RyanH or any other law students

[RyanH]

You should also keep in mind that many of the rights that are considered constitutional flow inherently from the constitution. There is no way the founders could have envisioned every forseeable circumstance....i.e. the importance of abortion to women.

 

[RyanH]

I found the phrase "due process" mentioned a couple of times in the Constitution. I thought the concept of due process meant the right to be heard, i.e. "one must be afforded a fair hearing", before the government did something to you.

Could you tell me where in the constitution, or when it was amended, such that the principle and working implementation of due process has been appended or bifurcated with the word "Substantive" ?

Also, I can't find privacy as an enumerated fundamental liberty. I find life (relative to being put to death), liberty (I think related to the concept of incarceration, and it's various forms), and property (relative to taking or forfeiture). These I can find within the working text of the constitution as they pertain to the government doing something negative to you.

Could somebody help me out here ?

There are 2 types of due process: substantive and due process. Due process pertains to procedure...i.e the right to have a trial before having your rights taken away. Substantive due process refers to fundamental rights.....its all under the auspices of the 14th Amendment as well as the 5th Amendment to the United States Constitution.

 

[crab3535]

While I agree that the founders were not omniscient, correct me if I'm wrong, but I thought that the founders included within the text of the Constitution a mechanism to change the document to accommodate changing circumstances.

It appears to me that the founders had a pretty clear idea of what they wanted as the fundamental relationship/boundaries between the government and its citizens.

In that sense it appears to be a very conservative document, with the recognition that change might be necessary if enough consensus was reached. I don't see any specific textual guideposts to discerning the concept of "flow" within the constitution.

I also notice that the document as originally adopted contained several contradictions as it relates to its original overarching principles. I speak to the issue of slavery and women's suffrage. However, correct me if I'm wrong, but weren't those issues eventually settled or corrected through the mechanism contained within the document.

Counld somebody help me out here ?

 

[crab3535]

While I agree that the founders were not omniscient, correct me if I'm wrong, but I thought that the founders included within the text of the Constitution a mechanism to change the document to accommodate changing circumstances.

It appears to me that the founders had a pretty clear idea of what they wanted as the fundamental relationship/boundaries between the government and its citizens.

In that sense it appears to be a very conservative document, with the recognition that change might be necessary if enough consensus was reached. I don't see any specific textual guideposts to discerning the concept of "flow" within the constitution.

I also notice that the document as originally adopted contained several contradictions as it relates to its original overarching principles. I speak to the issue of slavery and women's suffrage. However, correct me if I'm wrong, but weren't those issues eventually settled or corrected through the mechanism contained within the document.

Could somebody help me out here ?

 

[RyanH]

While I agree that the founders were not omniscient, correct me if I'm wrong, but I thought that the founders included within the text of the Constitution a mechanism to change the document to accommodate changing circumstances.

It appears to me that the founders had a pretty clear idea of what they wanted as the fundamental relationship/boundaries between the government and its citizens.

In that sense it appears to be a very conservative document, with the recognition that change might be necessary if enough consensus was reached. I don't see any specific textual guideposts to discerning the concept of "flow" within the constitution.

I also notice that the document as originally adopted contained several contradictions as it relates to its original overarching principles. I speak to the issue of slavery and women's suffrage. However, correct me if I'm wrong, but weren't those issues eventually settled or corrected through the mechanism contained within the document.

Could somebody help me out here ?

Since you are undoubtedly wrong, I'll correct you. First, you seem to be referring to the Amendment process. The legislature has had the opportunity to outlaw abortion through a constitutional amendment time and time again. Have they done so? Of cousre, not. Thus, the silence of the legislature gives the Supreme Court grounds to take up the issue, particularly since the right of privacy is a fundamental right, worthy of the most stringent protection. The legislature's silence speaks of its approval and its adherence to Roe v. Wade. If Congress doesn't like Roe v. Wade, then they should have done something about it. Why haven't they?

Because the legislature would rather "punt" to the Supreme Court, particularly with constitutional issues such as abortion . Has the legislature made a constitutional amendment prohibiting abortion? Again, of course not---few politicians would want to except responsbility for such a controversial decision. And regardless, the principle of Marbury v. Madison--that of Judicial Review-is a solid principle that has been in existence for hundreds of years. The Court has found inherent rights from the substantive due process clause such as the right to marriage and procreation. Now, are you going to argue that those rights shouldn't be recognized because the founders didn't explicitly put them into the Constitution. Surely you wouldn't do such a silly thing.

Remember, Judicial Review gives the courts the final say, in essence, if you don't like it, then I suggest you ask why for 200 years the courts have relied on it, again and again, to strike down unconstitutional unwise legislation, and why your Congress has deferred to the Court. Acquiesence, in this instance, means approval.

Ryan.

 

[crab3535]

As I am not a lawyer, I apologize if my ignorance has angered you.

I agree that privacy, marriage and procreation are fundamental rights. I just can't find them in the text of the document. But, I have read somewhere that I believe where there is not a written statute that something called the common law can serve as the basis or bridge to protect some of the "historically fundamental" rights, such as marriage. It is my understanding that where the positive law is silent, the English common law speaks.

Also, correct me if I'm wrong, but I thought that marriage was at its a root a civil contract between two persons, that is recognized by the government. I think that the states all have laws that speak to marriage, and procreation as it relates to the protection of children's interests. I just can't find anything in the US consitution that suggests a federal issue in these areas.

I do remember reading once about the concept of Federalism, and the concern of the founders about the central government imposing a "one size fits all" concept on its constituent states.

As for the lack of any amendment being seen as acceptance of any of the Court's decisions, "acceptance" in this sense can mean no more than 26% of both chambers. Did I misinterpret your chosen numercial standard relative to the concept of congressional acceptance as a positive mandate of the court's decisions?

As for Marbury, I agree that the Court should be the final decision maker in the limited sense of passing judgement on issues of positive law and interpretations that can be grounded in the text of the document.

As for congressional acquiescence as acceptance of the Court's decisions, I can't find anywhere in the document where legislative inaction due to lack of concensus, or worse, due to legislative abdication because of lack of political will, gives the court the authority to presume that issues of great public importance that can't be resolved by the elected representatives of the people, can be resolved by appointed officials. I can't seem to find the authority creating or granting the "court escape hatch" for the legislature anywhere in the constitution.

Could somebody help me out here ?

 

[BuggyWhips]

Hey Ryan

Thanks for the help. Im a finance major so Im quite ignorant when it comes to tearing apart this law stuff. I did understand your analogy to cost/benefit analysis which I am quite familiar with. This is all for an essay I have to write tomorrow for my final so I shall let you know tomorrow how I did.
Your help is greatly appreciated..
Kev

 

[BuggyWhips]

Oh yah, good luck In your career. Congrats on passing your bar exams.