The United States, and the constitution of that nation.

[Double Edge]

as a collective?? lol.

'we the people' is plural, it means all the people that make up the country.

That is what i was referring to as a collective.

'we the people' > constitution > the state

'we the people' is supreme above all.

if anything state will go after individuals, not ppl as collective. as individual you are not above the state.

sure

[Double Edge]

not as a byproduct. it's one of the primary GOALS of the USC, left deliberately vague. strictness in interpretation would actually favor the autocracy.

AM ?

What do you make of this answer in reply to your statement, liberty 'cannot be defined in the USC'

[dalem]

For starters, how about this ?


In essence, WHO is more important ? the people or the state.

A question that gets me into regular conflict with my countrymen.

The people.

-dale

[JAD_333]

To add to what Astralis and Dale said, the starting point for the founders was the inalienable right to life, liberty and happiness. Those words are in the preamble of the Declaration of Independence, most of which is an enumeration of the gripes the colonists had against King George III. The Declaration is not law, per se.

After the Continental Congress had approved the Declaration it was sent off to the British with a cover note from John Hancock, speaker of the congress, saying in effect, this is why we are revolting and be advised that henceforth we are an independent nation.

So, imagine a people starting from zero with a clear understanding of what kind of government they didn't want, hence the kind they did want, and realizing they must limit the power of their new government so as to protect the people's inalienable rights, yet give it enough power to protect the nation from foreign enemies and the people from capricious government and each other.

The first attempt to set up a government (Articles of Confederation) proved unworkable because the federal government it set up was too weak. The second attempt, the Constitution, is what we have now. While it does not mention the inalienable rights by name, it's structure, particularly the Bill of Rights and most subsequent amendments circumscribe them.

One reason the word liberty does not appear in the Constitution or in any other law--I think Asty was getting at this--is that liberty is an elastic term, with one extreme being absolute liberty (no restraints whatsoever) and the other being liberty so long as you don't get in the government's way. Thye medium is equal liberty for all, but only up to the point that it does not encroach on the liberty of others. Thus, if liberty can be what we each of us conceives it to be, writing into law subjects it to a million interpretations, which would give the courts unlimited power. Better to establish the upper and lower limits of liberty by explicitly stating what government cannot do, which then, by implication, conveys and restricts a citizen's liberties. Under those circumstances, I think the founders did a pretty good job of upholding the concept of "we the people".

The Constitution is all there is between us and the return of dictatorial government. That's why I, for one, am a stickler for upholding it, even when a little twist or bend here and there will help people in need. Need and expediency are erosive to any social contract. To Obamacare's insurance mandate I can hear Patrick Henry now, 'give me liberty or give me death' (no pun intended).

[Double Edge]

Thus, if liberty can be what we each of us conceives it to be, writing into law subjects it to a million interpretations, which would give the courts unlimited power.

I have a doubt about this.

if liberty can be what each of us conceives it to be only then does it have a million interpretations as it remains elastic.

But if it were written into law its scope is much more limited as astralis said. Still, I do not see how courts have unlimited power in this case, they only have the power to enforce the letter of the law.

Rather, what i think gives courts unlimited power is vaguely worded laws. If liberty (or anything else for that matter) is vaguely defined then yes courts have unlimited power in curbing it otherwise not.

If liberty were strictly defined it is already by definition limited.

Therefore the best way is as you say further, define upper & lower limits and leave liberty undefined (rather than vaguely). This way liberty comes into being by implication.

Better to establish the upper and lower limits of liberty by explicitly stating what government cannot do, which then, by implication, conveys and restricts a citizen's liberties.

Those upper & lower limits are stated in the USC ?

[JAD_333]

I have a doubt about this.

if liberty can be what each of us conceives it to be only then does it have a million interpretations as it remains elastic.

Obviously, I didn't express myself well enough because that is what I thought I said.

But if it were written into law its scope is much more limited as astralis said. Still, I do not see how courts have unlimited power in this case, they only have the power to enforce the letter of the law.

Rather, what i think gives courts unlimited power is vaguely worded laws. If liberty (or anything else for that matter) is vaguely defined then yes courts have unlimited power in curbing it otherwise not.

Your second paragraph is what I had in mind. If, say, a law were written that said, "the liberties of the people shall not be abridged", a court would interpret the term by the judge's own measure

If liberty were strictly defined it is already by definition limited.

Therefore the best way is as you say further, define upper & lower limits and leave liberty undefined (rather than vaguely). This way liberty comes into being by implication.

Yes. We don't define liberty in law; we establish rights, and furthermore, we limit the power of government to interfere in people's lives.

Those upper & lower limits are stated in the USC ?

Yes, and in case law based on it, such as freedom of speech does not extend to yelling "fire" in a crowded theater.

[astralis]

JAD,

That's why I, for one, am a stickler for upholding it, even when a little twist or bend here and there will help people in need. Need and expediency are erosive to any social contract. To Obamacare's insurance mandate I can hear Patrick Henry now, 'give me liberty or give me death' (no pun intended).

thought this article might interest you. spitzer is rather too comfortable with the idea of a 'living document', but at the same time i'm not an originalist, either.

Affordable Care Act, the Supreme Court, and the Constitution: Harvard law professor Einer Elhauge shows how the Founding Fathers supported mandates. - Slate Magazine

The Constitution is all there is between us and the return of dictatorial government.

if this were true, i'd be a lot more afraid. what keeps a representative republic alive is not a piece of paper but the belief held by the people that it works. plenty of nations have had constitutions that were duly ignored. i think of China, for instance.

that's why we swear to defend the Constitution, not the other way around.

[Double Edge]

Your second paragraph is what I had in mind. If, say, a law were written that said, "the liberties of the people shall not be abridged", a court would interpret the term by the judge's own measure

I think not because liberties isn't defined. so by not defining liberty here it actually allows for the most 'liberal' interpretation (within reason) to hold.

Yes. We don't define liberty in law; we establish rights, and furthermore, we limit the power of government to interfere in people's lives.

Then do we agree with Aditya when he says 'liberty cannot be defined in the USC' and only up to that point.

The next part of his question is, who is more important when it comes to upholding liberty, the people or the state.

The state is responsible for protecting rights enshrined in the constitution. Should the state fail to do so then it falls upon 'we the peope' to police the state. It's a call to arms, insurrection & rebellion against the state.

So as to who is the more important it is neither but 'we the people' because they are the final arbiters.

'we the people' to mean all the citizens as opposed to just 'the people' which isn't as clear.

[JAD_333]

JAD,



thought this article might interest you. spitzer is rather too comfortable with the idea of a 'living document', but at the same time i'm not an originalist, either.

Affordable Care Act, the Supreme Court, and the Constitution: Harvard law professor Einer Elhauge shows how the Founding Fathers supported mandates. - Slate Magazine

I'm amazed Spitzer had the gall to write such an article. The examples he gave of mandates in George Washington's time have no relation to the mandate in Obama care because they are not universal. In other words, you could escape the mandate by not being a sailor, just as you can escape the requirement to have auto liability insurance by choosing not to drive. And Spitzer has conveniently forgotten or maybe he doesn't know that the founders shook out into different schools of thought on the extent of federal power. There were Federalists, who were big on a strong central government and Republicans (not today's of course) led by Jefferson, a founder, who was at the opposite end of the spectrum from Federalists, e.g.
Adams. IMO, it's a BS article grasping for straws.

if this were true, i'd be a lot more afraid. what keeps a representative republic alive is not a piece of paper but the belief held by the people that it works. plenty of nations have had constitutions that were duly ignored. i think of China, for instance.

Well, you have a point and you're making my point. If you don't uphold your constitution, it has no value. Then again if you have no constitution at all, you really are in a fix. I still maintain that OUR constitution, being in the main vigorously upheld by the Supreme Court and defended by the people, is all that stands between us and a dictatorship.

[JAD_333]

I think not because liberties isn't defined. so by not defining liberty here it actually allows for the most 'liberal' interpretation (within reason) to hold.

Are you being contentious for the sake of being contentious? If that isn't what I said, then what do you think I said? Of course, the word liberty is wide open to interpretation. That's why we put limits on ourselves and our government. The limits define liberty, as it were, for we Americans.

Then do we agree with Aditya when he says 'liberty cannot be defined in the USC' and only up to that point.

That's what I said to start with.

The next part of his question is, who is more important when it comes to upholding liberty, the people or the state.

The people are the state and the originator of it. We the people set up the mechanism and can dismantle or amend it.

The state is responsible for protecting rights enshrined in the constitution. Should the state fail to do so then it falls upon 'we the peope' to police the state. It's a call to arms, insurrection & rebellion against the state.

We created a state empowered to protect our rights and use the power we gave it to get other business done, and no more.

So as to who is the more important it is neither but 'we the people' because they are the final arbiters.

Right. Think that way always and be on guard for groups and politicians who would change the contract by acts of law to serve their particular agenda.

'we the people' to mean all the citizens as opposed to just 'the people' which isn't as clear.[/QUOTE]

[astralis]

JAD,

In other words, you could escape the mandate by not being a sailor, just as you can escape the requirement to have auto liability insurance by choosing not to drive.

but if you were an able-bodied man, how could you escape the mandate to buy firearms?

either way, the argument of universality seems to be weak for me. clearly there's a precedent for Congress mandating an economic product/activity on a group of people. in the context of the 18th century, those mandates were hard to escape, indeed-- most people followed what their father did, seeing as how their entire education consisted of an apprenticeship under their father.

anyway, it seems to me that if Congress has no power of universal mandate, it follows that it should not have power to mandate, period. the arguments that work on the former will work on the latter.

Then again if you have no constitution at all, you really are in a fix.

our friends over the pond might have another say

in any case, i think what we're getting at is different. what upholds democracy is a belief in such, with the Constitution "merely" being the physical manifestation of this.

as the quote goes, "The Constitution is not a suicide pact."

[Double Edge]

astralis,

What is the difference between a 'living document' and 'not a piece of paper but the belief held by the people that it works' ?

One and the same isn't it.

[astralis]

DE,

What is the difference between a 'living document' and 'not a piece of paper but the belief held by the people that it works' ?

One and the same isn't it.

these are two seperate ideas. the first is a philosophy of what the Constitution is, the latter is a statement of priority. akin to how money is NOT wealth, but a representation of wealth.

[Double Edge]

are you being contentious for the sake of being contentious?

No

If that isn't what i said, then what do you think i said?

You said...

If, say, a law were written that said, "the liberties of the people shall not be abridged", a court would interpret the term by the judge's own measure.

The 'if' there came across to me like you were thinking aloud, almost asking a question. To which i replied.

Of course, the word liberty is wide open to interpretation. That's why we put limits on ourselves and our government. The limits define liberty, as it were, for we americans.

Then so far i would say we're in agreement not contention :)

We created a state empowered to protect our rights and use the power we gave it to get other business done, and no more.

So what happens in the case where the state does not protect your rights ?

You have a civil war ie a call to arms, insurrection & rebellion.

[Double Edge]

these are two seperate ideas. the first is a philosophy of what the Constitution is, the latter is a statement of priority. akin to how money is NOT wealth, but a representation of wealth.

Was thinking if the constitution is a living document then its not a piece of paper. Because people believe in it and that belief stems from the state's performance of upholding said rights. In short, it works.

It's not possible to pass any laws that do not conform to the constitution. They will get struck down by the supreme court, whose job is uphold the constitution.

But in the case of a country that does not uphold its constitution, you can say that the priority isn't there. Their constitution isn't a living document but a piece of paper.

It would seem to me that priority & living document go together, cannot have one without the other.

Priority has to be present to ensure a living document.