4 ms·

Unless I misinterpreted your first comment, I made the opposite point. Someone stated there are Constitutional rights outside those enumerated in the Constitut

Unless I misinterpreted your first comment, I made the opposite point. Someone stated there are Constitutional rights outside those enumerated in the Constitution, you asked for some support, specifically saying "you don't just get to make that crap up." So I gave 2 obvious specific examples of Constitutional Rights not enumerated in the Constitution. As far as the Commerce Clause that is not a Right but a Power, but again it supports the same point...just because the Constitution does not enumerate a power to the Gov does not mean the Gov does not have that Constitutional Power. The Commerce Clause is a good example, maybe the most obvious is Marbury v. Madison where the SCOTUS gives itself the right to Judicial Review.

dredmorbius 13y ago
There's advocating a right out of thin air, and there's constructing a right out of existing doctrine: the Constitution, statute, court cases, "gloss" (prior court interpretation of all of the above). See: legal construction: http://legal-dictionary.thefreedictionary.com/Construction http://legal-dictionary.thefreedictionary.com/Construction Gloss is somewhat more ambiguously defined: http://legal-dictionary.thefreedictionary.com/gloss http://legal-dictionary.thefreedictionary.com/gloss And I absolutely agree with you on Marbury v. Madison. That established the precedent of the Supreme Court to exercise judicial review and rule on constitutionality, which wasn't itself an enumerated power of the court: https://en.wikipedia.org/wiki/Marbury_v._Madison https://en.wikipedia.org/wiki/Marbury_v._Madison However, neither Construction nor Marbury give the court sui generis powers -- at least not usually, nor without a great deal of discomfit. I seem to recall a case (Learned Hand? Oliver Wendell Holmes?) where some pretty broad leaps were made.
- genericuser 13y ago
  My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution such as the examples will_brown listed. Those examples have court cases now establishing that 'Yes indeed these are constitutional rights', however the cases did not make them constitutional rights. You seem to be saying that the court cases are required for any right to exist if I follow what you are saying. And that I believe is false. My apologies if I merely did not follow what you were saying. Edit: I believe if I am misunderstanding you others might as well so clarification might not be a bad thing.
  - dredmorbius 13y ago
    My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution I've noted that in an amended edit to one of my ancestor posts above. I'd still maintain that well-formed rights should be based on precedent and/or law and/or intent. Though situations such as education (equal protection, commerce, copyright?), abortion / right to life (two opposed "rights"), etc., push the boundaries more than a bit.
avaguethrowaway 13y ago
Can I contact you about another youth in a similarly bad situation? Your profile doesn't have your email ID...

dredmorbius 13y ago

There's advocating a right out of thin air, and there's constructing a right out of existing doctrine: the Constitution, statute, court cases, "gloss" (prior court interpretation of all of the above). See: legal construction: http://legal-dictionary.thefreedictionary.com/Construction http://legal-dictionary.thefreedictionary.com/Construction Gloss is somewhat more ambiguously defined: http://legal-dictionary.thefreedictionary.com/gloss http://legal-dictionary.thefreedictionary.com/gloss And I absolutely agree with you on Marbury v. Madison. That established the precedent of the Supreme Court to exercise judicial review and rule on constitutionality, which wasn't itself an enumerated power of the court: https://en.wikipedia.org/wiki/Marbury_v._Madison https://en.wikipedia.org/wiki/Marbury_v._Madison However, neither Construction nor Marbury give the court sui generis powers -- at least not usually, nor without a great deal of discomfit. I seem to recall a case (Learned Hand? Oliver Wendell Holmes?) where some pretty broad leaps were made.

genericuser 13y ago
My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution such as the examples will_brown listed. Those examples have court cases now establishing that 'Yes indeed these are constitutional rights', however the cases did not make them constitutional rights. You seem to be saying that the court cases are required for any right to exist if I follow what you are saying. And that I believe is false. My apologies if I merely did not follow what you were saying. Edit: I believe if I am misunderstanding you others might as well so clarification might not be a bad thing.
- dredmorbius 13y ago
  My understanding as not a lawyer, is that there exist constitutional rights that are not listed in the constitution I've noted that in an amended edit to one of my ancestor posts above. I'd still maintain that well-formed rights should be based on precedent and/or law and/or intent. Though situations such as education (equal protection, commerce, copyright?), abortion / right to life (two opposed "rights"), etc., push the boundaries more than a bit.

avaguethrowaway 13y ago

Can I contact you about another youth in a similarly bad situation? Your profile doesn't have your email ID...