was not set impossibly high. Instead of a 2/3rds majority in the Supreme Court it requires a 3/4ths majority of the States. If a law or action of the government is authorized under the Constitution it is not hard for the Supreme Court to reach a unanimous decision to support it. If it is not clearly authorized by the Constitution, which is where split decisions come from, then to error on the side of the People by declaring the law unconstitutional is the right thing to do.

    We have a very good means for revising the Constitution that would allow virtually anything (not advocating that "anything" is a good choice) to be Constitutional so why not use that process as it was intended? Instead we're ignoring the process of delegating authority to the federal government through the Constitution and instead allowing the Supreme Court to make these decisions. The expansion of government powers is not within the authority of the Supreme Court. Only the US Constitution can expand the powers of the federal government so let's use it as intended.

    In cases of dispute where a law or action would be unconstitutional based upon a requirement for a unanimous decision by the SCOTUS we always have the amendment process. If an amendment could not be ratified to support the law or action of government then it is literally impossible to argue that the law or action is Constitutional.

    Once again we can look at Social Security. There are no provisions in the US Constitution that authorize the Congress to provide for the general welfare of the People (i.e. Article I Section 8 specifically states the Congress is to "provide for... the general Welfare of the United States" and the States are not the People). Had FDR and Congress submitted a Constitutional amendment to the States to authorize providing for the "general Welfare of the People" and had that been ratified then there would be no dispute today as to whether Social Security/Medicare are Constitutional. Had the same Amendment failed to be ratified then we would know that we, the American People as represented by our State legislatures, did not support Social Security/Medicare and those programs would not exist.

    In short, if the Constitution doesn't enumerate a power and it's needed then a Constitutional Amendment can authorize it. If a Constitutional Amendment cannot be ratified then obviously it not something we want the government doing. The 10th Amendment specifically requires the enumerated delegation of power to the Federal Government. Why is that being ignored?
     
  10. Nemo

    Nemo New Member

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    First of all, there are no "inalienable" rights. (Get that notion out of your head.) Secondly, "no doubt" is not the standard to pass constitutional muster.
     
  11. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    The apparently the founders of America were wrong and there is no reason for government or the US Constitution at all (see my signature).

    "No doubt" is not the basis for unanimous consent. "Beyond any reasonable doubt" is the foundation for unanimous consent and it works very well in our criminal justice system.
     
  12. beenthere

    beenthere New Member

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    It is when they do NOT go by what the Consitution says that I have a problem with them. Case in point. 2nd Amendment. I don't care how you cut it, the writings of the founders make it clear that "...the right of the people to keep and bear Arms, shall not be infringed". Yet it was a split decision.
     
  13. yguy

    yguy Well-Known Member

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    If by the underlined you mean to say you're not aware of any questionable unanimous SC decisions, then you are not aware of very much at all as far as American jurisprudence is concerned. The holding in Wickard v Filburn was an outright travesty of justice; and while Marbury v Madison covered too much legal ground to be similarly characterized, Marshall's infamous dictum that "t is emphatically the province and duty of the Judicial Department to say what the law is[]" (and, incidentally, his misquoting of the exceptions clause) did not elicit any dissent from the other Justices.
     
  14. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    It is exactly this type of split decision that the Amendment I propose would be applicable to. I'm not sure of exactly what case is being referred to or whether the law or government action was determined to be Constitutional or not but obviously some on the Supreme Court determined that the law or action violated "the right of the people to keep and bear arms" and that should be enough to declare the law or action unconstitutional. At best, if the law or action was supported as being Constitutional it is of questionable Constitutionality based upon a split decision. Declaring it unconstitution removes any doubt as to the law or act being an unconstitutional infringement upon the Rights of the People.

    The government, in it's actions, should never infringe upon the Constitutionally protected Rights of the People and there should never be a case of questionable infringement that a spilt decision always represents. There is little point in having Protected Rights if the government can infringe upon them in a questionable manner.
     
  15. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    Just because we might disagree with a unanimous decision that supports the Constitutionality of a law or government action does not imply that it's unconstitutional. Perhaps the Constitution isn't limiting enough.

    Let me use the case of Wickard v Filburn and an example. If one word was added to the Commerce Clause, as noted below, the decision would have been different:

    Wickard v Filburn did not deal with a direct but instead addressed an indirect action that affected interstate commerce. It was an extrapolation of "cause and effect" upon which the Court's ruling was made.
     
  16. beenthere

    beenthere New Member

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    http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

    Second Amendment to the United States Constitution


    It was a split decision, clearly the ones that voted against it went against what the framers of the Consitution had in mind. If we were to do anything I would say we should be able to get rid of any justic that voted against what historically was ment by the founders.
     
  17. yguy

    yguy Well-Known Member

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    Even if the adjective had any meaning in this context, nobody with a lick of sense gives a damm how the Court would have ruled had the Constitution said something else, hth.

    There was nothing "indirect" about what Filburn was doing. You are merely attempting to ascribe to him responsibility for effects that were, from a legal perspective, no concern of his. You might just as well claim that if I get into an online debate with someone who becomes so enraged with that he vents that rage on his child, I have "indirectly abused" that child.

    Yes, an action which Congress has no power to regulate under the commerce clause, since it was not an act of commerce, much less of the sort encompassed by the provision.

    Naturally, because the Constitution itself was insufficient to justify the Court's reasoning.
     
  18. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    In looking at the two cited cases (McDonald v. Chicago & District of Columbia v. Heller) I don't see a problem because both struck down the actions of government that infringed upon a protected Right. The "People" won in both cases because the government law/action was declared unconstitutional.

    Just because a Supreme Court justice votes on way or another does not imply that they're not qualified.

    What we should be addressing is the fact that it is always "The Government v The People" whenever the Constitutionality of the law is in question. The decision process and criteria should be identical to that required to convict a person of a crime. It should require the unanimoust decision of the Court acting as a jury to establish the Constitutionality of any law or government action. A person cannot be convicted of breaking a statutory criminal law if even one member of the jury votes against it.
     
  19. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    The Supreme Court ruled that by growing excess grain to use as feed it would result in less interstate commerce. While Filburn was selling grain that related to interstate commerce the amount he could produce was limited. His growing more where some was being used for personal purposes it meant that he could sell more which increased the amount of grain being sold interstate. The growing of additional grain for personal use above the limit established was the issue that the Court decided the case upon. He could have used grain from his allocated amount of grain to grow for personal use which would have reduced the amount of grain on the market.

    As noted it was an estrapolation because he was actually using the additional grain for private purposes. Had he not been selling any grain at all then there would have been no limit on his overall production.

    Once agian, I might disagree with how the commerce clause has been implemented but the Wilburn decision was based upon prior precedent such as the Ball case that related to the use of intrastate waterways (as I recall).
     
  20. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    Let us remember one thing as well. A requirement for a unanimous decision by the Supreme Court to establish Constitutionality does not promise a perfect court. What it does do is remove 99% of the problems created by split decisions.
     
  21. yguy

    yguy Well-Known Member

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    Can you think of any other activities an American might engage in that could affect interstate commerce?
     
  22. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    Obviously I can think of scores of activities that relate to interstate commerce but that wouldn't be my issue.

    I'm a lassie faire capitalists and don't believe in government interventionism in the economy except for the express purpose of protecting the inalienable Rights of the People with the minor exception related to facilitating commerce (e.g. establishing univeral time zones for commerce).

    I don't have any faith in the ability of Congress to intervene in commerce when I can show that the idiots are so stupid that they pass laws demonstrating that they can't even add, subtract, divide or mulitply. Would anyone like to see where Congress passed a law that establishes that 1.00 = 1.25? I wouldn't trust Congress with the change in my piggy bank much less the US economy.

    So as far as I'm concerned Congress, when it comes to the power to regulate commerce, is in way over it's head but what they're doing is allowed under the US Constitution.
     
  23. yguy

    yguy Well-Known Member

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    Then clearly the conflict of Wickard with the Constitution is no great concern of yours either.

    Please, I don't give a damm if you're a NAMBLA member at the moment. The issue here is that you think there is something magical about a unanimous decision that negates the possiblity of an unconstitutional ruling, and Wickard is glaring evidence to the contrary.
     
  24. beenthere

    beenthere New Member

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    http://www.guncite.com/gc2ndsup.html
     
  25. Shiva_TD

    Shiva_TD Progressive Libertarian Past Donor

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    As I've previously noted a requirement for a unanimous Supreme Court decision to support the Constitutionality of any act or law of government is not a "magic bullet" but instead a significant improvement over the current majority rule criteria being used. Such a requirement errs on the side of the People by greatly limiting, not eliminating, the ability of government to infringe upon the Rights of the People protected by the US Constitution.

    It is an improvement and not a magic bullet.
     

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