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Careful, there: you're falling victim to historical revisionism in assuming there was a clear unified "original intent" that we can discern, or that the fight w

Careful, there: you're falling victim to historical revisionism in assuming there was a clear unified "original intent" that we can discern, or that the fight was between "the federal government" and "the states". The writing of the Constitution, and the fight over its ratification and the initial amendments (which had opponents who worried just as equally about enumeration of rights being used to deny others later -- the Ninth Amendment tried to solve this but people today still argue "well, it's not in the Constitution so it's not a right") was complex and full of individuals with all sorts of motivations that can't easily be boiled down to such simple terms. And that's without getting into the fights over the Elastic Clause, or the Commerce Clause, or the other bits that underlie many of the things the federal government does today.

notthegov 11y ago
There's nothing complex or ambiguous about it. The United States' organic law is based in the acknowledgment of natural rights. Academics can debate if this has any legal enforcement or if the right of revolution is valid, but it doesn't matter to me. My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions. The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime. Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up. In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.
- sowhatquestion 11y ago
  > My rights existed prior to the Bill of Rights and the government "Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets? Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.
  - JoeAltmaier 11y ago
    That's what the documents say - natural rights codified. If we no longer believe that, we need a new set of documents. And there are plenty of folks who believe that. If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
    - vertex-four 11y ago
      > Where does that come from? It comes heavily from what you've been taught is important, which, funnily enough, is culture-dependent. A good many people would, for example, argue that a person has a right to shelter and sustenance, and to demand that from others when they can't access it - but other people will argue that people have a right to refuse to give resources to others, even up to the point of refusing taxation. One might argue that one has a right to work without discrimination or harassment - others might argue in favour of freedom of association and free speech, "if you don't like it you don't have to work for them". To move even further away from currently implemented systems, one might argue that private property is not a right, which is actually entirely reasonable - property is solely a "right" to abridge others' rights, if we're going by the "what's a right is whatever you're allowed to do if nobody stopped you" definition. We could even argue that the ability to break a contract without retribution must be protected as a right, in some schools of thought. What rights "should" be protected - and in what circumstances - winds up being a matter of the opinion of the people who decide which rights to protect. There is no formal system of logic which starts off with no assumptions, and many of the ones which back politics start off with the goal - to protect people's rights, we must... protect people's rights. Even the idea that a founding document should primarily enumerate rights is because of what you've been taught - why not enumerate duties as well, or instead? Why not write a manifesto with a general goal and proposed method of getting there and call that your founding document? What even is the goal of a founding document? Why is abridging your ability to do whatever you want to any degree abhorrent - and why is abridging that ability in certain circumstances not so? Is it impossible to come up with a stable system which holds up a different ideal? I don't really expect all these questions to be answered, as the exact answers are nearly entirely pointless - the point is that these questions can all be asked and different answers can be reached, many of which make sense. For example, an argument that nobody has a duty to feed and shelter somebody on the edge of starvation, as that harms the person doing so, entirely ignores the harm that this protected right has on the person about to die of starvation - although of course to bring that up requires that the goal of your system of protected rights is to reduce harm, which may not be the case. However, the only way "we must protect all these listed rights at all costs, ignoring all other input" makes sense is if the goal of your system is solely to protect those rights. I don't personally feel that's a very useful thing to do, as it's tautological. A good many people will disagree.
- deleted 11y ago
  [deleted]
- duaneb 11y ago
  > My rights existed prior to the Bill of Rights and the government. What are you, Locke? It's poetic, but it also doesn't have much meaning without society and governments that recognize your rights.
- tptacek 11y ago
  "Natural rights" influence the Constitution (especially insofar as they influenced English Common Law, which is an even more powerful influence on the Constitution). But it's very hard to argue that they control, because "natural rights" mean different things to different people. (It is also the case that purported natural rights are frequently in tension with each other; there's no "natural tiebreaker" between "natural rights", which makes it hard to rely on them to resolve controversies.) If you want to make an argument that the Constitution must implicitly protect some particular natural right not expressed in the text, it's helpful to be specific. Often, it's straightforward to infer the intent of the framers from their actions immediately after ratification.
- XorNot 11y ago
  Many of the framers owned slaves. They had some pretty specific thoughts about what 'natural' meant.
  - EdSharkey 11y ago
    The process of forming of the union was complex, and there was a negotiation to bring all parties together. History played out the way you wanted, slavery was abolished after a bloody civil war. Damn whoever put this simplistic "the framers were slavers so the lessons they taught can be ignored" notion in your head. Individual freedom is not an outdated concept! You and others here just add ignorant poison to a good debate.
jMyles 11y ago
Most of what you say is reasonable and apparently historically accurate, but > the Commerce Clause was certainly, definitely, absolutely not understood by any notable thinker at the time of the drafting of the constitution to mean what it has been interpreted to mean today (ie, Raich v. Ashcroft etc). I think there is basically unanimity among legal scholars on this point.
- afarrell 11y ago
  You should read the middle chapters of Ron Chernow's biography of Alexander Hamilton, because he had a pretty expansive view of the "Necessary and Proper" clause.
  - jMyles 11y ago
    Yep, that's the "elastic clause" noted by GP.

notthegov 11y ago

There's nothing complex or ambiguous about it. The United States' organic law is based in the acknowledgment of natural rights. Academics can debate if this has any legal enforcement or if the right of revolution is valid, but it doesn't matter to me. My rights existed prior to the Bill of Rights and the government. If a local, state, federal or international government tries to diminish or deny my rights, I will fight to alter or abolish their policies and their institutions. The FBI, NSA and DHS as a whole are enemies of human freedom and a threat to classical liberalism. There is no enumerated power that gives the federal government the authority to create a federal police force and what the NSA has done is unequivocally a crime. Pass a Constitutional Amendment to make it legal. Abolish the FBI. And build a new organization from the ground up. In the future, there won't be ISIS and there won't be the FBI. That is, if the future is of a better world.

sowhatquestion 11y ago
> My rights existed prior to the Bill of Rights and the government "Existed" in what sense!? Are they deducible by pure reason? Were they written on stone tablets? Seriously though, the Constitution and the Declaration of Independence may refer to the idea of natural rights, but in my opinion this is due to the prevailing state of philosophy and political theory at the time, and doesn't bind Americans to forever understand their own rights in terms of "prior" natural rights that are "later" secured by the government.
- JoeAltmaier 11y ago
  That's what the documents say - natural rights codified. If we no longer believe that, we need a new set of documents. And there are plenty of folks who believe that. If we were writing new founding documents, we'd have a pretty good idea of what 'should' be rights. Where does that come from?
  - vertex-four 11y ago
    > Where does that come from? It comes heavily from what you've been taught is important, which, funnily enough, is culture-dependent. A good many people would, for example, argue that a person has a right to shelter and sustenance, and to demand that from others when they can't access it - but other people will argue that people have a right to refuse to give resources to others, even up to the point of refusing taxation. One might argue that one has a right to work without discrimination or harassment - others might argue in favour of freedom of association and free speech, "if you don't like it you don't have to work for them". To move even further away from currently implemented systems, one might argue that private property is not a right, which is actually entirely reasonable - property is solely a "right" to abridge others' rights, if we're going by the "what's a right is whatever you're allowed to do if nobody stopped you" definition. We could even argue that the ability to break a contract without retribution must be protected as a right, in some schools of thought. What rights "should" be protected - and in what circumstances - winds up being a matter of the opinion of the people who decide which rights to protect. There is no formal system of logic which starts off with no assumptions, and many of the ones which back politics start off with the goal - to protect people's rights, we must... protect people's rights. Even the idea that a founding document should primarily enumerate rights is because of what you've been taught - why not enumerate duties as well, or instead? Why not write a manifesto with a general goal and proposed method of getting there and call that your founding document? What even is the goal of a founding document? Why is abridging your ability to do whatever you want to any degree abhorrent - and why is abridging that ability in certain circumstances not so? Is it impossible to come up with a stable system which holds up a different ideal? I don't really expect all these questions to be answered, as the exact answers are nearly entirely pointless - the point is that these questions can all be asked and different answers can be reached, many of which make sense. For example, an argument that nobody has a duty to feed and shelter somebody on the edge of starvation, as that harms the person doing so, entirely ignores the harm that this protected right has on the person about to die of starvation - although of course to bring that up requires that the goal of your system of protected rights is to reduce harm, which may not be the case. However, the only way "we must protect all these listed rights at all costs, ignoring all other input" makes sense is if the goal of your system is solely to protect those rights. I don't personally feel that's a very useful thing to do, as it's tautological. A good many people will disagree.
deleted 11y ago
[deleted]
duaneb 11y ago
> My rights existed prior to the Bill of Rights and the government. What are you, Locke? It's poetic, but it also doesn't have much meaning without society and governments that recognize your rights.
tptacek 11y ago
"Natural rights" influence the Constitution (especially insofar as they influenced English Common Law, which is an even more powerful influence on the Constitution). But it's very hard to argue that they control, because "natural rights" mean different things to different people. (It is also the case that purported natural rights are frequently in tension with each other; there's no "natural tiebreaker" between "natural rights", which makes it hard to rely on them to resolve controversies.) If you want to make an argument that the Constitution must implicitly protect some particular natural right not expressed in the text, it's helpful to be specific. Often, it's straightforward to infer the intent of the framers from their actions immediately after ratification.
XorNot 11y ago
Many of the framers owned slaves. They had some pretty specific thoughts about what 'natural' meant.
- EdSharkey 11y ago
  The process of forming of the union was complex, and there was a negotiation to bring all parties together. History played out the way you wanted, slavery was abolished after a bloody civil war. Damn whoever put this simplistic "the framers were slavers so the lessons they taught can be ignored" notion in your head. Individual freedom is not an outdated concept! You and others here just add ignorant poison to a good debate.

jMyles 11y ago

Most of what you say is reasonable and apparently historically accurate, but > the Commerce Clause was certainly, definitely, absolutely not understood by any notable thinker at the time of the drafting of the constitution to mean what it has been interpreted to mean today (ie, Raich v. Ashcroft etc). I think there is basically unanimity among legal scholars on this point.

afarrell 11y ago
You should read the middle chapters of Ron Chernow's biography of Alexander Hamilton, because he had a pretty expansive view of the "Necessary and Proper" clause.
- jMyles 11y ago
  Yep, that's the "elastic clause" noted by GP.