The right to life and constitutional law.

[Kidlicious]

I ran across this at www.usconstitution.net

The Bill of Rights, which is recognized as the first ten amendments to the Constitution, lists many rights of individuals. It is important to note here why the a bill of rights was not originally included in the Constitution. Most of the Framers felt that any power to infringe upon individual rights would not be legal under the Constitution, since the power to infringe was not granted to the United States by the Constitution. But the arguments of the people who supported a bill of rights eventually prevailed, and guarantees were added to the Constitution within a few years. It is also important to note that the Bill of Rights does not grant people the listed rights. The Bill of Rights simply guarantees that the government will not infringe upon those rights. It is assumed that the rights pre-exist. It is an important distinction.

[Kidlicious]

Originally posted by lord of the mark
Does anyone know the history of why this amendment was not passed? Federalist objections?

What is interesting to note is that when the Constitutional Convention finished its work, it did not find it necessary to include a bill of rights in the final version. Several members, notably George Mason, were very disappointed by this decision and refused to sign the document over the issue. The argument was that the Constitution did not give the new federal government the ability to restrict inherent rights, so no list of those rights was necessary. Others worried that if the rights were listed, they would invariably forget some and the list would ever be incomplete. Finally, the argument was that the states each had their own constitutions, too, and that rights were best protected at a state level.

[Kidlicious]

Hamilton, Federalist 85

I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

[Imran Siddiqui]

Now if Jefferson had not so insisted, and it had been left out, what would a textualist today say? Hed have to say, to be consistent with what you have said, that since there is no Bill of Rights, and since some state constitutions had them, ergo there were no such protections in the federal constitution. Hed have to ignore specific statements from Madison and other framers that those protections were implicit.

Exactly. And I agree. This is why those who pushed for a Bill of Rights were smart. As Kid's links show some of the framers said the Congress had no power to infringe, therefore there is no need. However, it was obvious that a few years after the passage of the Constitution there was a need, because the government found a way to infringe.

And I find interesting his second quoted passage. Some framers were worried they would forget some rights... is the right to life something that you think they'd simply forget? If they were so concerned about leaving some thing out of the Bill of Rights, why leave off such an important right?

[lord of the mark]

Originally posted by Imran Siddiqui

Now if Jefferson had not so insisted, and it had been left out, what would a textualist today say? Hed have to say, to be consistent with what you have said, that since there is no Bill of Rights, and since some state constitutions had them, ergo there were no such protections in the federal constitution. Hed have to ignore specific statements from Madison and other framers that those protections were implicit.

Exactly. And I agree. This is why those who pushed for a Bill of Rights were smart. As Kid's links show some of the framers said the Congress had no power to infringe, therefore there is no need. However, it was obvious that a few years after the passage of the Constitution there was a need, because the government found a way to infringe.

And I find interesting his second quoted passage. Some framers were worried they would forget some rights... is the right to life something that you think they'd simply forget? If they were so concerned about leaving some thing out of the Bill of Rights, why leave off such an important right?

Well as you see from my quote, Madison (once convinced of the necessity for putting a BoR in) was actually in favor of putting the right to life (and liberty) in. I dont know the legislative history of why it was taken out.

[lord of the mark]

Originally posted by Imran Siddiqui

Now if Jefferson had not so insisted, and it had been left out, what would a textualist today say? Hed have to say, to be consistent with what you have said, that since there is no Bill of Rights, and since some state constitutions had them, ergo there were no such protections in the federal constitution. Hed have to ignore specific statements from Madison and other framers that those protections were implicit.

Exactly. And I agree. This is why those who pushed for a Bill of Rights were smart. As Kid's links show some of the framers said the Congress had no power to infringe, therefore there is no need. However, it was obvious that a few years after the passage of the Constitution there was a need, because the government found a way to infringe.

And I find interesting his second quoted passage. Some framers were worried they would forget some rights... is the right to life something that you think they'd simply forget? If they were so concerned about leaving some thing out of the Bill of Rights, why leave off such an important right?

Lets not forget that the Bill of Rights was written to restrain the FEDERAL govt. The framers certainly expected that govt prosecute private citizens who murdered each other. That was the purpose of govt after all, the reason men left a state of nature. But they didnt expect the FEDERAL govt to do so - that was the job of the states. So its natural that they would leave the affirmative view out of the FEDERAL Bill of Rights.

[Imran Siddiqui]

I don't understand why you quote the same statement and respond to it in two seperate posts, but..

As you said, Madison wanted a right to life and liberty in there, and it didn't end up there. Obviously that meant the convention wasn't sold on them.

And of course the Bill of Rights was written to restrain the federal government. That's my whole point! There is no right to life except for that given to you by your state. The Declaration of Independance does not have legal weight. State Constitutions and laws do.

[lord of the mark]

Originally posted by Imran Siddiqui
I don't understand why you quote the same statement and respond to it in two seperate posts, but..

As you said, Madison wanted a right to life and liberty in there, and it didn't end up there. Obviously that meant the convention wasn't sold on them.

And of course the Bill of Rights was written to restrain the federal government. That's my whole point! There is no right to life except for that given to you by your state. The Declaration of Independance does not have legal weight. State Constitutions and laws do.

The 14th amendment binds states, and thats whats at issue.

[lord of the mark]

Man ... must necessarily be subject to the laws of his Creator.. This will of his Maker is called the law of nature.... This law of nature...is of course superior to any other.... No human laws are of any validity, if contrary to this: and such of them as are valid derive all their force...from this original." - Sir William Blackstone

[Imran Siddiqui]

[q=Lord of the Mark]The 14th amendment binds states, and thats whats at issue.[/Quote]

Yep. Binds states with the Bill of Rights. Bill of Rights has no mention to these rights, because, in your argument, it was left to the states. The 14th is NOT a two way street. State rights don't get transfered to the federal government.

[lord of the mark]

BTW, throughout the above, you seem to use "due process" as referring to procedure alone. Even in recent decisions SCOTUS has recognized substantive due process.

[lord of the mark]

Originally posted by Imran Siddiqui
[q=Lord of the Mark]The 14th amendment binds states, and thats whats at issue.

Yep. Binds states with the Bill of Rights. Bill of Rights has no mention to these rights, because, in your argument, it was left to the states. The 14th is NOT a two way street. State rights don't get transfered to the federal government. [/QUOTE]


It binds them to the full of bill rights, including the natural rights, that are implicit in the purpose of govt, but which were omitted from the BoR as they were not relevant to the responsibilities of the Fed Govt.

[Imran Siddiqui]

Originally posted by lord of the mark
BTW, throughout the above, you seem to use "due process" as referring to procedure alone. Even in recent decisions SCOTUS has recognized substantive due process.

Yep.. and substantive due process are negative rights people have against government (ie, government can't ban abortion or ban sodomy).

It binds them to the full of bill rights, including the natural rights, that are implicit in the purpose of govt, but which were omitted from the BoR as they were not relevant to the responsibilities of the Fed Govt.

I consider that to be quite a strech, especially the "implicit in the purpose of government", even though the 1st Congress rejected Madison's explicit right to life. As for being relevant to the responsibilities of the federal government, as Kid's quotes show, people thought a right to free speech was not relevant to the federal government's responsibility.

[lord of the mark]

Originally posted by Imran Siddiqui


Yep.. and substantive due process are negative rights people have against government (ie, government can't ban abortion or ban sodomy).

yes, but where does a substantive due process right come from? IIUC the reasoning often used DOES refer back to natural rights, the DoI, etc. This would seem to me to imply also an affirmative obligation on the part of govt as well. This doesnt come up in case law as no state refrains from giving de minimus protections to life, liberty, and property as against violations by private citizens. And the case law where it did come up (the case you cited above) was such a stretch of state obligations - it would have presented not merely a requirement to ban murder, but would have held the state responsible for incompetence by a social service agency for failing to PREVENT murder - that it was easy for the formalist chief justice to get a majority. And even then there were three dissents.

AFAIK the justices who dont much like natural rights, dont much like substantive due process either. There hostile to the whole string of cases starting with Griswold v Connecticut, and only stare decisis, and the political reality of what going all the way back on those would mean, holds them back.

[lord of the mark]

"We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. "

Mr. Justice Douglas, Griswold v Conn.