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Very Hot Topic (More than 25 Replies) Constitution Day, Part II - the Bill of (non-absolute) rights. (Read 625 times)
GEMorton
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #10 - Sep 20th, 2018 at 11:48am
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SkyChief wrote on Sep 19th, 2018 at 6:09pm:
I agree with this, but we must accept the fact that state governments routinely violate the second amendment whenever a new gun-control measure is passed.


You have to keep in mind that the Bill of Rights was written to restrict only the federal government, not the States. In 1833 the Supreme Court ruled explicitly that the Bill of Rights did not restrict the actions of state governments (Barron v. Baltimore).

Then the 14th Amendment was adopted, barring the States from denying any person due process of law. Subsequently, the Court held that various provisions of the Bill of Rights were so "essential to the concept of ordered liberty" that violations amounted to denial of due process, thus making those provisions applicable to the states via the 14th.

Not all provisions of the Bill of Rights have been ruled applicable to the States. Not until the McDonald decision in 2010 was the 2nd Amendment ruled applicable to the States (via the 14th).

Most states, however, had versions of the 2nd Amendment in their own state constitutions, usually less vague and more explicit than the federal version.
  
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SkyChief
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #11 - Sep 20th, 2018 at 11:54am
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GEMorton wrote on Sep 20th, 2018 at 11:48am:
You have to keep in mind that the Bill of Rights was written to restrict only the federal government, not the States.

Could the states ban free speech if (their respective) voters approved?

Could they ban a certain religion if voters approved?
  
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GEMorton
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #12 - Sep 20th, 2018 at 12:08pm
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Snarky Sack wrote on Sep 17th, 2018 at 1:12pm:
So if freedom of speech is not an absolute right, what do we need it to be in the constitution for?


Freedom of speech has never been considered an "absolute" right. It has never embraced libel and slander, divulging state secrets, or, for most of its history, "obscenity."

There is no "reasonableness" test for laws restricting speech. A law restricting speech must fall within one of the classic exceptions or satisfy the "clear and present danger" test (e.g, inciting to riot).

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The founders used the word reasonable in the third amendment, so why not the first if that was their intent?


The 3rd Amendment, which deals with the quartering of troops, does not contain the word, "reasonable." (The Supreme Court, BTW, has never heard a case involving the 3rd Amendment).
  
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GEMorton
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #13 - Sep 20th, 2018 at 12:10pm
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SkyChief wrote on Sep 20th, 2018 at 11:54am:
Could the states ban free speech if (their respective) voters approved?

Could they ban a certain religion if voters approved?


No, to both. Both of those provisions have been held to be incorporated by the 14th Amendment's due process clause.
  
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Snarky Sack
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #14 - Sep 20th, 2018 at 2:35pm
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GEMorton wrote on Sep 20th, 2018 at 12:08pm:
Freedom of speech has never been considered an "absolute" right. It has never embraced libel and slander, divulging state secrets, or, for most of its history, "obscenity."

There is no "reasonableness" test for laws restricting speech. A law restricting speech must fall within one of the classic exceptions or satisfy the "clear and present danger" test (e.g, inciting to riot).


The 3rd Amendment, which deals with the quartering of troops, does not contain the word, "reasonable." (The Supreme Court, BTW, has never heard a case involving the 3rd Amendment).


True, it was the IV amendment which bans "unreasonable searches and seizures."  Thus leaving it for the courts to decide who has a right to be securer on a case-by-case basis.

The 3rd amendment has needed little interpretation because the government simply honored its plain language.  It could have done the same for the nine others, but that wasn't convenient.

 
  

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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #15 - Sep 20th, 2018 at 8:42pm
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Snarky Sack wrote on Sep 20th, 2018 at 2:35pm:
True, it was the IV amendment which bans "unreasonable searches and seizures."  Thus leaving it for the courts to decide who has a right to be securer on a case-by-case basis.


Not case-by-case. The "reasonable" is defined in the next clause, which requires "probable cause" for the search. Actually, the Court has been quite strict on 4th Amendment issues. Just this summer it ruled that police must obtain a warrant (based on probable cause) to obtain cell phone location data from service providers.
  
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #16 - Sep 20th, 2018 at 8:56pm
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GEMorton wrote on Sep 20th, 2018 at 8:42pm:
...Actually, the Court has been quite strict on 4th Amendment issues.

Except when the PATRIOT Act was signed into law.

It blatantly violated 4th Amendment protection against unwarranted search and seizures.

SCOTUS pretended not to notice.

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."  - Benjamin Franklin
  
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GEMorton
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #17 - Sep 21st, 2018 at 12:44pm
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SkyChief wrote on Sep 20th, 2018 at 8:56pm:
Except when the PATRIOT Act was signed into law.

It blatantly violated 4th Amendment protection against unwarranted search and seizures.


Yes, it did. But the most onerous provisions have been ruled unconsitutional by a federal appeals court.

  
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SkyChief
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #18 - Sep 21st, 2018 at 3:13pm
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GEMorton wrote on Sep 21st, 2018 at 12:44pm:
Yes, it did. But the most onerous provisions have been ruled unconsitutional by a federal appeals court.


True, so they changed the wording and re-packaged them.

The violations are still policy - they now have a pretty bow on top.
  
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Re: Constitution Day, Part II - the Bill of (non-absolute) rights.
Reply #19 - Sep 25th, 2018 at 9:26am
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Snarky Sack wrote on Sep 20th, 2018 at 2:35pm:
True, it was the IV amendment which bans "unreasonable searches and seizures."  Thus leaving it for the courts to decide who has a right to be securer on a case-by-case basis.


Which is another argument against including a bill of rights in the Constitution.

Since no power is granted to search or seize without probable cause and warrants, there was no need to create a prohibition against it.

Federalist No. 84: Hamilton
           "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 which are 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 liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

  
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