Thread: Constitutional Amendment to Protect our Inalienable Rights

Originally Posted by Nemo

First of all, there are no "inalienable" rights. (Get that notion out of your head.)

The apparently the founders of America were wrong and there is no reason for government or the US Constitution at all (see my signature).

Originally Posted by Nemo

Secondly, "no doubt" is not the standard to pass constitutional muster.

"No doubt" is not the basis for unanimous consent. "Beyond any reasonable doubt" is the foundation for unanimous consent and it works very well in our criminal justice system.

Originally Posted by Shiva_TD

I have found that Supreme Court justices are very intelligent and sincere when making a decision which is why I would give more power to them in declaring any law or government action unconsitutional as we should not have laws or government actions that are of dubious Constitutionality. If even one justice, upon review, reaches the determination that a law or action is unconstitutional then we don't need the law or action by government.

The Constitutional protections of the Rights of the People should take precedent over government authority.

It is when they do NOT go by what the Consitution says that I have a problem with them. Case in point. 2nd Amendment. I don't care how you cut it, the writings of the founders make it clear that "...the right of the people to keep and bear Arms, shall not be infringed". Yet it was a split decision.

Originally Posted by Shiva_TD

While I'm unaware of any arguments against the unanimous decisions of the US Supreme Court we can find numerous cases where there were arguments that the Supreme Court rendered an invalid decision related to law based upon split-decisions.

If by the underlined you mean to say you're not aware of any questionable unanimous SC decisions, then you are not aware of very much at all as far as American jurisprudence is concerned. The holding in Wickard v Filburn was an outright travesty of justice; and while Marbury v Madison covered too much legal ground to be similarly characterized, Marshall's infamous dictum that "[i]t is emphatically the province and duty of the Judicial Department to say what the law is[]" (and, incidentally, his misquoting of the exceptions clause) did not elicit any dissent from the other Justices.

Originally Posted by beenthere

It is when they do NOT go by what the Consitution says that I have a problem with them. Case in point. 2nd Amendment. I don't care how you cut it, the writings of the founders make it clear that "...the right of the people to keep and bear Arms, shall not be infringed". Yet it was a split decision.

It is exactly this type of split decision that the Amendment I propose would be applicable to. I'm not sure of exactly what case is being referred to or whether the law or government action was determined to be Constitutional or not but obviously some on the Supreme Court determined that the law or action violated "the right of the people to keep and bear arms" and that should be enough to declare the law or action unconstitutional. At best, if the law or action was supported as being Constitutional it is of questionable Constitutionality based upon a split decision. Declaring it unconstitution removes any doubt as to the law or act being an unconstitutional infringement upon the Rights of the People.

The government, in it's actions, should never infringe upon the Constitutionally protected Rights of the People and there should never be a case of questionable infringement that a spilt decision always represents. There is little point in having Protected Rights if the government can infringe upon them in a questionable manner.

Originally Posted by yguy

If by the underlined you mean to say you're not aware of any questionable unanimous SC decisions, then you are not aware of very much at all as far as American jurisprudence is concerned. The holding in Wickard v Filburn was an outright travesty of justice; and while Marbury v Madison covered too much legal ground to be similarly characterized, Marshall's infamous dictum that "[i]t is emphatically the province and duty of the Judicial Department to say what the law is[]" (and, incidentally, his misquoting of the exceptions clause) did not elicit any dissent from the other Justices.

Just because we might disagree with a unanimous decision that supports the Constitutionality of a law or government action does not imply that it's unconstitutional. Perhaps the Constitution isn't limiting enough.

Let me use the case of Wickard v Filburn and an example. If one word was added to the Commerce Clause, as noted below, the decision would have been different:

To regulate direct Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Wickard v Filburn did not deal with a direct but instead addressed an indirect action that affected interstate commerce. It was an extrapolation of "cause and effect" upon which the Court's ruling was made.

Originally Posted by Shiva_TD

It is exactly this type of split decision that the Amendment I propose would be applicable to. I'm not sure of exactly what case is being referred to or whether the law or government action was determined to be Constitutional or not but obviously some on the Supreme Court determined that the law or action violated "the right of the people to keep and bear arms" and that should be enough to declare the law or action unconstitutional. At best, if the law or action was supported as being Constitutional it is of questionable Constitutionality based upon a split decision. Declaring it unconstitution removes any doubt as to the law or act being an unconstitutional infringement upon the Rights of the People.

The government, in it's actions, should never infringe upon the Constitutionally protected Rights of the People and there should never be a case of questionable infringement that a spilt decision always represents. There is little point in having Protected Rights if the government can infringe upon them in a questionable manner.

http://en.wikipedia.org/wiki/Second_...s_Constitution

Second Amendment to the United States Constitution


It was a split decision, clearly the ones that voted against it went against what the framers of the Consitution had in mind. If we were to do anything I would say we should be able to get rid of any justic that voted against what historically was ment by the founders.

Originally Posted by Shiva_TD

Let me use the case of Wickard v Filburn and an example. If one word was added to the Commerce Clause, as noted below, the decision would have been different:

Even if the adjective had any meaning in this context, nobody with a lick of sense gives a damm how the Court would have ruled had the Constitution said something else, hth.

Wickard v Filburn did not deal with a direct but instead addressed an indirect action

There was nothing "indirect" about what Filburn was doing. You are merely attempting to ascribe to him responsibility for effects that were, from a legal perspective, no concern of his. You might just as well claim that if I get into an online debate with someone who becomes so enraged with that he vents that rage on his child, I have "indirectly abused" that child.

that affected interstate commerce.

Yes, an action which Congress has no power to regulate under the commerce clause, since it was not an act of commerce, much less of the sort encompassed by the provision.

It was an extrapolation of "cause and effect" upon which the Court's ruling was made.

Naturally, because the Constitution itself was insufficient to justify the Court's reasoning.

Originally Posted by beenthere

http://en.wikipedia.org/wiki/Second_...s_Constitution

Second Amendment to the United States Constitution


It was a split decision, clearly the ones that voted against it went against what the framers of the Consitution had in mind. If we were to do anything I would say we should be able to get rid of any justic that voted against what historically was ment by the founders.

In looking at the two cited cases (McDonald v. Chicago & District of Columbia v. Heller) I don't see a problem because both struck down the actions of government that infringed upon a protected Right. The "People" won in both cases because the government law/action was declared unconstitutional.

Just because a Supreme Court justice votes on way or another does not imply that they're not qualified.

What we should be addressing is the fact that it is always "The Government v The People" whenever the Constitutionality of the law is in question. The decision process and criteria should be identical to that required to convict a person of a crime. It should require the unanimoust decision of the Court acting as a jury to establish the Constitutionality of any law or government action. A person cannot be convicted of breaking a statutory criminal law if even one member of the jury votes against it.

Originally Posted by yguy

There was nothing "indirect" about what Filburn was doing.

The Supreme Court ruled that by growing excess grain to use as feed it would result in less interstate commerce. While Filburn was selling grain that related to interstate commerce the amount he could produce was limited. His growing more where some was being used for personal purposes it meant that he could sell more which increased the amount of grain being sold interstate. The growing of additional grain for personal use above the limit established was the issue that the Court decided the case upon. He could have used grain from his allocated amount of grain to grow for personal use which would have reduced the amount of grain on the market.

As noted it was an estrapolation because he was actually using the additional grain for private purposes. Had he not been selling any grain at all then there would have been no limit on his overall production.

Once agian, I might disagree with how the commerce clause has been implemented but the Wilburn decision was based upon prior precedent such as the Ball case that related to the use of intrastate waterways (as I recall).

Let us remember one thing as well. A requirement for a unanimous decision by the Supreme Court to establish Constitutionality does not promise a perfect court. What it does do is remove 99% of the problems created by split decisions.