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Wednesday, June 8. 2011

Enumerated powers

The original argument against the Bill of Rights as an amendment to the Constitution in the US was that it would make it appear that those were the only rights of the people and of the states. 


"Enumerated powers" do not enumerate the rights of the people, but delimit the powers of the state (all Maggie's readers know that). Randy Barnett discusses. A quote:



...before there was any Bill of Rights, defenders of the Constitution claimed that the enumeration of power in Article I would protect the liberties of the people, making a bill of rights unnecessary.



The people opposing the Bill of Rights amendments had a good point.

Posted by The Barrister in History, Our Essays, Politics at 13:33 | Comments (6) | Trackbacks (0)

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Those opposed to the Bill of Rights did have a good point, but I wonder if our rights would have eroded more quickly if there wasn't an amendment you could point to. It's hard enough keeping our rights that are spelled out (e.g. Freedom of speech took a pretty big hit with McCain-Feingold).
#1 mudbug on 2011-06-08 13:39 (Reply)
The Bill of Rights, as the SupCt is interpreting it, is only a speedbump on the path to tyranny. It provides context for the proper part of "necessary and proper". The plain language of "Congress shall make no law ..." is ignored. The SupCt says there are no absolute rights, does a balancing test between government objectives (regulate campaign spending) and the people's rights, and shaves away the rights of We the People. Without the BoR, our Courts would have long ago given unlimited power to the Executive and Legislature.

The SupCt says that as long as they can distinguish that government power are not yet unlimited, then necessary and proper is what the Legislature says it is. It is a Zeno's Paradox SupCt, they allow our Government to come as close as possible to unlimited power without actually being there.

The only recourse, is for We the People to elect a Legislature that is truly dedicated to the Constitution, and refuses to violate the plain meaning. The weak reed Courts will allow the Constitution to be parsed into irrelevance. The Legislature must have the discipline to refuse to go there.
#2 John A. Fleming on 2011-06-08 14:13 (Reply)
To summarize, if We the People do not elect Representatives who bear true faith and allegiance to the Constitution, then our Republic is lost. The Courts cannot and will not protect us from Rubicon-crossing little Caesars.
#3 John A. Fleming on 2011-06-08 15:06 (Reply)
In many ways, our republic is already lost, though I hold out hope for a gradual reversion to it. I remember when I was a kid, "subsidy" was a bad word. The concept of "states rights" was alive and well. The idea of personal responsibility was followed by most people. In short, in so many areas, things have changed and not for the better. We were supposed to have a "Great Society" but when you hear the incidents of utter depravity that are so common - at least compared to the '50s - you realize this is the kind of society you pay money for (the best things in life are free).

Now things were not perfect in the '50s (racism is an ugly thing), but there is no logical reason that ridding society of most of the white/black racism had to create the problems we see now.
#4 mudbug on 2011-06-08 15:47 (Reply)
The problem is addressed by the 10th amendment.
#5 Tomc on 2011-06-08 16:00 (Reply)
The most ignored of them all.
#5.1 mudbug on 2011-06-08 16:08 (Reply)

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