A Bible question!!

[Elok]

Tree squirrels (actually, that was a typo for "tree shrews," but whatever) have an organized society wherein a portion of the larger society sets a direction for the whole group to go? I don't imagine so, but very well. How do you define government, and at what point do you think human beings existed without it? Were hunter-gatherer bands (our earliest social body) ungoverned?

[Aeson]

I'm not terribly familiar with tree squirrels, but IIRC they give birth to live young in a nest, and the mother would be "governing" things for the babies for some time. She would be regulating meals and providing what protection she can for the group, which may include physical direction as to positioning. (I don't know if the male is involved. It could even be one of those species where the male tends the nest.)

I wouldn't call it a government though.

I have no real preference as to where "instinct" becomes "social mores" becomes "government" in reality. Generally if someone says "government" I would assume they are talking about a legal entity with a code of laws. I don't know when the first code of laws would have been set down, and don't necessarily think they need to have been written to qualify either. So the answer as to when is a very definite, "I don't know" on top of the qualification of "define government first".

[grumbler]

All of those things are, in turn, irrelevant to the present argument. The Constitution does establish that there will be a judicial branch and a military, creates a government which presumptively would need a capital of some sort, and allows for the regulation of interstate commerce, which at least arguably allows for control over who gets one hunk of bandwidth or another, etc. All of those are, I suppose, open for debate, but my point with that first sentence was merely to establish that you can't argue for a constitutional right to abortion (or a right to privacy including abortion, same bloody thing) directly from the Constitution.

Good - and when you find someone who argues for a "constitutional right" (whatever that is) to privacy directly from the Constitution, you'll be ready for them. I'll have your back, because it is an absurd contention.

Uh, you're not the Founding Fathers. The Ninth Amendment is a purely negative statement (A doesn't mean not-B) which has been taken to construe a positive power held by the courts without apparent reason (A, therefore feel free to speculate on B).

Is this an argument? It makes no sense to me. I know of no "positive power" (whatever that is) that is "held by courts."

No, the Ninth itself says "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It says nothing about the origin of said rights. And the idea of natural rights predating government is a romantic Enlightenment fantasy. It sounds great, but has no grounding in reality. For a right to even exist in the absence of government is nonsensical--like a soap-bubble in the absence of soap. You don't want my religion in government? Neither do I--nor do I want yours.

The argument that rights do not exist outside government is not relevant to our discussion. The US is based on the proposition that people have inalienable rights, and "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government," as the Declaration of Independence states. The US declared its independence to abolish a government they felt was destructive to the end of securing the rights of "the people." You can call this a fantasy, but it is the justifying principle for the existence of the US nonetheless. That's an awfully real "fantasy."

You are dreadful at analogies, BTW.

Insofar as I have a right to privacy, it is the aggregate of details of the Constitution.

Untrue. Rights (other than civil rights) are independent of any constitution, and there was no constitution when the DoI was written.

It seems, more and more, that this whole argument is based on your having some kind of vaguely Platonic understanding of rights, like they're always sitting there invisible until a court recognizes and elaborates them like an oracle.

Classic strawman. Why don't you debate my arguments,

That's how they liked to think back in 1790, but as a practical matter, rights do not exist until asserted by a government.

Manifestly untrue, since the DoI was issued, and American Revolution was started, before there was any government to assert the rights for which those actions were taken. The government of the US was established after the rights were defended by the people.

And when the interpretation is somehow relevant to their constitutionally appointed powers, I'm fine with that. When they not only cross out a law without authority, but write a detailed new equivalent, that's adding insult to injury.

I am not sure what you are arguing here, but if it refers to judicial review, that's the way it was always done, and was famously (and far, far more egregiously) done as recently as last year, when in the Citizen's United case, the USSC not only struck down a Federal law on campaign finance, but overturned two major precedents, and invented a constitutionally-protected corporate "right to free speech" that was completely unprecedented. You don't hear me moaning about that being beyond the court's power, though (even though I think it a dreadful decision), because I know it isn't. That ruling, which was far more sweeping than RvW, was within the purview of the court.

Yes, I know that. But I'm saying that, if the courts can strike down any law that offends their ideas of "privacy," they have a de facto veto over any law, or at least any law that can be construed to deal with individual rights (can't think of one that couldn't be, offhand).

That is the role of courts. Judicial review. Maybe you should do a bit more reading before you complain about courts doing what courts do.

Because? It's a clumsy veto, requiring a case to be appealed all the way up to them, and then for five or more of them to agree. And of course it's not called a veto. But if they aren't limited to matters which are mentioned in some way by the Constitution, that's the only real difference between what they do and an actual veto.

Rights not enumerated in the Constitution are specifically mentioned in the Constitution. See the Ninth Amendment, which you quoted above without apparently reading it.

The "first" I referred to was not the Federal government, but the system of checks and balances. If the courts can smack down any law whatever, on the flimsiest of pretexts, that messes up the balance.

Well, if someone wants to argue that the "courts can smack down any law whatever, on the flimsiest of pretexts," you'll sure be ready for them! And I will have your back. That's an absurd contention, all right.

The second was plenty effective without it, and if it weren't, we have amendments. I admit that it'd be nice to have a quicker way to do things, but if rights are only delegated by the people, wouldn't it be nice if which rights they had were not decided by the branch of government they have the least control over? I know that the Ninth was a vital compromise (and have alluded to that in this thread), though what the hell a modern man or woman is supposed to make of it is beyond me. Finally, no, the First is the most important check. The Ninth is just a fuzzy one-line disclaimer.

This is argument by assertion. I know exactly what the Ninth Amendment refers to, and so do the courts and constitutional scholars. That you don't understand its meaning isn't really an argument about Roe v Wade or any other USSC decision, is it?

[Kidlicious]

If we are talking about rights that is something different than primative social hierarchy. I don't think primative societies had any concept of rights. That's something that came relatively recently.

[Berzerker]

of course rights predate govt, they're based on morality

[Kidlicious]

of course rights predate govt, they're based on morality

No it's just politics.

[giblets]

of course rights predate govt, they're based on morality

Does this apply to all rights or only some of the ones in the constitution? Is it possible that some "natural" rights aren't even in the constitution?

[Elok]

If we are talking about rights that is something different than primative social hierarchy. I don't think primative societies had any concept of rights. That's something that came relatively recently.

I didn't say that primitive societies had rights, I said it's impossible to have rights without a government. Which it is, at least in any meaningful sense.

[Kidlicious]

I didn't say that primitive societies had rights, I said it's impossible to have rights without a government. Which it is, at least in any meaningful sense.

I agree with you. What would you need rights for if there wasn't a government?

[Elok]

The argument that rights do not exist outside government is not relevant to our discussion. The US is based on the proposition that people have inalienable rights, and "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government," as the Declaration of Independence states. The US declared its independence to abolish a government they felt was destructive to the end of securing the rights of "the people." You can call this a fantasy, but it is the justifying principle for the existence of the US nonetheless. That's an awfully real "fantasy."

It was the justifying principle...200+ years ago. If you are arguing, as you just did, that privacy is one of many rights which predate government itself, then the impossibility of rights existing without government is entirely relevant. And that people went to war for an idea, does not make that idea in any sense "real." Don't make me Godwinize this sucker.

Classic strawman. Why don't you debate my arguments,

It wasn't a strawman; that would entail an intentional distortion of your beliefs. Rather, that was my honest, sincere best attempt to figure out WTF you were talking about. Really. It sounds like a lot of muddle to me, and I'm trying to organize it into some kind of coherent framework here. It's hard.

Manifestly untrue, since the DoI was issued, and American Revolution was started, before there was any government to assert the rights for which those actions were taken. The government of the US was established after the rights were defended by the people.

And that war was won by a completely uncoordinated, ungoverned mass, I take it?

I am not sure what you are arguing here, but if it refers to judicial review, that's the way it was always done, and was famously (and far, far more egregiously) done as recently as last year, when in the Citizen's United case, the USSC not only struck down a Federal law on campaign finance, but overturned two major precedents, and invented a constitutionally-protected corporate "right to free speech" that was completely unprecedented. You don't hear me moaning about that being beyond the court's power, though (even though I think it a dreadful decision), because I know it isn't. That ruling, which was far more sweeping than RvW, was within the purview of the court.

Judicial review is entirely appropriate when it makes at least some vague attempt to refer to the Constitution. That ruling was really quite tenuous, though they made some vague attempt to tie it into the First Amendment. Still pretty lousy. Griswold was rubbish too, though I agree birth control should not be banned. If you want a right to birth control, amend it in, none of this sloppiness. That's my take, anyway.

I snipped the rest, which was basically just variations on you saying "nuh-uh" without further detail. This argument appears increasingly fruitless. Still, you have my sincere thanks for getting me to think about the Constitution. Even if I have the hardest time even figuring out what you're trying to say, the good thing about arguments is that they make you stretch your mind and try to understand what the other guy's saying.

[Elok]

I agree with you. What would you need rights for if there wasn't a government?

Oh, sorry. I thought you were disagreeing with me.

[Elok]

of course rights predate govt, they're based on morality

In what sense do they exist in the absence of a government? If there's no law around, you can say you have a right to life and liberty, but do you really? If I try to kill or enslave you, who will guarantee or protect your rights? Rights only exist where there is power to enforce them.

Now, if you're saying it's morally wrong to kill you, I agree, but morality and rights are distinct concepts (although with substantial overlap).

[Berzerker]

rights are valid claims of moral authority

if rights dont exist without the power to enforce them, then Hitler, Stalin and Mao didn't violate anyone's rights. But they did, on a massive scale...

[Kidlicious]

They didn't violate anyone's rights because they had absolute authority.

[Berzerker]

absolute authority != moral authority

rights = moral authority

moral authority = self defense

self defense = right

If Moses wrote the Torah, why did he die before it was written? Somebody pointed that out in Perfie's thread at cfc and its a good question.