"Critiques Of Libertarianism"

[Steff]

Okay, if it is a constitutionally protected right, then you'll have no problem naming the part of the constitution which enumerates it.

Certainly:

Amendment IX

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

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

By the way, according to Roe v Wade, abortion is also a right. Do you agree with this? The fact is, many rights are made up by the Supreme Court. Just because they court says it doesn't mean it's true, nor does it mean there is any premise for assuming such a right exists.

You forget the basic premise of rights, in that they come with responsibilities, namely no infringing on anothers rights. The baby in this situation has rights.

That is to say, the 1st Amendment prohibits denomination in government. This is the tyranny they feared; it happened in England, Virginia, and Massachusetts. When they say "establishment of religion," they're talking about church.

No.

Article VI Clause 3 states:

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

If they intended no religious test to be a part of government than they clearly did not want religion involved in government. I agree they did recognize that rights and property came from the creator (God) but many of the founders were not Christians, especially Jefferson.

Most of the founding fathers believed religion and morality inseperable and necessary to a moral society but again they did not form our goverment on the basis of Christianity.

[Cherub_Rocket]

Amendment IX

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

The Bill of Rights has nothing to do with individual rights; it has to do with limiting the Federal government in order to protect rights "retained by the people." This is because rights aren't enumerated -- it would be dangerous to consider them such.

Do you know WHY Madison initially opposed the Bill of Rights?

The 9th Amendment is a restriction upon Congress to prevent them interfering in rights. The 9th Amendment cannot be enforced to the States. In fact, none of the Bill of Rights was enforced onto the States until the early 20th century.

Your broad interpretation of the 9th Amendment is a loophole for Federal tyranny, particularly judicial activism. You've said you're opposed to it, yet clearly you are not. Hale vs. Henkel was pulled out of a box of Lucky Charms. But you support it, despite the lack of Constitutional framework to support the ruling.

The Supreme Court has made up a whole bunch of rights via the 9th Amendment, such as the "right to privacy," which includes abortion. It appears that you support judicial activism when it suits your personal beliefs.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Exactly. A State can issue marriage licenses without Federal interference, because it is a matter of State jurisdiction. Hale vs. Henkel is an illegitimate ruling because, for one thing, the Supreme Court has no legitimate power of enforcement; and second, the 9th Amendment is a mere affirmation that rights are not enumerated, not an enumeration to the Supreme Court to decide upon which rights are protected under the States.

Not only does your interpretation of the 9th Amendment render the 10th Amendment meaningless, it opens a window of judicial tyranny. This is how we got Roe v Wade.

You forget the basic premise of rights, in that they come with responsibilities, namely no infringing on anothers rights. The baby in this situation has rights.

But most libertarians do not agree with you. Are you willing to allow the Supreme Court the authority to decide which rights are protected under a broad interpretation of the 9th Amendment, or would you prefer the States decide? If you choose the former, that could mean abortion will remain "legal" throughout America.

If you choose the latter, however, you will have to forget Hale vs. Henkel; it is simply not a legitimate ruling.

No.

Article VI Clause 3 states:

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

When the founders spoke of religion, they are referring to denomination and sect. This is reflected in the writings of George Mason, the "Father of the Bill of Rights," who wrote up the first draft of the 1st Amendment before the more concise version was ratified.

Please read the following bill proposed by Dr. Ron Paul in Congress. You will continue to resist me, so perhaps hearing it from a libertarian will settle your doubts.

http://www.thelibertycommittee.com/hr4922.htm

Most of the founding fathers believed religion and morality inseperable and necessary to a moral society but again they did not form our goverment on the basis of Christianity.

Then why would Madison twice sign into law Federal aid to Bible Societies?

Regardless of your answer, I cannot in good conscience continue to participate in this debate, as I did not come here to get wrapped up in political differences. So, whether you choose to distort my argument or not is entirely up to you.

An alternative would be to not reply at all.

That would, after all, save you from having to disagree with Ron Paul.

(Note to readers: Ron Paul was the Libertarian candidate for President in 1988, and serves in Congress as a Republican from the 14th District of Texas. He is more conservative than the mainstream Libertarian Party).

Edited December 9, 2004 by Cherub_Rocket

[Steff]

The Bill of Rights has nothing to do with individual rights; it has to do with limiting the Federal government in order to protect rights "retained by the people." This is because rights aren't enumerated -- it would be dangerous to consider them such.

Nothing to do with individual rights? There are no other kind. ONLY individuals have rights. The bill of rights was a list of rights primarily based upon the things that caused the American Revolution.

Do you know WHY Madison initially opposed the Bill of Rights?

Yes, it was the reasoning from Alexander Hamilton that a bill of rights would make the government have the assumption that the only rights people had were listed there.

The 9th Amendment is a restriction upon Congress to prevent them interfering in rights. The 9th Amendment cannot be enforced to the States. In fact, none of the Bill of Rights was enforced onto the States until the early 20th century.

Maybe it was never enforced, but if only individuals have rights, than even states have no jusidiction to take rights away from the people.

Your broad interpretation of the 9th Amendment is a loophole for Federal tyranny, particularly judicial activism. You've said you're opposed to it, yet clearly you are not. Hale vs. Henkel was pulled out of a box of Lucky Charms. But you support it, despite the lack of Constitutional framework to support the ruling.

The Supreme Court has made up a whole bunch of rights via the 9th Amendment, such as the "right to privacy," which includes abortion. It appears that you support judicial activism when it suits your personal beliefs.

No, I was advocating that the supreme court was right in the claim that people have an unlimited right to contract. That right is guaranteed by amendment IX. The Supreme Court's ruling is only legally binding on the parties involved, but it does follow that the same ruling would be made when a similar case came through.

Again you are missing the point that abortion infringes on the Baby's rights. Whether someone has a right to privacy would not apply if they are infringing upon the rights of the child.

Exactly. A State can issue marriage licenses without Federal interference, because it is a matter of State jurisdiction. Hale vs. Henkel is an illegitimate ruling because, for one thing, the Supreme Court has no legitimate power of enforcement; and second, the 9th Amendment is a mere affirmation that rights are not enumerated, not an enumeration to the Supreme Court to decide upon which rights are protected under the States.

Not only does your interpretation of the 9th Amendment render the 10th Amendment meaningless, it opens a window of judicial tyranny. This is how we got Roe v Wade.

No, my interpretation of the 9th amendment is the right one. If people have rights, the federal government or the states cannot abridge those rights. If they can be taken away or I need a license, it is not a right but a privlege.

But most libertarians do not agree with you. Are you willing to allow the Supreme Court the authority to decide which rights are protected under a broad interpretation of the 9th Amendment, or would you prefer the States decide? If you choose the former, that could mean abortion will remain "legal" throughout America.

If you choose the latter, however, you will have to forget Hale vs. Henkel; it is simply not a legitimate ruling.

I don't want the federal government or the states deciding what rights I have. That is not within their power. My rights are predicated on three things:

[Dittomonkey911]

1. The original intent of the founders has been perverted.

The founders of the USA were a contentious lot, who hardly agreed on any one thing, let alone libertarian notions. It is well documented that the Constitution and Bill of Rights are compromises amongst them: few agreed wholeheartedly with any particular part. Thus, looking to the founders for "original intent" is silly: it will vary amongst them. Not to mention that "original intent" (or original understanding) is just as open to interpretation as the Constitution itself because while there is lots of explicit data, it is from many contradictory sources. For example, Judge Bork presents notably non-libertarian versions of original intent.

I think the best way to interpret the constitution is the way the founders explicitly specified in the Constitution: look to the courts, especially the Supreme Court. The Constitution leaves the method of its interpretation by the court entirely to the court to decide. This begs the question of how to judge the interpretive philosophies of the possible justices, but libertarians seldom get that far.

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Federalist No. 78.

There is no reason short of worship of the founders to presume that the Supreme Court is less capable than the founders. Indeed, many libertarians from outside the US find the authority of the founders unconvincing. One writes: "As a Canadian, I don't give a [darn] what the `founders' intended. I hate it when a net.opponent trots out some bit of tired U.S. history as a most holy of holies, not to be questioned."

Jefferson himself said this plainly: "Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment... laws and institutions must go hand in hand with the progress of the human mind... as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times.... We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors."

I'll let Justice Scalia answer this one, The following Comes from his Book "A matter of Interpretation: The Federal Courts and the Law."

Perhaps the most glaring defect of a Living Constitutionalism, next to its incompatibility with the whole antievolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon which is to be the guiding principle of the evolution. Panta rei is not a sufficiently informative principle of constitutional interpretation. What is it that the judge must consult to determine when, and in what direction, evolution has occured? Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think it is inevitably so, which means that evolutionism is simply not a practical constitutional philosophy.

I do not suggest, mind you, that originalists always agree upon their answer. There is plenty of room for disagreement as to what original meaning was, and even more so how that original meaning applies to the situation before the court. But the originalist at least knows what he is looking for: the original meaning of the text. Often-indeed, I dare say usually-that is easy to discern and simply to apply.

Seventy Five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought it could be, despite the constitutional guarentee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence not in 1920, guarantee equal access to the ballot but permited distinctions not only of age but of property and of sex. Who can doubt that if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the instrumentality of change?

If the Courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.