you people are gay

sssssssss.......Ka-boom.......

"Dude, that is some freaky weird long-winded ****. It ain't what they
taught me in 8th soshal studys class. At least from what I don't
remember." -- anonymous

"When the transient circumstances and fugitive performances which
attended this crisis shall have disappeared, that work will merit the
notice of posterity, because in it are candidly and ably discussed the
principles of freedom and the topics of government—which will be
always interesting to mankind so long as they shall be connected in
civil society." -- George Washington, to Alexander Hamilton regarding
The Federalist Papers

"But a nation of philosophers is as little to be expected as the
philosophical race of kings wished for by Plato." -- Madison, #49

"If a nation expects to be ignorant and free in a state of
civilization, it expects what never was and never will be." --Thomas
Jefferson to Charles Yancey, 1816. ME 14:384



Tim Mullin wrote:
"My point is that to assert that the United States of America has been
any readily definable thing for over 200 years is complete and utter
bull****. What the United States is is in constant flux."

That is, he's saying the USA can be "whatever" the people want it to
be. Stunningly, there is simultaneously no recognition of the
necessary conditions of "whatever." Liberty is an *absolute base
requirement* for "whatever," otherwise "whatever" can be prohibited
from occuring by despotism. "Whatever" isn't singularly what a
despotic majority says it is. There is only *one thing* the US cannot
be if it maintains its core foundation: a nation without liberty.
Indeed, it can be "whatever," other than that. Destruction of liberty
puts the nation in ruin, by definition.


Tim Mullin wrote:

g-spot wrote in

Dude, get a grip. First you have to show me where, in the documents that
codify the govenment we now have this "prime directive" is stated. You
haven't.

You cannot possibly be serious. If you review the historical facts
and the documents, you'll find the matter is indisputable. As
constitutional scholar Leonard W.Levy states (more quotations
appended): "Liberty and equality constituted the master principles of
the founding, which the Framers perpetuated as constitutional ideals,
even if slyly." It is unfortunate that the Framers didn't afford you
the bumpersticker version which I and Professor Levy give, but it
doesn't change the facts.

Lincoln notes in the Gettysburg address that the nation was "conceived
in liberty" and would have yet another "new birth of freedom": "Four
score and seven years ago our fathers brought forth on this continent,
a new nation, conceived in Liberty, and dedicated to the proposition
that all men are created equal... [W]e here highly resolve that these
dead shall not have died in vain -- that this nation, under God, shall
have a new birth of freedom -- and that government of the people, by
the people, for the people, shall not perish from the earth.

Government is instituted among the people for the purpose of securing
the blessings of liberty. You can look it up. Nothing in this says
there has not been repeated trangressions of liberty by local, state,
and federal demagogues. A litany of practiced errors, even by the
authors, does not change the essence/ideal; the structural republican
form of government was designed for the specific purpose of insuring
those ideals. The ideal was stressed as best possible such that it
could be approximated in practice and withstand attacks by those who
wish to press their own purposes upon the citizenry.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
From everyone's favorite, the ALCU:
http://archive.aclu.org/library/pbp9.html
"From these experiences came a uniquely American view of power and
liberty as natural enemies. The nation's founders believed that
containing the government's power and protecting liberty was their
most important task, and declared a new purpose for government: the
protection of individual rights.

The protection of rights was not the government's only purpose. It was
still expected to protect the community against foreign and domestic
threats [lol, which is exactly what other than protecting the liberty
of citizens from external powers?], to ensure economic growth [even
certain commercial and economic lawmaking can be considered as an
aspect of liberty], and to conduct foreign affairs. It was not,
however, the government's job to tell people how to live their lives,
what religion to believe in, or what to write about in a pamphlet or
newspaper. In this sense, the idea of individual rights is the oldest
and most traditional of American values.

Democracy and liberty are often thought to be the same thing, but they
are not. Democracy means that people ought to be able to vote for
public officials in fair elections, and make most political decisions
by majority rule. Liberty, on the other hand, means that even in a
democracy, individuals have rights that no majority should be able to
take away."

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Hamilton, in resisting the addition of a Bill of Rights, stated in The
Federalist #84 that "The truth is, after all the declamations we have
heard, that the Constitution is itself, in every rational sense, and
to every useful purpose, A BILL OF RIGHTS." But noted is the marked
lack of actual called out rights (liberties) in the Constitution.
Hamilton (and Madison for awhile) argued that powers not granted to
the government was the implicit inhibition for the government to not
impose upon those individual natural rights (liberties). (It was also
in earlier argumentation considered instead to be left to the states)

The stark lack of explicit rights (liberties) enumeration, along with
the claim of ungranted powers (preventing government imposition), and
Hamilton's comment in the 84th, essentially tells us there is no
specific bound on the liberties of the people. The bounds intended by
the framers were only with regard to inhibiting the liberties of one
from trampling upon the life/liberties/property of another. As
Jefferson wrote: "...a wise and frugal government, which shall
restrain men from injuring one another, which shall leave them
otherwise free to regulate their own pursuits of industry and
improvement, and shall not take from the mouth of labor the bread it
has earned. This is the sum of good government." Government shall
restrain injury to one another, but that is the end of its powers.

The 84th had another interesting comment from Hamilton: "Here, in
strictness, the people surrender nothing; and as they retain every
thing they have no need of particular reservations. 'WE, THE PEOPLE
of the United States, to secure the blessings of liberty to ourselves
and our posterity, do ORDAIN and ESTABLISH this Constitution for the
United States of America.'" Hamilton claims *nothing [liberties] is
surrendered and all is retained*. Interesting in Hamilton's
construction here is the singular intention of "WE, THE PEOPLE" to do
nothing but "secure the blessings of liberty." Hamilton makes it
clear how important liberty is as a driving force for which government
is instituted among the people. As Jefferson wrote in the
Declaration:

"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of
Happiness.--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, laying its foundation on such
principles and organizing its powers in such form, as to them shall
seem most likely to effect their Safety and Happiness."

The Federalist Papers were basically a series of arguments to justify
a stronger Union via The Constitution (and thus also an articulation
of differences of opinion) and held a baseline theme of how the
methodology squared with the "principles of liberty."
Hamilton states in The Federalist #1 "An enlightened zeal for the
energy and efficiency of government will be stigmatized as the
offspring of a temper fond of despotic power and hostile to the
principles of liberty. An over-scrupulous jealousy of danger to the
rights of the people, which is more commonly the fault of the head
than of the heart, will be represented as mere pretense and artifice,
the stale bait for popularity at the expense of the public good. It
will be forgotten, on the one hand, that jealousy is the usual
concomitant of love, and that the noble enthusiasm of liberty is apt
to be infected with a spirit of narrow and illiberal distrust. On the
other hand, it will be equally forgotten that the vigor of government
is essential to the security of liberty; that, in the contemplation of
a sound and well-informed judgment, their interest can never be
separated; and that a dangerous ambition more often lurks behind the
specious mask of zeal for the rights of the people than under the
forbidden appearance of zeal for the firmness and efficiency of
government. History will teach us that the former has been found a
much more certain road to the introduction of despotism than the
latter, and that of those men who have overturned the liberties of
republics, the greatest number have begun their career by paying an
obsequious court to the people; commencing demagogues, and ending
tyrants."

In #1, Hamilton makes clear "the principles of liberty" were of
paramount importance as the federalists had to clear the
anti-federalist objection that the national-federal government would
not endanger that liberty (federalists finally acheived this by
aquiescing to the anti-federalist demand of a Bill of Rights).
Hamilton makes it clear that to secure liberty, a government is
essential: "...the vigor of government is essential to the security of
liberty..."

Hamilton adds "I am convinced that this is the safest course for your
liberty, your dignity, and your happiness," and then with the emphasis
of capitalization he, in near conclusion of #1, writes "... and
lastly, THE ADDITIONAL SECURITY WHICH ITS ADOPTION WILL AFFORD TO THE
PRESERVATION OF THAT SPECIES OF GOVERNMENT, TO LIBERTY, AND TO
PROPERTY." The nation was *conceived in liberty*. As scholar Leonard
W. Levy points out, the Lockean concepts of liberty and property are
"inextricably related." "Locke himself had not used the word to
denote merely a right to things; he meant a right to rights. In his
Second Treatise on Government, he remarked that people 'united for the
general preservation of their lives, liberties, and estates, which I
call by the general name--property.' And, he added, 'by property I
must be understood here as in other places to mean that property which
men have in their persons as well as goods.' At least four times in
his Second Treatise, Locke used the word property to mean all that
belongs to a person, especially the rights he wished to preserve.
Americans of the founding generation understood property in this
general Lockean sense, which we have lost." [Levy, p252]

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Madison #37:
"On comparing, however, these valuable ingredients with the vital
principles of liberty, we must perceive at once the difficulty of
mingling them together in their due proportions. The genius of
republican liberty seems to demand on one side, not only that all
power should be derived from the people, but that those intrusted with
it should be kept in independence on the people, by a short duration
of their appointments; and that even during this short period the
trust should be placed not in a few, but a number of hands."

No claim to perfection, Madison #38:
It is a matter both of wonder and regret, that those who raise so many
objections against the new Constitution should never call to mind the
defects of that which is to be exchanged for it. It is not necessary
that the former should be perfect; it is sufficient that the latter is
more imperfect. No man would refuse to give brass for silver or gold,
because the latter had some alloy in it. No man would refuse to quit a
shattered and tottering habitation for a firm and commodious building,
because the latter had not a porch to it, or because some of the rooms
might be a little larger or smaller, or the ceilings a little higher
or lower than his fancy would have planned them..... Is a bill of
rights essential to liberty? The Confederation has no bill of rights."


Madison, in #39, states that the Constitution with its republican form
of government is intended to conform to the "fundamental principles of
the Revolution," which is to secure "unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness."

"It is evident that no other form [but republican] would be
reconcilable with the genius of the people of America; with the
fundamental principles of the Revolution; or with that honorable
determination which animates every votary of freedom, to rest all our
political experiments on the capacity of mankind for self-government."

One of Madison's arguments against a Bill of Rights was that the
inclusion of specific enumerated rights (liberties) carried the
implication that omission of any rights (liberties) was to say that
these were not reserved rights, and thus did not exist and could be
trampled upon. Madison rightly claimed this was the strongest
argument against a Bill of Rights, with its specific enumerations.
But the Federalists were in an untenable position; a few rights
(liberties) were called out in the Constitution, therefore the logic
was fatally inconsistant. Ultimately Madison knew he had to cave in
to a Bill of Rights due to the illogic; he switched positions and
pulled off the political masterstroke of the ages and *beat the
anti-federalists with their own stick*.

To cover the logic of omission in his previous argument against
specific enumeration Madision improvised with the 9th: "The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." Thus
it is as Hamilton noted in the 84th, nothing is surrendered to
government and all is retained by the people. The people retain all
liberties, except the liberty to impose upon the life/liberty/property
of other citizens.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
You read a lot. You cut and paste a lot. You understand little
beyond what you want to see.

You are not capable of judging. Sure I've pasted without explaining
things point-by-point. What makes you think you are free of the
burden of making an effort for yourself and I'm your unpaid tutor?

The Declartion of Independence is not the law. ****, there was a whole
failed govenment between the Declaration and the Constitution we now have.

Good grief. You could, for example, *review The Federalist Papers*.
The entire crux and structure of the republican form was explicitly to
avoid despotism, including tyranny of the majority. That is, to
insure the protection of liberty. From Madison in #48: "An ELECTIVE
DESPOTISM was not the government we fought for; but one which should
not only be founded on free principles, but in which the powers of
government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without
being effectually checked and restrained by the others. For this
reason, that convention which passed the ordinance of government, laid
its foundation on this basis, that the legislative, executive, and
judiciary departments should be separate and distinct, so that no
person should exercise the powers of more than one of them at the same
time." I could go on and on (and I do!). Better yet, you could do
your own work and convince yourself.

They (The Federalist Papers) described the *intent of governance*
(securing the blessings of liberty), and given the reason they were
penned in the first place, outlined the failures of the Articles of
Confederation in securing them, and why certain structural changes
needed to be ratified to secure them (instituting a republican form of
governance). The purpose of securing the blessings of liberty between
the Declaration and the Bill of Rights (a time inclusive of ratifying
the Constitution) _never changed_. What changed is the constitutional
structure designed to insure it. When Madison mentions "the sacred
maxim of free government" in #47, do you believe he is talking about a
government free to do anything? Preposterous! He's talking
short-hand of government instituted for the *sacred maxim of freedom*.

You are so blind you can't tell the difference between the nuts and
bolts *structural content* aspects of a republican government
described by the Constitution, and the reason why the government *came
into existance* in that form in the first place.

In point of fact, constitutional lawyers and judges look to more than
simple statutes to determine constitutionality. In fact, legislation
itself is subjected to this overlay in determining the
constitutionality of the very legislation. They look at history and
things like the Declaration and The Federalist Papers in sifting out
constitutionality. That court decisions are sometimes "difficult to
comprehend" in those terms does not remove the ideal. Granted, there
is not much to the Declaration (but of course the *pivotal point* is
there).

Clinton Rossiter (John L. Senior Professor of American Institutions at
Cornell University) wrote the introduction to my Mentor Book edition
of The Federalist Papers:

The Federalist is the most important work in political
science that has ever been written, or is likely ever to
be written, in the United States. It is, indeed, the one
product of the American mind that is rightly counted
among the classics of political theory.
This work has always commanded widespread respect
as the lirst and still most authoritative commentary on
the Constitution of the United States. It has been
searched minutely by lawyers for its analysis of the pow-
ers of Congress, quoted confidently by hlstorians for its
revelations of the hopes and fears of the framers of the
Constitution, and cited magisterially by the Supreme
Court for its arguments in behalf of judicial review,
executive independence, and national supremacy. It
would not be stretching the truth more than a few inches
to say that The Federalist stands third only to the Dec-
laration of Independence and the Constitution itself
among all the sacred writings of American political his-
tory. It has a quality of legitimacy, of authority and
authenticity, that gives it the high status of a public
document, one to which, as Thomas Jefferson put it,
"appeal is habitually made by all, and rarely declined
or denied by any" as to the "genuine meanking" of the
Constitution.
In recent years respect for The Federalist has blos-
somed into admiration. It is now valued not merely as a
clever defense of a particular charter, but as an exposi-
tion of certain timeless truths about constitutional gov-
ernment...

...The Federalist deserves
lasting credit for the clarity with which it insists that
... federalism is to be cherished
not alone for its contributions to peace within the land
and security without, but for the firm foundation it pro-.
vides for the enjoyment of individual freedom over a
wide expanse of territory.

...
If he does pay such homage, and if be also keeps an
earnest eye out for the nuggets of speculation strewn
all through these pages, the student of The Federalist
will in time amass a respectable treasure of political
wisdom about the problems and possibilities of freedom...

...Whether dis-
coursing on the universal urge of mankind toward weak-
ness and wickedness, demonstrating the existence of the
saving graces of human reason and decency, accounting
for the diverse interests that arise in a progressive so-
ciety, finding a formula for liberty in the very fact of
these clashing interests, setting both static and dynamic
limits to the rule of the majority, or working out the
balance of forces within a complex structure of govern-
ment, The Federalist sends out messages of universal
validity to all students of political man, and especially
to those who wish him well. It is, in particular, the cold-
eyed yet ultimately hopeful view of mankind that lifts
The Federalist into the circle of classics in political
theory. No one can read these pages without being
reminded powerfully of both the light and dark sides
of human nature—of man's capacity for reason and
justice that makes free government possible, of his ca-
pacity for passion and injustice that makes it necessary.
It is, to be sure, a great pity that the authors of The
Federalist had neither time nor inclination to sort out
and restate in orderly, comprehensive fashion their many
brilliant observations about the nature of political man,
or indeed about liberty or society or the purposes and
forms of government. It is a greater pity, a source of
especially keen distress to students of political theory,
that they apparently found it unnecessary to make more
than a handful of explicit observations on private prop-
erty as a right of man, a pillar of ordered society, and a
force in politics...
...
Not every great political theorist has cared much for
free and popular government. Of those who have cared,
not every one has been candid enough to expose its
diseases, or hopeful enough to counsel a broad scheme
of prevention. The Federalist is a famous work in po-
litical science because it does just that, because it mixes
candor and hope, realism and idealism, in a message to
all friends of liberty wherever they ply their honorable
trade. And the message of The Federalist reads: no
happiness without liberty, no liberty without self-
government, no self-government without constitutional-
ism, no constitutionallism without morality--and none of
these great goods without stability and order.


Keenly note what Professor Rossitor states in the last sentence.
Liberty does not guarantee happiness, but as the old engineering
saying goes, "it is a necessary but not sufficient condition." To
pursue happiness, liberty must exist as a conditional base. To
promote this conditional base of liberty, the Framers instituted a
republican form of self-government.

The Constitution and Bill of Rights sure don't contain your prime
directive. They outline what are considered the Natural Rights of people,
then deny those rights to whole groups of people.

Umm, no. Per your style, "show me where, in the documents that codify
the government (the Constitution), where rights are denied to whole
groups of people." The Bill of Rights is so explicitly about liberty
it is inconceivable how one could suggest otherwise. Do you really
need someone to lead you though history, and amendment by amendment
(through the first ten), in explicit demonstration that the so-called
natural rights enumerated were about anything but liberty? The Bill
of Rights *was nothing but a calling out of liberty*, forced by the
anti-federalists until Madison used their own weapon against them.

People(s) denied liberties may consider this: "But when a long train
of abuses and usurpations, pursuing invariably the same Object evinces
a design to reduce them under absolute Despotism, it is their right,
it is their duty, to throw off such Government, and to provide new
Guards for their future security."

"The triumph of individual liberty against government power is one of
history's noblest themes, epitomized by the Bill of Rights." --
Leonard W. Levy, Pulitzer Prize winning constitutional scholar

Look, I agree with much of what you've said. It's a beautiful idea, in
theory. But the founders knew that when they walked out of the
Pennsylvania State House, they had to have something that worked in the
real world, and not just in theory. They had to come up with a social
contract that would work, and be accepted by a majority of the states.

What does that have to do with anything here? In fact, it was
theory--no one had ever formed a government like they did, although
they did have the benefit of reviewing the historical
failures/weaknesses of other democractic structures. Madison's
republicanism included a key rejection of a Montesquieu's form and was
a new conjuring in political theory (Federalist #10).

BTW, may I commend you on your Kunichian Powers of obfuscation.

LOL. Because he's so poor in that power, this would be a cutting
insult if it actually applied here. After all, I hope to be good at
whatever endeavors I undertake. Save it for when it works. If I
obfuscate, you won't know--that's what keen power of obfuscation is.

Can't make an agument to support your point? Put words in my mouth like
"Group Liberty" and "community property" so you can make some other point.
Tom would be so proud of you.

No one is putting words in your mouth. So here we go...

Then back we are to the question of what you could have possibly meant
went you wrote: "...the founders explicitly outlined the reasons for
establishing our government, and what they hoped to achive with it.
Liberty--and--importantly--not 'individual liberty'--was one of
several things mentioned, and none was given greater weight than the
others...."

Never mind the fact for now that *it is* about liberty. In
complaining of misinterpretation, or obfuscation, one can only wonder
what you could have possibly been talking about when you discriminated
between "liberty" and "individual liberty." After all, if it isn't
individual liberty, or "group liberty," then what exactly is it?
Liberty for dogs, cats, horses, and ants?

What is more amusing is an above comment where you've mentioned
precisely the "group liberty" concept I presumed (and now we know):
"...deny those rights to whole groups of people."

Because the enumerated rights are explicit expressions of liberty, and
now you refer to "groups of people," we are in our reading
comprehension spat referring to the group liberty I presumed. For the
"community property" aspect, I was only drawing a parallel, not to
obfuscate, but to clarify. I wasn't claiming you said anything about
it.

Also, in an attempt to clarify (not obfuscate) the meaning of the word
"liberty," since you seemed confused on the concept of it ("accept
restrictions of some freedoms, and assume some responsabilities"), I
gave you a lot of quotes and lengthy links to peruse the topic of
positive/negative liberty ("positive" liberty is more often than not a
weasel word). In not leading you through the information
point-by-point, you claim I simply "paste without understanding."
What a crock. I was trying to help you without making a career of it.
It's not like you're paying me--do your own work. Look it up.

Incidentally, what do you think the restrictions and responsibilities
enumerated in the constitution are? I ask because you present the
same challenge to me: "show me where, in the documents that codify the
govenment..."

****, dude, try your individual liberty is the prime directive at home
and see how well it works. I can't make it work in my family of four,
so how the **** you gonna make it work in a nation of 260 million?

There is an ignorant fallacy of composition if there ever was one. It
is only in your collectivist dreams that a nation of millions is a
"family." Talk about naive. So I ask again: r r skools failin us?

Where in there did I say our nation is a family? Hint: I didn't. By your
reasoning, were I to ask, "If I can't make square wheels work on my bike,
how can I make them work on a car," I would really be saying "My bike is a
car." So to answer your question,"are our schools failing us?" In your
case, judging by your reading comprehension, I must sadly say the answer
appears to be, yes.

So, how about you answer the question I asked. If you can't make it work
for four people, how can you do it for 260 million?

Your family is *not* a nation, thus rules guiding your family, a
micro-unit, have no necessary application to a nation. That is the
fallacy of composition: what works for a family unit cannot casually
be overlayed for a nation. That's the point:
"parallelizing/analogizing" them is specious.

You basically say "it won't work for my family" and "the nation is not
a family" but somehow imply that the same rules (some unenumerated
*restrictions* of liberty) must be imposed upon both these distinctly
different entities. Translation of inhibited liberties from family to
nation is okay for you, but translation of liberties for me is not
okay. The rules change as we go through a single paragraph. (And
note I didn't ever say there should be uninhibited liberties for
children -- instead, that is what *you* implied by calling out what
won't work for families also won't work for nations. I never proposed
the translation/composition, you did.)

I can be more specific. In the home, the husband and wife do have
(individual) liberty as responsible adults. They can dissolve the
contract of marriage at any time. The children are not responsible
adults, they are "irresponsibles" both by law and common sense.
Madmen and criminals are "irresponsibles" too, and they have their
liberty removed after the due process guaranteed by the Bill of Rights
is performed (enumerated rights/liberties, except the 9th, which
includes unenumerated ones).

The connection of nation to family in this context is the
*paternalistic* notion that citizens of a nation cannot be afforded
liberties due to their _irresponsibility_. Like children, they must
have their liberties curtailed by the nanny state. This is the
standard collectivist argument and also that of certain claimed
"moralists." It is *exactly* what you were saying because you are
unable to distinguish between legally responsible citizen adults and
irresponsible children. From whence do you think the common terms of
"paternalistic" and "nanny" come from when we refer to state powers?

In short, it is a silly question. I can only question in turn what
your concept of liberty is. In short, it isn't that easy (Hayek chews
up 580 pages in just one book writing about it)--that's why I provided
you with some reading material on the topic. It is certainly easier
(and that's why we see it far more commonly) to use the negative and
say what it isn't: individual liberty does not extend to imposing upon
the life/liberty/property of others without their uncoerced consent.

The framers original prospect of liberty may be resurfacing (and there
are pivotal court cases in the works now (Barnett is involved, I
think):
http://www.cato.org/research/article...tt-030710.html
Randy Barnett is the Austin B. Fletcher Professor at Boston University
School of Law

"Contrary to what has been reported repeatedly in the press, the Court
in Lawrence did not protect a 'right of privacy.' Rather, it protected
'liberty'...

'Eventually, the Court settled on limiting fundamental rights to those
that could be grounded in our 'history and traditions' or 'implicit in
the concept of ordered liberty.'
The more specifically you define the liberty at issue, however, the
more difficult a burden this is to meet — and the more easily the
rights claim can be ridiculed. 'Liberty' is obviously deeply rooted in
our history and traditions.... Whenever a particular liberty is
specified, therefore, it is always subject to the easy rejoinder:
'Just where in the Constitution does it say that?' even though the
Ninth Amendment specifies that 'The enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others
retained by the people.' ...

In his part of the joint opinion, Justice Kennedy refused to rest
abortion rights on a 'right to privacy,' though this crucial move has
been generally ignored. Instead he rested it on liberty, and
explicitly on the Ninth Amendment:

Neither the Bill of Rights nor the specific practices of States at the
time of the adoption of the Fourteenth Amendment marks the outer
limits of the substantive sphere of liberty which the Fourteenth
Amendment protects. See U.S. Const., Amend. 9.

Resting abortion rights on liberty, as opposed to privacy, was
newsworthy, but I seemed to be among the only one to get the news. To
this day, everyone still talks of the 'right of privacy,' not the
'right of liberty.' Until Lawrence, the question for me was whether
this right to liberty would ever be seen again, since it has not made
another prominent appearance until now. But what an appearance!...

Liberty, not privacy, pervades this opinion like none other, beginning
with the very first paragraph:
Liberty protects the person from unwarranted government intrusions
into a dwelling or other private places. In our tradition the State is
not omnipresent in the home. And there are other spheres of our lives
and existence, outside the home, where the State should not be a
dominant presence. Freedom extends beyond spatial bounds. Liberty
presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. The instant case involves
liberty of the person both in its spatial and more transcendent
dimensions.

Other examples abound:
We conclude the case should be resolved by determining whether the
petitioners were free as adults to engage in the private conduct in
the exercise of their liberty under the Due Process Clause of the
Fourteenth Amendment to the Constitution....

There are broad statements of the substantive reach of liberty under
the Due Process Clause in earlier cases, including Pierce v. Society
of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390
(1923); but the most pertinent beginning point is our decision in
Griswold v. Connecticut, 381 U. S. 479 (1965)

Indeed, the 'right of privacy' makes no other appearance in this
opinion (apart from a quotation from a previous case). Even Justice
Kennedy's rejection of the argument from stare decisis rests on the
centrality of liberty.

In Casey we noted that when a Court is asked to overrule a precedent
recognizing a constitutional liberty interest, individual or societal
reliance on the existence of that liberty cautions with particular
strength against reversing course. . . . The holding in Bowers,
however, has not induced detrimental reliance comparable to some
instances where recognized individual rights are involved.

Liberty, not privacy, is doing all the work here.

A 'Presumption of Liberty'
In addition — and as the dissent notices — now there is no pretense of
a 'fundamental right' rebutting the 'presumption of
constitutionality.' If you reread his opinion, you will see that
Justice Kennedy never mentions any presumption to be accorded the
Texas legislature. More importantly, he never tries to justify the
right to same-sex sexuality as fundamental. Instead, he puts all his
energy into demonstrating that same-sex sexual freedom is a legitimate
aspect of liberty — unlike, for example, actions that violate the
rights of others, which are not liberty but license.

With this as the baseline, the onus then falls on the government to
justify the restriction of liberty. Once an action is deemed to be a
proper exercise of liberty (as opposed to license), the burden shifts
to the government. Though he never acknowledges it, Justice Kennedy
here is employing what I have called a 'presumption of liberty' that
requires the government to justify its restriction on liberty, instead
of requiring the citizen to establish that the liberty being exercised
is somehow 'fundamental.'

All that was offered by the government to justify this statute was the
judgment of the legislature that the prohibited conduct is immoral —
which for the majority (including, in this regard, Justice O'Connor)
is simply not enough, standing alone, to justify the restriction of
liberty. Why not? Because this judgment of immorality means nothing
more than that a majority of the legislature disapproves of this
conduct, which would be true whenever a legislature decides to outlaw
something. Such a doctrine would amount to granting an unlimited
police power to state legislatures. The police power of states may be
broad, but it was never thought to be unlimited — although until
passage of the Fourteenth Amendment, the federal government had no
jurisdiction to protect the privileges or immunities of citizens from
infringement by their own states....

But this is to equate 'liberty' and 'license,' a mistake the Founders
never made. Liberty is — and has always been — the properly defined
exercise of freedom that does not violate the rights of others. Your
right to liberty is not violated by restrictions on your freedom to
rape and murder, because you have no such right in the first place.

This is not to say that liberty may never be regulated (as opposed to
being prohibited outright). It is only to say that the existence of a
right to liberty places a burden on the government to justify any
regulations of liberty as necessary and proper. Wrongful behavior that
violates the rights of others may justly be prohibited without
violating liberty rights — though 'wrongful' does not equal
'immoral.'...

Second, both the Ninth Amendment and the Privileges or Immunities
Clause of the Fourteenth Amendment authorize the protection of
unenumerated (and unenumerable) liberty rights 'retained by the
people.' The Ninth protects against federal violations of liberty
rights; the Privileges or Immunities Clause protects against
violations by states like Texas of liberty rights plus the Bill of
Rights and other privileges or immunities of its U.S. citizens. ...

For Lawrence v. Texas to be constitutionally revolutionary, however,
the Court's defense of liberty must not be limited to sexual conduct.
The more liberties it protects, the less ideological it will be and
the more widespread political support it will enjoy. Recognizing a
robust 'presumption of liberty' might also enable the court to
transcend the trench warfare over judicial appointments. Both Left and
Right would then find their favored rights protected under the same
doctrine. When the Court plays favorites with liberty, as it has since
the New Deal, it loses rather than gains credibility with the public."



To review, I have no idea what your conception of liberty is when you
draw correlaries between family and nation. Barnett and Hayek have
devoted a good deal of work to the concept, and perhaps a reading by
you could aid in crystallizing the concept:


Some texts on liberty:
----------------
_Restoring the Lost Constitution: The Presumption of Liberty_, Randy
E. Barnett
(Austin B. Fletcher Professor, Boston University School of Law and
Senior Fellow at the Cato Institute)
http://www.amazon.com/exec/obidos/tg...l/-/0691115850

_Rights Retained by the People: The History and Meaning of the Ninth
Amendment_
by Randy E. Barnett
http://www.amazon.com/exec/obidos/tg...l/-/0913969222

_The Structure of Liberty: Justice and the Rule of Law_
by Randy E. Barnett
http://www.amazon.com/exec/obidos/tg...l/-/0198297297

_The Constitution of Liberty_
by F. A. Hayek
http://www.amazon.com/exec/obidos/tg.../-/0226320847/ .
[Hayek's extraordinary lucidity is rarely paralleled IMO.]

A few quotes from Hayek I have handy on the topics of
liberty/property/governance are as follows (again I stress that entire
books are written on the topic--bumpersticker quotes always carry the
danger of being misunderstood--do your homework):
~~~~~~~~~~~~~~~~
_THE FATAL CONCEIT_, Hayek
Some quotes related to liberty/property/civilization/governance:

p30
"The individual's ability to decide
for himself how to use specific things, being guided by his own
knowledge and expectations as well as by those of whatever group he
might join, depends on general recognition of a respected private
domain of which the individual is free to dispose, and an equally
recognised way in which the right to particular things can be
transferred from one person to another. The prerequisite for the
existence of such property, freedom, and order, from the time of the
Greeks to the present, is the same: law in the sense of abstract rules
enabling any individual to ascertain at any time who is entitled to
dispose over any particular thing."

p32
"It would seem
that no advanced civilisation has yet developed without a government
which saw its chief aim in the protection of private property, but
that again and again the further evolution and growth to which this
gave rise was halted by a ‘strong' government. Governments strong
enough to protect individuals against the violence of their fellows
make possible the evolution of an increasingly complex order of
spontaneous and voluntary cooperation. Sooner or later, however, they
tend to abuse that power and to suppress the freedom they had earlier
secured in order to enforce their own presumedly greater wisdom and
not to allow 'social institutions to develop in a haphazard manner'
(to take a characteristic expression that is found under the heading
'social engineering' in the Fontana/Harper Dictionary of Modern
Thought (1977))."

p33
"Protection of several property, not the
direction of its use by government, laid the foundations for the
growth of the dense network of exchange of services that shaped the
extended order.
Nothing is more misleading, then, than the conventional formulae of
historians who represent the achievement of a powerful state as the
culmination of cultural evolution: it as often marked its end. In this
respect students of early history were overly impressed and greatly
misled by monuments and documents left by the holders of political
power, whereas the true builders of the extended order, who as often
as not created the wealth that made the monuments possible, left less
tangible and ostentatious testimonies to their achievement."

pp34-35
" Hume noticed clearly the connection of these doctrines to freedom,
and how the maximum freedom of all requires equal restraints on the
freedom of each through what he called the three ‘fundamental laws of
nature': ‘the stability of possession, of its transference by consent,
and of the performance of promises' (1739/1886:11, 288, 293). Though
his views evidently derived in part from those of theorists of the
common law, such as Sir Matthew Hale (1609—76), Hume may have been the
first clearly to perceive that general freedom becomes possible by the
natural moral instincts being ‘checked and restrained by a subsequent
judgement' according to ‘justice, or a regard to the property of
others, fidelity, or the observance of promises [which have] become
obligatory, and acquire[d] an authority over mankind' (1741,
1742/1886:111, 455). Hume did not make the error, later so common, of
confusing two senses of freedom: that curious sense in which an
isolated individual is supposed to be able to be free, and that in
which many persons collaborating with one another can be free. Seen in
the latter context of such collaboration, only abstract rules of
property — i.e., the rules of law — guarantee freedom."

[Recall that Madison studied Hume and was influenced by him.]

pp63-64
Freedom requires that the individual be allowed to
pursue his own ends: one who is free is in peacetime no longer bound
by the common concrete ends of his community. Such freedom of
individual decision is made possible by delimiting distinct individual
rights (the rights of property, for example) and designating domains
within which each can dispose over means known to him for his own
ends. That is, a recognisable free sphere is determined for each
person. This is all-important. For to have something of one's own,
however little, is also the foundation on which a distinctive
personality can be formed and a distinctive environment created within
which particular individual aims can be pursued.
....
The question then is how to secure the greatest possible freedom for
all. This can be secured by uniformly restricting the freedom of all
by abstract rules that preclude arbitrary or discriminatory coercion
by or of other people, that prevent any from invading the free sphere
of any other (see Hayek 1960 and 1973, and chapter two above). In
short, common concrete ends are replaced by common abstract rules.
Government is needed only to enforce these abstract rules, and thereby
to protect the individual against coercion, or invasion of his free
sphere, by others. Whereas enforced obedience to common concrete ends
is tantamount to slavery, obedience to common abstract rules (however
burdensome they may still feel) provides scope for the most extra-
ordinary freedom and diversity. Although it is sometimes supposed that
such diversity brings chaos threatening the relative order that we
also associate with civilisation, it turns out that greater diversity
brings greater order. Hence the type of liberty made possible by
adhering to abstract rules, in contrast to freedom from restraint, is,
as Proudhon once put it, 'the mother, not the daughter, of order'.



=======================================
excerpts from
_Origins of the Bill of Rights_
Leonard W. Levy
http://www.amazon.com/exec/obidos/tg.../-/0300089015/

Leonard W. Levy is Mellon Professor
Emeritus at the Claremont Graduate
School and Distinguished Scholar in
Residence at Southern Oregon State
College. He is the author of thirty-six
books, including Origins of the Fifth
Amendment, for which he received a
Pulitzer Prize. He is also a two-time
winner of the Distinguished Service
Award of Sigma Delta Chi, the Society
of Professional Journalists, a two-time
winner of the Dartmouth Medal of the
American Library Association for best
reference work, and winner of the
American Library Associations Obler
Award for best work in intellectual
history.

A few key quotes contained in the greator body:
1. "Liberty and equality constituted the master principles of the
founding, which the Framers perpetuated as constitutional ideals, even
if slyly."

2. "The triumph of individual liberty against government power is one
of history's noblest themes, epitomized by the Bill of Rights."

3. "So long as we continue to believe that government is instituted
for the sake of securing the rights of the people and must exercise
powers in subordination to those rights, the Ninth Amendment should
have the vitality intended for it."
~~~~~~~~~~~~~
pp3-4

....Broad libertarian practices were the rule, not the exception.
On any comparative basis, civil liberty flourished in America,
a fact that intensified the notoriety of exceptional abridgments,
such as the hanging of four Quakers in Massachusetts in 1659 or
the 1735 prosecution of John Peter Zenger for seditious libel...

The predominance of the social compact theory in American
thought reflected a condition of freedom and, like the experience
with charters, contributed to the belief in written bills of rights.
The social compact theory hypothesized a prepolitical state of
nature in which people were governed only by laws of nature, free
of human restraints. From the premise that man was born free, the
deduction followed that he came into the world with God-given or
natural rights. Born without the restraint of human laws, he had a
right to possess liberty and to work for his own property. Born
naked and stationless, he had a right to equality. Born with certain
instincts and needs, he had a right to satisfy them--a right to the
pursuit of happiness. These natural rights, as John Dickinson de-
clared in 1766, "are created in us by the decrees of Providence,
which establish the laws of our nature. They are born with us; exist
with us; and cannot be taken from us by any human power without
taking our lives." When people left the state of nature and com-
pacted for government, the need to secure their rights motivated
them. A half-century before John Locke's Second Treatise on Gov-
ernment, Thomas Hooker of Connecticut expounded the social
compact theory. Over a period of a century and a half, America
became accustomed to the idea that government existed by con-
sent of the governed, that the people created the government,
that they did so by a written compact, that the compact reserved
their natural rights, and that it constituted a fundamental law to
which the government was subordinate. Constitutionalism, or the
theory of limited government, was in part an outgrowth of the
social compact.
In America, political theory and law, as well as religion, taught
that government was limited.

~~~~~~~~~~~~~
pp8-9

The American colonial experience, climaxed by the contro-
versy with England leading to the Revolution, honed American
sensitivity to the need for written constitutions that protected
rights grounded in the "immutable laws of nature" as well as in the
British constitution and colonial charters. To the English, the
Americans had the wrong ideas about the British constitution.
English and American ideas did differ radically, because the Amer-
icans had a novel concept of constitution. The word signified to
them a supreme law creating government, limiting it, unalterable
by it, and paramount to it. A town orator of Boston announced
that independence offered the people a chance of reclaiming rights
"attendant upon the original state of nature, with the opportunity
of establishing a government for ourselves." "To secure these
rights," Thomas Jefferson declared, "governments are instituted
among men."
The Virginia constitution of 1776, the first permanent state
constitution, began with a Declaration of Rights that restrained all
branches of government (see Appendix: Key Documents). As the
first such document it contained many constitutional "firsts," such
as the statements that "all men" are equally free and have inherent
rights that cannot be divested even by compact; that among these
rights are the enjoyment of life, liberty, and property and the pur-
suit of happiness; and that all power derives from the people, who
retain a right to change the government if it fails to secure its ob-
jectives.

~~~~~~~~~~~~~
pp11-12

.... Even so, the
existence of eight state bills of rights with constitutional status
invigorated Anti-Federalist arguments that a bill of rights should
be appended to the Constitution of 1787. The state ratifying con-
ventions produced about seventy-five recommendations, provid-
ing Madison with an invaluable list from which to create the pro-
posals that he submitted to Congress.
Congress itself supplied a final precedent, the Northwest Or-
dinance of 1787, which planned the evolution of territories to
statehood. The ordinance was the first federal document to con-
tain a bill of rights. To extend "the fundamental principles of civil
and religious liberty," Congress included articles that were to re-
main "forever . . . unalterable," guaranteeing to territorial inhabi-
tants habeas corpus, trial by jury, representative government, judi-
cial proceedings "according to the course of the common law,"
and, as an additional assurance of due process, an encapsulated
provision from Magna Carta protecting liberty and property from
being deprived except "by the judgment of.. . peers, or the law of
the land." The ordinance also included articles protecting the
right to bail except in capital cases, enjoined that all fines should
be
"moderate," and prohibited "cruel or unusual punishment." An-
other article provided a federal precedent for still another provi-
sion of the Bill of Rights: just compensation for property taken for
public purposes. The ordinance also protected the sanctity of pri-
vate contracts, outlawed sex discrimination in land ownership,
banned slavery, and provided for religious liberty. Thus the federal
as well as colonial and state experience with written instruments to
safeguard rights enhanced the claim that a bill of rights should
bridle the new national government.
The Bill of Rights did just that: it was a bill of restraints on
the United States. Congress submitted those restraining amend-
ments to the states for ratification on September 25, 1789, and the
requisite number of state legislatures ratified them by Decem-
ber i 5, 1791. The triumph of individual liberty against govern-
ment power is one of history's noblest themes, epitomized by the
Bill of Rights.

[Note the explicit reminder about the "triumph of individual liberty
against government power."]

~~~~~~~~~~~~~
pp14-15


....All the
Framers were civil libertarians as well as experienced politicians
who had the confidence of their constituents and the state legisla-
tures that elected them...

....According to American revolutionary
theory, the natural rights to which Randolph referred were pos-
sessed by individuals in the state of nature, which existed before
people voluntarily contracted with each other to establish a gov-
ernment whose purpose was to secure their rights. In the state of
nature, when only the law of nature governed, the theory posited
that--as the first section of the Virginia Declaration of Rights
stated--"all men are by nature equally free and independent, and
have certain inherent rights, of which, when they enter into a state
of society, they cannot, by any compact, deprive or divest their
posterity; namely, the enjoyment of life and liberty, with the means
of acquiring and possessing property, and pursuing and obtaining
happiness and safety." ...

And yet, they recognized that the existence of organized so-
ciety and government required the affirmation of certain rights
that did not exist in the state of nature but that served to protect
natural rights. Trial by jury, for example, was unknown in the state
of nature but was necessary for the protection of one's life, liberty,
and property. Accordingly, the Framers recognized a class of
rights "modified by society," just as they recognized that the legiti-
mate powers of government that did not belong to the central gov-
ernment of the Union could be called "the rights of the states." ...

.... In the minds of the Framers, many provisions of the Consti-
tution had a libertarian character: the election of public officials,
the representative system, the separation of powers among three
branches of government, and the requirement that revenue and
appropriation measures originate in the House of Representa-
tives--a protection of the natural right to property and a bar
against taxation without representation. During the controversy
over ratification of the Constitution, when the omission of a bill of
rights was the major issue, many Framers argued, as did Alexander
Hamilton in The Federalist, No. 84, "that the Constitution is it-
self, in every rational sense, and to every useful purpose, a Bill
of Rights."

~~~~~~~~~~~~~
pp19-20

....
Thus, all the protections written into the Constitution were
means of vindicating natural rights, but only one natural right
was constitutionally protected. The overwhelming majority of
the Convention believed, as Roger Sherman of Connecticut suc-
cinctly declared, that a bill of rights "is unnecessary." Why was it
unnecessary, given the fact that the Convention recommended a
new and powerful national government that could operate directly
on individuals? The Framers believed that the national govern-
ment could exercise only enumerated powers or powers necessary
to carry out those enumerated, and no provision for the Constitu-
tion authorized the government to act on any natural rights. A bill
of rights would restrict national powers, but, Hamilton declared,
such a bill would be "dangerous" as well as unnecessary, because it
"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?" ...

....Wilson also insisted on the impossibility of enumerating and re-
serving all the rights of the people. "A bill of rights annexed to a
constitution," he added, "is an enumeration of the powers re-
served. If we attempt an enumeration, everything that is not enu-
merated is presumed to be given. The consequence is, that an
imperfect enumeration would throw all implied powers into the
scale of the government; and the rights of the people would be
rendered incomplete."
Civil liberties, the supporters of the Constitution believed,
faced real dangers from the possibility of repressive state action,
but that was a matter to be guarded against by state bills of rights.
They also argued, inconsistently, that some states had no bills of
rights but were as free as those with bills of rights. They were as
free because personal liberty, to Federalist theoreticians, did not
depend on "parchment provisions," which Hamilton called inade-
quate in "a struggle with public necessity"; it depended, rather, on
public opinion, an extended republic, a pluralistic society of com-
peting interests, and a free and limited government structured to
prevent any interest from becoming an overbearing majority.

....
The Framers of the Constitution tended to be skeptical about
the value of "parchment barriers" against "overbearing major-
ities," as Madison said. He had seen repeated violations of bills of
rights in every state. Experience proved the "inefficacy of a bill of
rights on those occasions when its control is most needed," he
said. In Virginia, despite an explicit protection of the rights of
conscience, the legislature had favored an establishment of reli-
gion, which was averted only because Madison turned the tide of
opinion against the bill. As realists, the Framers believed that
constitutional protections of rights meant little during times of
popular hysteria; any member of the Constitutional Convention
could have cited examples of gross abridgments of civil liberties in
states that had bills of rights.

~~~~~~~~~~~~~
p36

....
To the contention that an enumeration of rights would dis-
parage those not protected, Madison replied that the danger could
be guarded against by adopting a proposal of his composition that
became the Ninth Amendment. If his amendments were "incor-
porated" into the Constitution, Madison said, "independent tri-
bunals of justice will consider themselves in a peculiar manner the
guardians of those rights; they will be an impenetrable bulwark
against every assumption of power in the legislative or executive;
they will be naturally led to resist every encroachment upon rights
expressly stipulated for in the constitution."

~~~~~~~~~~~~~
p246

....
Madison switched to the cause of adding amendments to the
Constitution that would protect individual liberties and allay the
fears of people who would likely support the Constitution, if given
a sense of security about their rights. When he proposed his
amendments to the House, he was mindful that proponents of
ratification had warned that a bill of rights might be dangerous
because the government could violate any right omitted.

~~~~~~~~~~~~~
p247

....He was, therefore, answer-
ing his own previous objection, not one that had been advanced by
Anti-Federalists, when he devised the simple proposal that became
the Ninth Amendment. It was, he said, meant to guard against the
possibility that unenumerated rights might be imperiled by the
enumeration of particular rights. By excepting many rights from
the grant of powers, no implication was intended, and no inference
should be drawn, that rights not excepted from the grant of powers
fell within those powers. As Madison phrased his proposal, it
declared: "The exceptions [to power] here or elsewhere in the
constitution made in favor of particular rights, shall not be so
construed as to diminish the just importance of other rights re-
tained by the people, or as to enlarge the powers delegated by the
constitution; but either as actual limitations on such powers, or as
inserted merely for greater caution." Madison improvised that
proposal. No precise precedent for it existed.

~~~~~~~~~~~~~
pp249-253


.... Those purposes expressed the idea that
governments are instituted to secure the people, said Madison, "in
the enjoyment of life and liberty, with the right of acquiring and
using property, and generally of pursuing and obtaining happiness
and safety." The Declaration of Independence had made the points
more concisely and felicitously, but not with such generosity...
....Conceivably, the committee that eliminated
Madison's prefatory principles believed them to be implicit in its
streamlined version of what became the Ninth Amendment: "The
enumeration in this Constitution of certain rights shall not be
construed to deny or disparage others retained by the people."
Both houses approved.
The Ninth Amendment was a definitive solution to the ratifi-
cationists' problem of how to enumerate the rights of the people
without endangering those that might be omitted. The amend-
ment was also a device for Congress to avoid making a systematic
enumeration when framing the Bill of Rights...

....Another conclusion one must draw from the text of the amendment
is that the enumeration of rights in the preceding text was not
meant to be exhaustive...

....In 1775 Alexander Hamilton wrote that "the sacred rights
of mankind are not to be rummaged for among old parchments or
musty records. They are written, as with a sunbeam, in the whole
volume of human nature, by the hand of the divinity itself, and can
never be erased or obscured by mortal power." Another tough-
minded American materialist had led the way to such thinking.
John Dickinson, speaking of "the rights essential to happiness,"
rhapsodized: "We claim them from a higher source--from the
King of kings, and Lord of all the earth. They are not annexed to
us by parchments and seals. They are created in us by the decrees
of Providence, which establish the laws of our nature. They are
born with us; exist with us; and cannot be taken from us by any
human power without taking our lives. In short, they are founded
on the immutable maxims of reason and justice." Such opinions
were commonplace.
So, too, the directly related views expressed by Jefferson in the
preamble of the Declaration of Independence reflected commonly
held principles. In 1822 John Adams, who had been a member of
the committee of Congress that Jefferson had chaired in 1776,
observed that there was "not an idea in it [the Declaration] but
what had been hackneyed." Jefferson asserted that "all American
whigs thought alike" on those matters. The purpose of the Decla-
ration, he wrote, was not "to find out new principles, or new
arguments. . . but to place before mankind the common sense of
the subject." These views are central to the meaning of the Ninth
Amendment. Contrary to cynical legal scholars of today, the ideas
of the preamble to the Declaration did not go out of fashion in a
decade and a half; and those ideas were as appropriate for writing a
frame of government as for writing a "brief."
The proof derives from both text and context. The text of the
Ninth Amendment does protect the unenumerated rights of the
people, and no reason exists to believe that it does not mean what it
says. The context consists of Madison's remarks about natural
rights during the legislative history of the amendment and also the
references to natural rights in the opinions of the time, or what
Madison called "contemporaneous interpretations." ... At
the Pennsylvania ratifying convention, James Wilson, who had
been second only to Madison as an architect of the Constitution,
quoted the preamble of the Declaration of Independence, and he
added: "This is the broad basis on which our independence was
placed; on the same certain and solid foundation this system [the
Constitution] is erected."
The pursuit of happiness, a phrase used by Locke for a concept
that underlay his political ethics, subsumed the great rights of
liberty and property, which were inextricably related. Lockean
thought, to which the Framers subscribed, included within the
pursuit of happiness that which delighted and contented the mind
and a belief that indispensable to it were good health, reputation,
and knowledge. There was nothing radical in the idea of the right
to the pursuit of happiness. The anti-American Tory Dr. Samuel
Johnson had used the phrase, and Sir William Blackstone, also a
Tory, employed a close equivalent in his Commentaries in 1765
when remarking "that man should pursue his own happiness. This
is the foundation of what we call ethics, or natural law."
In the eighteenth century property did not mean merely the
ownership of material things. Locke himself had not used the word
to denote merely a right to things; he meant a right to rights. In his
Second Treatise on Government, he remarked that people "united
for the general preservation of their lives, liberties, and estates,
which I call by the general name--property." And, he added, "by
property I must be understood here as in other places to mean that
property which men have in their persons as well as goods." At
least four times in his Second Treatise, Locke used the word prop-
erty to mean all that belongs to a person, especially the rights he
wished to preserve. Americans of the founding generation under-
stood property in this general Lockean sense, which we have lost.
This view of property as a human right is the theme of a 1792
essay by Madison on property. He described what he called the
"larger and juster meaning" of the term property. It "embraces," he
said, "every thing to which a man may attach a value and have a
right." In the narrow sense it meant one's land, merchandise, or
money; in the broader sense, it meant that "a man has property in
his opinions and the free communication of them. He has a prop-
erty of peculiar value in his religious opinions, and in the
profession
and practices dictated by them. He has property very dear to him in
the safety and liberty of his person. He has an equal property in the
free use of his faculties and free choice of the objects on which to
employ them. In a word, as a man is said to have a right to his
property, he may be equally said to have a property in his rights." If
the Fifth Amendment incorporated this broad meaning of "prop-
erty" in the due process clause (no person shall be deprived of life,
liberty, or property without due process of law), then "Property"
had a dual meaning in that clause, but only the narrower, mate-
rialistic meaning in the eminent domain or takings clause (private
property shall not be taken for a public use except at a just compen-
sation) survived. This inconsistency in the different uses of the
same word in the same amendment seems baffling. But, no matter
how defined, property rights nourished individual autonomy.
Not only were liberty, property, and the pursuit of happiness
deeply linked in the thought of the Framers, but they also believed
in the principle that all people had a right to equal justice and to
equality of rights. When Lincoln at Gettysburg described the cre-
ation of a new nation "conceived in liberty and dedicated to the
proposition that all men are created equal," he reminded the na-
tion that it could not achieve freedom without equal rights for all
nor could it maintain equality without keeping society free. Lib-
erty and equality constituted the master principles of the found-
ing, which the Framers perpetuated as constitutional ideals, even
if slyly.

~~~~~~~~~~~~~
p260

So long as we continue to believe that government is instituted
for the sake of securing the rights of the people and must exer-
cise powers in subordination to those rights, the Ninth Amend-
ment should have the vitality intended for it. The problem is not
whether the rights it guarantees are as worthy of enforcement as
the enumerated rights; the problem, rather, is whether our courts
should read out of the amendment rights worthy of our respect,
which the Framers might conceivably have meant to safeguard, at
least in principle.

~~~~~~~~~~~~~
End levy quotes
=======================================

(gwhite) wrote in message . com...
sssssssss.......Ka-boom.......

Why do you feel this bizarre need (your intense EGOISM?) to
be so damn off topic GW?

-Ken

(gwhite) wrote in message . com...
sssssssss.......Ka-boom.......

Why do you feel this bizarre need (your intense EGOISM?) to
be so damn off topic GW?

-Ken

(gwhite) wrote in news:698b8866.0411301744.5953dc30
@posting.google.com:

Tim Mullin wrote:

[Big snip]


g-spot wrote in

Dude, get a grip. First you have to show me where, in the documents that
codify the govenment we now have this "prime directive" is stated. You
haven't.

You cannot possibly be serious. If you review the historical facts
and the documents, you'll find the matter is indisputable.

Yes, I am serious. And, yes, though it is "indisputable," I dispute it. So
there it is. You posted a whole lot of stuff, but failed to satisfy my basic
request. The Federalist Papers are not the law of the land. They do not
codify the the govenment we now have. Nor does the Declaration....you won't
find the Supreme Court deciding cases based on what is said in the
Declaration (not that they won't reference it, but it is not used to make or
interpret the law, or as precedent). So you still haven't done it.

You are not capable of judging. Sure I've pasted without explaining
things point-by-point. What makes you think you are free of the
burden of making an effort for yourself and I'm your unpaid tutor?

Dude, what makes you think you can tutor me? I don't need this **** explained
to me. You made some half-assed claim, and I am asking you to support it. So
far, you've done a ****-poor job. If you find the task too tiresome, and not
to your liking, please, feel free to _go_do_something_better_, like ride your
bike or whatever.

Tell you what, you're so smart, explain to me how, if individual liberty is
the prime directive, why the founders saw fit to leave the entire
constitution open to amendment? If individaul liberty was what it was all
about, and such an immutable right, how come they left it up to us to change-
or abolish (even if, as you said "it destroys the prime idea/directive:
individual liberty") it, as we wish? After 1808, the whole document--rights
and all--was in play, for us to change as we saw fit. And, of course, we
have.

The most notable change probably was the 14th Amendment, which extended the
rights (or liberties, if you wish) to the citizens, no matter where they
lived. See, there was this funny situation where the constitution said the
federal government would respect an individual's rights, the states didn't
have to. The states could, and did (for a while, at least) things that were
not allowed the federal government. Which raises another question....If
individual liberty was the prime directive, why did the founders let the
states violate it?

Once again, I do not dispute the importance of liberty to the founders, or as
one of the establishing and guiding principles of our nation. But that's not
what you said. You've said individual liberty is the "prime directive," and
if you still assert that, well, Lucy, you got some `splainin to do.

(gwhite) wrote in news:698b8866.0411301744.5953dc30
@posting.google.com:

Tim Mullin wrote:

[Big snip]


g-spot wrote in

Dude, get a grip. First you have to show me where, in the documents that
codify the govenment we now have this "prime directive" is stated. You
haven't.

You cannot possibly be serious. If you review the historical facts
and the documents, you'll find the matter is indisputable.

Yes, I am serious. And, yes, though it is "indisputable," I dispute it. So
there it is. You posted a whole lot of stuff, but failed to satisfy my basic
request. The Federalist Papers are not the law of the land. They do not
codify the the govenment we now have. Nor does the Declaration....you won't
find the Supreme Court deciding cases based on what is said in the
Declaration (not that they won't reference it, but it is not used to make or
interpret the law, or as precedent). So you still haven't done it.

You are not capable of judging. Sure I've pasted without explaining
things point-by-point. What makes you think you are free of the
burden of making an effort for yourself and I'm your unpaid tutor?

Dude, what makes you think you can tutor me? I don't need this **** explained
to me. You made some half-assed claim, and I am asking you to support it. So
far, you've done a ****-poor job. If you find the task too tiresome, and not
to your liking, please, feel free to _go_do_something_better_, like ride your
bike or whatever.

Tell you what, you're so smart, explain to me how, if individual liberty is
the prime directive, why the founders saw fit to leave the entire
constitution open to amendment? If individaul liberty was what it was all
about, and such an immutable right, how come they left it up to us to change-
or abolish (even if, as you said "it destroys the prime idea/directive:
individual liberty") it, as we wish? After 1808, the whole document--rights
and all--was in play, for us to change as we saw fit. And, of course, we
have.

The most notable change probably was the 14th Amendment, which extended the
rights (or liberties, if you wish) to the citizens, no matter where they
lived. See, there was this funny situation where the constitution said the
federal government would respect an individual's rights, the states didn't
have to. The states could, and did (for a while, at least) things that were
not allowed the federal government. Which raises another question....If
individual liberty was the prime directive, why did the founders let the
states violate it?

Once again, I do not dispute the importance of liberty to the founders, or as
one of the establishing and guiding principles of our nation. But that's not
what you said. You've said individual liberty is the "prime directive," and
if you still assert that, well, Lucy, you got some `splainin to do.

Crashing through the ice yet again, Tim "got my eyes closed cuz it let's me
think what I want" Mullin wrote, but did not read, did not understand:


The same old ****. The cure for sutpidity is still unknown.

Crashing through the ice yet again, Tim "got my eyes closed cuz it let's me
think what I want" Mullin wrote, but did not read, did not understand:


The same old ****. The cure for sutpidity is still unknown.

g-spot wrote in
:

Crashing through the ice yet again, Tim "got my eyes closed cuz it let's me
think what I want" Mullin wrote, but did not read, did not understand:


The same old ****. The cure for sutpidity is still unknown.

Your journey to the Kunich side is now complete.

g-spot wrote in
:

Crashing through the ice yet again, Tim "got my eyes closed cuz it let's me
think what I want" Mullin wrote, but did not read, did not understand:


The same old ****. The cure for sutpidity is still unknown.

Your journey to the Kunich side is now complete.

g-spot wrote:
Crashing through the ice yet again, Tim "got my eyes closed cuz it let's me
think what I want" Mullin wrote, but did not read, did not understand:


The same old ****. The cure for sutpidity is still unknown.

Someone told me once that political discussion here is mostly a
waste of time. Do you think he was correct?

I must say though, extensive cutting and pasting does allow one
to waste time much more efficiently. Even if it does make you look
like a dumbass because you can't make your case in your own words
and in a concise fashion. Your argument can be brilliant and
crushing, but you still look like a dumbass because no one will
read all that ****.

Oh by the way, it's "stupidity".

Bob Schwartz