3 ms·

Another tragedy of positively defined law. As soon as you give someone a "bill of rights" you can then do everything up to the prohibited limit.

hga 13y ago
Indeed, and that was an argument the Federalists made against the Bill of Rights. But then again, does negatively defined law ever work in practice? Sure doesn't seem to in a whole bunch of areas that don't touch on the 1st through 8th Amendments.
- mpyne 13y ago
  Why would the Federalists make that argument against a Bill of Rights that contained the Ninth Amendment?
  - hga 13y ago
    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Well, for one thing the 9th Amendment doesn't address the problems with the positive rights that most of the other ones establish or acknowledge.
    - mpyne 13y ago
      What's problems are those? (No snark, just honest confusion)
      - hga 13y ago
        Well, to take the area of Constitutional jurisprudence I'm most familiar with, look at all the effort that was put into claiming the 2nd Amendment created a "collective" right instead of acknowledging an individual right. This interpretation caused more than a little mischief, especially in state courts against their own versions of the 2nd Amendment, but also in at least one lower level Federal court decision, but a bottom line was that it was rejected 9-0 in Heller (this is a good article on all that: http://davekopel.org/2A/Mags/Collective-Right.html http://davekopel.org/2A/Mags/Collective-Right.html). The Federalists' argument was that a government of limited powers could never even do such things. Unfortunately, the subsequent history of "a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce [us to] absolute Despotism...."
        mpyne 13y ago
        Well, the Federalists didn't think far enough ahead. We have CPUs that are Turing complete with only a single instruction, so in retrospect simply limiting the number of abilities the government had wouldn't have been sufficient in the long term. It's easier to say that in retrospect but I'm glad that the debate process for the Constitutional ratification led to the Bill of Rights being drafted in a compromise. I'm not sure how to take the last sentence though. I know who the Continental Congress felt the despot was; who is the despot now?
        hga 13y ago
        A "Despotism" can be run by an oligarchy, which is what our ruling class has become. And "absolute Despotism" is a reasonably accurate description of where we seem to be headed, given a minimal allowance for rhetorical flourishes. Quite seriously, re-read the Declaration if you haven't lately, history does tend to repeat itself, for people remain people.
        mpyne 13y ago
        I've actually read the Declaration recently enough to have linked a good part of it into one of the innumerable HN discussion threads around here. And if this is an absolute despotism then I'll need to know what word to use for what despotism meant when Jefferson wrote those words, so that I can keep my thoughts straight.
  - eloisius 13y ago
    I think the non-legalese gist of it was that by enumerating the right of citizens, it's too easy to get around them on technicalities. "Reasonable suspicion? Sure, we can come up with reasonable." A negative definition puts the ball on the other side of the court. "Being searched, where does it say specifically that you have a right to search me?"

hga 13y ago

Indeed, and that was an argument the Federalists made against the Bill of Rights. But then again, does negatively defined law ever work in practice? Sure doesn't seem to in a whole bunch of areas that don't touch on the 1st through 8th Amendments.

mpyne 13y ago
Why would the Federalists make that argument against a Bill of Rights that contained the Ninth Amendment?
- hga 13y ago
  "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Well, for one thing the 9th Amendment doesn't address the problems with the positive rights that most of the other ones establish or acknowledge.
  - mpyne 13y ago
    What's problems are those? (No snark, just honest confusion)
    - hga 13y ago
      Well, to take the area of Constitutional jurisprudence I'm most familiar with, look at all the effort that was put into claiming the 2nd Amendment created a "collective" right instead of acknowledging an individual right. This interpretation caused more than a little mischief, especially in state courts against their own versions of the 2nd Amendment, but also in at least one lower level Federal court decision, but a bottom line was that it was rejected 9-0 in Heller (this is a good article on all that: http://davekopel.org/2A/Mags/Collective-Right.html http://davekopel.org/2A/Mags/Collective-Right.html). The Federalists' argument was that a government of limited powers could never even do such things. Unfortunately, the subsequent history of "a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce [us to] absolute Despotism...."
      - mpyne 13y ago
        Well, the Federalists didn't think far enough ahead. We have CPUs that are Turing complete with only a single instruction, so in retrospect simply limiting the number of abilities the government had wouldn't have been sufficient in the long term. It's easier to say that in retrospect but I'm glad that the debate process for the Constitutional ratification led to the Bill of Rights being drafted in a compromise. I'm not sure how to take the last sentence though. I know who the Continental Congress felt the despot was; who is the despot now?
        hga 13y ago
        A "Despotism" can be run by an oligarchy, which is what our ruling class has become. And "absolute Despotism" is a reasonably accurate description of where we seem to be headed, given a minimal allowance for rhetorical flourishes. Quite seriously, re-read the Declaration if you haven't lately, history does tend to repeat itself, for people remain people.
        mpyne 13y ago
        I've actually read the Declaration recently enough to have linked a good part of it into one of the innumerable HN discussion threads around here. And if this is an absolute despotism then I'll need to know what word to use for what despotism meant when Jefferson wrote those words, so that I can keep my thoughts straight.
- eloisius 13y ago
  I think the non-legalese gist of it was that by enumerating the right of citizens, it's too easy to get around them on technicalities. "Reasonable suspicion? Sure, we can come up with reasonable." A negative definition puts the ball on the other side of the court. "Being searched, where does it say specifically that you have a right to search me?"