The U.S. Constitution: Pro-Freedom?

[donnay]

I still don't follow. I have already freed my mind, and promote those who have done the same. It was my understanding that you don't support this "crap". Is your "solution" to listen to AJ, "vote" for DeSantis, etc., and hope to get more to participate in "the system"?

My solution is to use discernment, get people who want God back in this country to bless it once again. It's just that simple.

[Snowball]

What makes you think I'm even saying that?

Maybe the confusion is coming from you seeing something about abortion in the Bill of Rights that I'm just not seeing. You must be reading from a different version of the BoR because apparently yours doesn't include the 10th Amendment.

Take slavery, for example. Kind of a critical issue to the topic of freedom, wouldn't you say? Yet, they did actually bother to amend the Constitution to abolish it (messy details aside). They didn't just strain to interpret something out of the existing Bill of Rights to justify making it illegal. Why do you suppose they didn't just pass a law to make it illegal? Maybe because 10 years or so later the other side gets a simple majority and passes a law that makes it legal again. Then the other side comes back and says "no it's illegal! Legal. Illegal! Legal!"

If you think banning abortion is critical enough to require an amendment to the Constitution, then campaign to have one passed. (i'll even sign the petition myself, although I have little expectation that it would pass). If that seems insurmountable, be GLAD that you can at least find agreeable company to make it illegal at the state level. And you know which amendment expressly reserves that right?

I'll give you a hint: It's a whole number between 9 and 11.

https://tenthamendmentcenter.com/202...ct-the-unborn/

Maybe the confusion here arises from the fact that you're adressing me as if I'm talking about what my position is. I'm really not, but rather merely presenting the historical and legal avenues by which the government has and continues to approach abortion. Like gay marriage and other issues, the government deems these to be within the federal oversight because the cases and rulings are considered relevant to the individuals' protections under the Bill of Rights. When SCOTUS rules on a state law being Constitutional or not, it is doing so because it does - indeed - have the legal mandate to do this. When Lindsey Graham or the Democrats introduce bills concerning abortion in the Congress, they do so because they have the legal ability to set Federal law on the matter.

The states do not have the authority to self-interpret the Bill of Rights for any American and the SCOTUS has constantly ruled on the Constitutionality of state laws regarding interpretation of the Bill of Rights in application to all Americans. Most Pro-Life lawyers and pols see the Bill of Rights extending to the unborn, and the "personhood" of the fetus. Roe v. Wade said that if personhood was established in the womb, Bill of Rights would extend to the unborn.

That's all I'm saying about this. Merely answering your questions concerning the way they see it. As someone that wants to abolish the Constitution and revert to the Articles or start over, I'm in this thread to discuss its true character and results.

[Invisible Man]

Take slavery, for example. Kind of a critical issue to the topic of freedom, wouldn't you say? Yet, they did actually bother to amend the Constitution to abolish it (messy details aside). They didn't just strain to interpret something out of the existing Bill of Rights to justify making it illegal. Why do you suppose they didn't just pass a law to make it illegal? Maybe because 10 years or so later the other side gets a simple majority and passes a law that makes it legal again. Then the other side comes back and says "no it's illegal! Legal. Illegal! Legal!"

But the way they amended the Constitution in the 14th Amendment gave the federal government power over the states that applied not only to slavery but to any other violations of rights as well. The 14th Amendment basically nullified the 10th Amendment when it comes to any state laws that violate the terms of the 14th. The 14th doesn't require us to look to the BOR to determine what rights people have (in fact, I think that's misguided). But even if it did, the 9th Amendment could easily be brought to bear on the abortion issue. IMO the part of the 14th that could most easily be used to support federal abortion restrictions is the equal protection clause.

This is academic though. It really doesn't matter whether or not abortion would be a state or federal issue under an originalist interpretation of the Constitution. The fact is, we are many decades removed from the days when the 10th Amendment really mattered. Notice that, in spite of all the people who have been saying that Dobbs returned abortion to being a state issue and not federal, I saw nothing in Alito's opinion that indicated that. He merely insisted that legislation, such as what Roe v. Wade established, should come from the legislative branch of government and not the judicial. By my reading, he left the door wide open for federal laws on abortion that originate in Congress rather than the courts. He said nothing about it being a state issue as opposed to federal, unless I missed it.

[Sonny Tufts]

So, as I said, a state can do what they want. If other states want to issue an ultimatum, and say, "comply with our interpretation or we'll kick you out of the union", that remains their prerogative.

South Carolina thought that way in 1860. It didn't work out too well.

You failed to mention another alternative: the other states could demand the recalcitrant state remain in the Union and stop doing whatever it was doing that violated the Constitution, arguing that the Constitution was a contract among the States and that no party to a contract has the right to unilaterally withdraw from or breach it.

[Occam's Banana]

South Carolina thought that way in 1860. It didn't work out too well.

South Carolina thought that way in 1776, too - and that time, as it happened, it did work out for them.

You failed to mention another alternative: the other states could demand the recalcitrant state remain in the Union and stop doing whatever it was doing that violated the Constitution, arguing that the Constitution was a contract among the States and that no party to a contract has the right to unilaterally withdraw from or breach it.

Yes, that's right - the other states could indeed make such demands. But unless they also had the will and wherewithal to bloodily force those demands upon any sufficiently recalcitrant states (and then actually do so successfully), all their arguments would amount to nothing but empty and impotent words.

IOW: Lincoln did not secure South Carolina's continued membership in the Union due to the puissant acumen of his legal arguments. He did it by being willing and able to slaughter many tens of thousands of people in order to impose his will.

[TheTexan]

South Carolina thought that way in 1860. It didn't work out too well.

You failed to mention another alternative: the other states could demand the recalcitrant state remain in the Union and stop doing whatever it was doing that violated the Constitution, arguing that the Constitution was a contract among the States and that no party to a contract has the right to unilaterally withdraw from or breach it.

A contract that one is not allowed to exit, is called slavery.

[Sonny Tufts]

A contract that one is not allowed to exit, is called slavery.

No, it's called a contract, which is a promise the law will enforce. Do you think you can simply walk away from your home mortgage obligation and that requiring you to repay the loan you got to buy your house is slavery?

[Sonny Tufts]

Yes, that's right - the other states could indeed make such demands. But unless they also had the will and wherewithal to bloodily force those demands upon any sufficiently recalcitrant states (and then actually do so successfully), all their arguments would amount to nothing but empty and impotent words.

That's true -- but sometimes it works well short of bloody conflict. For example, Arkansas and Alabama (through their respective Governors, Orval Faubus and George Wallace) were persuaded to cease their opposition to racially integrated schools without having to go to war.

[PAF]

No, it's called a contract, which is a promise the law will enforce. Do you think you can simply walk away from your home mortgage obligation and that requiring you to repay the loan you got to buy your house is slavery?

I could have sworn I didn't sign anything to the like. I triple-checked in case I was drunk, or coerced when I was in my younger, but I still can't find any traces of it. I see a bunch of other names on there, but mine's not on it.

[TheTexan]

No, it's called a contract, which is a promise the law will enforce.

Wrong. The law provides a means of remedy in case of breach of contract, but the law does not enforce contracts.

If I enter a contract to fix your roof, and I refuse to do so, that's breach of contract. You are entitled to remedy for damages incurred as a result of the breach. But you are not entitled to force me to fix your roof.

The only exception to this is when a court orders specific performance. However this is limited almost exclusively to land sales and is otherwise an extremely rare remedy that has numerous restrictions on it. With these restrictions, a "constitutional contract" between the states and federal government, would not have specific performance available as a remedy.

https://en.wikipedia.org/wiki/Specific_performance

Do you think you can simply walk away from your home mortgage obligation

Uh, yes?

and that requiring you to repay the loan you got to buy your house is slavery?

I'm not required to repay the loan. I can walk away from the mortgage, and the house, at any time. What happens afterwards depends on what state you live in and whether the bank sells the house for more or less than what remained on the loan. But in every state, declaring bankruptcy remains an option.

[Occam's Banana]

Yes, that's right - the other states could indeed make such demands. But unless they also had the will and wherewithal to bloodily force those demands upon any sufficiently recalcitrant states (and then actually do so successfully), all their arguments would amount to nothing but empty and impotent words.

That's true -- but sometimes it works well short of bloody conflict. For example, Arkansas and Alabama (through their respective Governors, Orval Faubus and George Wallace) were persuaded to cease their opposition to racially integrated schools without having to go to war.

They were not persuaded. They submitted. That is not the same thing. [1]

They did not submit because they belatedly recognized the correctness of their opponents' legal doctrines (or the errors of their own).

They submitted because they did not have the will and/or wherewithal to resist the forcible imposition of their opponents' legal doctrines.

Had Kennedy not federalized the Alabama national guard - or had the Alabama NG not complied with Kennedy's executive order - Wallace's (in)famous "Stand in the Schoolhouse Door" might have had rather different results.

Wallace's submission certainly counts as being "well short of bloody conflict" - but that is not due to the efficacy of any legalistic eyewash concerning the "breach" of any "contract among the States" or such. It is due to the fact that he was unwilling and/or unable to be "sufficiently recalcitrant", as I phrased it previously. (IOW: In the game of chicken he tried to play with the feds, Wallace blinked first.)



[1] At most, they can be said to have been "persuaded" only in the sense that a mugger's victim is "persuaded" to hand over his wallet - but in that sense, "persuasion" merely becomes a euphemism for "submission".

[Brian4Liberty]

The good old days...

[PAF]

The good old days...

I was fully on board and worked hard on his campaign. If anybody took the time to hear between the words, or actually spent time and broke break with Ron Paul, they would immediately know and understand Ron to be a Voluntarist. Ron has said that he never wanted to enter into politics, but it was a mechanism for him to speak and educate. Austrian economics, personal liberty, stay out of the affairs of others, etc. He understands the CONstitution better than most, and yes, it would be good to return to it as compared to where we are today. But there are many things in the CONstitution which are repugnant to personal liberty, to which I am almost, though not 100% sure, Ron would agree. Had Ron flat out and said those things, he never would have had a platform of which to speak.

[Sonny Tufts]

With these restrictions, a "constitutional contract" between the states and federal government, would not have specific performance available as a remedy.

If George Wallace hadn't capitulated, I am sure the federal government and/or the Alabama National Guard would have forced Alabama to desegregate the University, just as Eisenhower did with respect to the Little Rock school in 1957.

I'm not required to repay the loan. I can walk away from the mortgage, and the house, at any time. What happens afterwards depends on what state you live in and whether the bank sells the house for more or less than what remained on the loan. But in every state, declaring bankruptcy remains an option.

There are some contractual debts that aren't dischargeable in bankruptcy. But in any event, it's not slavery. Your original claim that a "contract that one cannot exit is slavery" was a gross generalization unsupported by the law, as your reference to specific performance demonstrates.

[TheTexan]

Your original claim that a "contract that one cannot exit is slavery" was a gross generalization unsupported by the law, as your reference to specific performance demonstrates.

"a gross generalization"? What I said was a pretty $#@!ing accurate generalization, considering that specific performance is almost never applied, precisely because it is such an extreme measure. The fact that it so rarely is used and only with so many restrictions only serves to enhance my point. One of those restrictions, is it shouldn't be used for personal service!! (because that would be $#@!in' slavery)

You are bending yourself over backwards doing mental gymnastics to try to explain how forcing someone to perform services against their will, is not "slavery".

Because you are a petty tyrant, and that's what petty tyrants do.

[acptulsa]

No, it's called a contract, which is a promise the law will enforce. Do you think you can simply walk away from your home mortgage obligation and that requiring you to repay the loan you got to buy your house is slavery?

He's absolutely right, and you're dead wrong.

Allow me to rephrase what he said. Any contract which a party can never discharge to the satisfaction of all parties and walk away from saying the deed is done is slavery.

[Invisible Man]

I don't see any way the US Constitution can be a legally binding contract.

Mind you, I can't deny that it must be legally binding according to US Law, pretty much by definition. But arguing that it's legally binding on the basis of US Law would just be a circular argument. I don't think it can hold up to scrutiny under a logically and ethically defined set of criteria for legally binding contracts.

[TheTexan]

He's absolutely right, and you're dead wrong.

Allow me to rephrase what he said. Any contract which a party can never discharge to the satisfaction of all parties and walk away from saying the deed is done is slavery.

What I'm saying is not even a controversial opinion. My opinion is shared by basically every legal scholar in America, and it's taught in 1st year of law school when they cover Restatement (Second) of Contracts.

https://www.amazon.com/Restatement-S.../dp/B00EQCEZS6

https://matthewminer.name/law/outlin...R2C+%C2%A7+367

Personal service contracts are unenforceable as it constitutes "involuntary servitude" if not outright "slavery".

13th amendment:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

So when people compare the Constitution to a contract, and then say a party to that contract cannot voluntarily leave ("breach") that contract, it goes against basically every standard of common law.

[nobody's_hero]

But the way they amended the Constitution in the 14th Amendment gave the federal government power over the states that applied not only to slavery but to any other violations of rights as well. The 14th Amendment basically nullified the 10th Amendment when it comes to any state laws that violate the terms of the 14th. The 14th doesn't require us to look to the BOR to determine what rights people have (in fact, I think that's misguided). But even if it did, the 9th Amendment could easily be brought to bear on the abortion issue. IMO the part of the 14th that could most easily be used to support federal abortion restrictions is the equal protection clause.

The dilemma of using the 14th Amendment is that there's no consensus on what the "right" is here. Yes, the 14th guarantees equal protection of rights (allegedly), but you still have to settle the debate over what the 'right' is. To give another example: People in California think everyone has the right to have a roof over their head (those homeless programs are getting nuts), but if someone tries to tell the state of Georgia that it must force hotels to give up vacant rooms to homeless people, it's gonna cause quite a stir. Chicago thinks everyone has the right to a universal basic income. That ain't gonna fly in Georgia. Is this unequal protection of rights? How could Georgia allow such an injustice against homeless, jobless American citizens living in its state, who only desire free money and a hotel room with HBO? Or . . . perhaps there a disagreement over what the 'right' is.

So with abortion, what is the right in question? Half will argue that the woman's right to choose takes precedence to decide whether to continue the pregnancy to full term. The other half argues that the right to life of the unborn has priority.

It [the right to life, or the right to choose] really needs to either be codified into the Constitution via an amendment, or simply left for the individual states to determine (10th Amendment). A simple 51% majority to pass a basic law is fragile and frankly, useless, for settling the issue.

[Invisible Man]

The dilemma of using the 14th Amendment is that there's no consensus on what the "right" is here. Yes, the 14th guarantees equal protection of rights (allegedly), but you still have to settle the debate over what the 'right' is.

Not just allegedly. The 14th literally says, "No state shall deny to any person within its jurisdiction the equal protection of the laws."

So what is the right in question? Half will argue that the woman's right to choose takes precedence to decide whether to continue the pregnancy to full term. The other half argues that the right to life of the unborn has priority.

It really needs to either be codified into the Constitution via an amendment, or simply left for the individual states to determine (10th Amendment). A simple 51% majority to pass a basic law is fragile and frankly, useless, for settling the issue.

But nothing you're saying here somehow makes this a state issue rather than federal. Nor does it require a new amendment to codify anything in the Constitution.

The last line of the 14th says, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

The point of the Dobbs decision was that, with respect to abortion and the balancing of the rights of mothers and the rights of babies that it involves, the debate to which you refer should be resolved by Congress through appropriate legislation, and not the Supreme Court.

[nobody's_hero]

Not just allegedly. The 14th literally says, "No state shall [FONT="]deny to any person within its jurisdiction [/FONT]the equal protection of the laws."

I meant allegedly in the sense that the government doesn't do a very good job of guaranteeing equal protection under the 14th. That's why liberals can burn down city blocks and get released 30 minutes after arriving at the jail, while conservatives break one window and they rot in jail for months.

I agree completely, that's what the 14th says. Just making an offhanded observation on whether it is applied in practice.

But nothing you're saying here somehow makes this a state issue rather than federal. Nor does it require a new amendment to codify anything in the Constitution.

The 10th Amendment is what makes it a state issue. It's why some states require you to have front and rear license plates displayed on your vehicle, while other states only require the rear one.

If we're to leave such a broad interpretation of the 14th to mean that the federal government has the power to make any laws it wants to under the pretext of making all things equal, then there's really no limit whatsoever to what they could do.

20 states (mine included) are still living in the dark ages where we only require a rear license plate. We need a federal law to make these states require one on both the front and rear, because it isn't fair. No, we'd need a constitutional amendment. Otherwise it's a 10th Amendment prerogative to set the laws on displaying license plates. Just as it is a 10th amendment prerogative to determine where life begins. If you want the federal government to decide where life begins, you're going to have to give it the constitutional authority to do so.

[nobody's_hero]

This is probably deserving of its own thread.

did-the-constitution-fail-the-people-or-did-the-people-fail-the-constitution?

Did the Constitution fail?

A lot of people think it did. This popular quote by Lysander Spooner sums up the thoughts of many.

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Arguing against ratification of the Constitution, Brutus wrote:

“Constitutions are not so necessary to regulate the conduct of good rulers as to restrain that of bad ones.”

It’s pretty easy to see that didn’t happen. The bad ones have expanded federal government power decade after decade to the point that we now live under the largest government in history. It’s understandable for some people to conclude that the Constitution failed in its primary aim.

But asking whether the constitution failed is actually the wrong question. To find out the source of the problem, we need to dig a little deeper. . . .[continued at link]

[acptulsa]

20 states (mine included) are still living in the dark ages where we only require a rear license plate. We need a federal law to make these states require one on both the front and rear, because it isn't fair. No, we'd need a constitutional amendment. Otherwise it's a 10th Amendment prerogative to set the laws on displaying license plates. Just as it is a 10th amendment prerogative to determine where life begins. If you want the federal government to decide where life begins, you're going to have to give it the constitutional authority to do so.

And the commerce clause then even confers on us the ability to carry our law-abiding status into states where the law is different. I don't have to make a photocopy of my Oklahoma plate and tape it to my front bumper to drive into Missouri.

This, too, is an aspect of the letter, the spirit, and the tradition of the Constitution which is under constant attack, and which they're trying to erode.

[PAF]

This is probably deserving of its own thread.

did-the-constitution-fail-the-people-or-did-the-people-fail-the-constitution?

Why continue it? This sums up it perfectly:

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

Anytime a transfer of power and wealth are concerned, outside of a bilateral contract, it is theft. The constitution is repugnant to individual liberty.

[Invisible Man]

The 10th Amendment is what makes it a state issue. It's why some states require you to have front and rear license plates displayed on your vehicle, while other states only require the rear one.

That's apples and oranges. If a state required that black people have front and rear license plates but white people only had to have rear ones, then the 14th Amendment authorizes Congress to write laws to take action against those state for denying certain persons in them equal protection under the law with other persons. But applying the same law to all persons, whether it be requiring two license plates or just one, wouldn't violate that.

In abortion, states have laws against murder that protect some persons and not others, specifically the unborn.

[nobody's_hero]

Why continue it? This sums up it perfectly:

“But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case it is unfit to exist.”

I've admitted that I wasn't able to finish Larkin's video, so if you stopped reading after that then I guess we're even.

[nobody's_hero]

That's apples and oranges. If a state required that black people have front and rear license plates but white people only had to have rear ones, then the 14th Amendment authorizes Congress to write laws to take action against those state for denying certain persons in them equal protection under the law with other persons. But applying the same law to all persons, whether it be requiring two license plates or just one, wouldn't violate that.

In abortion, states have laws against murder that protect some persons and not others, specifically the unborn.

I would try to play devil's advocate and present the 'pro-choice' counter-equivalency to that, but seeing as I'm actually pro-life I'd probably muck it up.

It would probably go something like: "Some states have laws against mandating personal medical decisions, and not others, specifically mothers."

That was hard to type out because I can't conscientiously relegate what I see as murder to a 'personal medical decision', but I'm well aware that there are areas of the country where a majority of people would think that the mother's right to choose is the most important right to protect (ironically the states that still have mask mandates, but whatever). So, they can have their laws for their people, I can have my laws for mine.

Or, we support federal Congress passing a simple majority-vote law that will apply to everyone, but will not have near the endurance against repeal efforts that constitutional amendment would.

Bonus question: Why didn't the framers put in an enumerated power for the federal government to make laws against murder? That seems pretty important, but regular old murder is still not a federal crime. Only in certain circumstances does the federal government get involved. Otherwise it is handled by the states.

[PAF]

I've admitted that I wasn't able to finish Larkin's video, so if you stopped reading after that then I guess we're even.

I did in fact read the article otherwise I would not have responded.

[nobody's_hero]

I did in fact read the article otherwise I would not have responded.

You do realize, though, that the author was quoting Lysander Spooner as an example of what he often hears from the Constitution's critics—it wasn't actually part of his argument.

[PAF]

You do realize, though, that the author was quoting Lysander Spooner as an example of what he often hears from the Constitution's critics—it wasn't actually part of his argument.

Yes, I realize that. I also studied Lysander Spooner decades back when I attended USC.