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I think that's where constitutional "scholars" go wrong. The "rights" do not exist in the absence of a secular social contract. What they mean is that there's

I think that's where constitutional "scholars" go wrong. The "rights" do not exist in the absence of a secular social contract. What they mean is that there's no reasonable, fair social contract they can imagine that lacks those rights. It's perfectly possible for a social contract to lack certain "inalienable" rights, though. All you need is a pure, unconstrained democracy to see that. Unfortunately, interpreting the Constitution as a living document and reading new rights (like the "right to privacy") into the Bill of Rights and/or the 14th Amendment -- "because of course the founders would ideologically agree with us that individuals have new rights A B and C" -- leaves the door open not only to good interpretations of rights, but bad interpretations of rights dictated by the majority against minorities, or dictated by powerful minorities against a disinterested majority.

skwirl 13y ago
The 9th amendment seems to me to protect rights not explicitly enumerated in the Constitution by the Constitution itself. It also gives judicial power of the courts to all cases arising under the Constitution (Article 3, Section 2). These seem to give the courts the responsibility to protect rights retained by the people that aren't explicitly enumerated by the Constitution. Of course, many people do what I see as Scalian mental contortions to arrive at a different conclusion. There certainly have been cases where "rights" conflicted. One would be the "property rights" of slave owners (slaves being the property in question) vs. the innate rights of the slaves themselves. However, I see this problem of "bad rights" as having been solved by the 14th amendment. What bad interpretations of rights could you see that do not conflict with an existing amendment?
- harshreality 13y ago
  When a flexible, "living" interpretation is allowed, a religious majority could view civil liberties and rights through the lens of their religion, particularly when there is some connection (which they love to exaggerate) between their religion and the country's founding principles. Hypothetically speaking, of course.
  - skwirl 13y ago
    Yeah, I think that that is prevented pretty clearly by the first amendment. And the 14th amendment wouldn't allow for granting one class of citizens rights over/at the expense of another. As for the bigger picture, in my mind the debate over whether or not the Constitution is "living" is silly. Of course it is living. Unless you can send every case back to 1787 you'll never know what the founders intended. You interpret the meaning of what they wrote through the context of your modern life. Trying to use their writings of the time for context just exponentially increases the text that can be construed for any purpose, and you still end up reading the context through the context of modern life. And the founders almost certainly had different and unique interpretations of the constitution that they all voted for. If a religious majority took over all three branches of government, then what can you do? The constitution won't save you. The constitution grants them the power to look at it through their own lens. No other lens is possible. The constitution is "living" then whether you want it to be or not.

skwirl 13y ago

The 9th amendment seems to me to protect rights not explicitly enumerated in the Constitution by the Constitution itself. It also gives judicial power of the courts to all cases arising under the Constitution (Article 3, Section 2). These seem to give the courts the responsibility to protect rights retained by the people that aren't explicitly enumerated by the Constitution. Of course, many people do what I see as Scalian mental contortions to arrive at a different conclusion. There certainly have been cases where "rights" conflicted. One would be the "property rights" of slave owners (slaves being the property in question) vs. the innate rights of the slaves themselves. However, I see this problem of "bad rights" as having been solved by the 14th amendment. What bad interpretations of rights could you see that do not conflict with an existing amendment?

harshreality 13y ago
When a flexible, "living" interpretation is allowed, a religious majority could view civil liberties and rights through the lens of their religion, particularly when there is some connection (which they love to exaggerate) between their religion and the country's founding principles. Hypothetically speaking, of course.
- skwirl 13y ago
  Yeah, I think that that is prevented pretty clearly by the first amendment. And the 14th amendment wouldn't allow for granting one class of citizens rights over/at the expense of another. As for the bigger picture, in my mind the debate over whether or not the Constitution is "living" is silly. Of course it is living. Unless you can send every case back to 1787 you'll never know what the founders intended. You interpret the meaning of what they wrote through the context of your modern life. Trying to use their writings of the time for context just exponentially increases the text that can be construed for any purpose, and you still end up reading the context through the context of modern life. And the founders almost certainly had different and unique interpretations of the constitution that they all voted for. If a religious majority took over all three branches of government, then what can you do? The constitution won't save you. The constitution grants them the power to look at it through their own lens. No other lens is possible. The constitution is "living" then whether you want it to be or not.