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Date Posted: 10:43:50 12/18/02 Wed
Author: Lawshark
Subject: I'm afraid the Constitution doesn't work that way...
In reply to: coyotyl of rights 's message, "constitutional scholars, is there a flaw in this argument?" on 03:11:41 12/17/02 Tue

"the Constitution basically guarantees the right of anyone to pretty much do anything (your own right to throw a punch ends at the point just short of connecting with someone else's jaw), just so long as it reasonably doesn't infringe upon the rights of others, correct?"

The short answer is "no"...but here comes the long answer:

The Constitution does not actually "grant" any rights to any individual. The document is only the grant of power to the FEDERAL government from the citizens and spells out what the Federal government may do. There is no constitutional right to "do what you want"...although there is arguably an inherent right to do so. The Constitution was intended to LIMIT what the federal government can do, not what individuals can do. The theory was that the federal government could only do what the citizens gave it the power to do...the rights given away by the people. The US is based on the notion that each individual has “natural rights” that are free from government impingement except when limited, regulated or taken away through proper legislative process. Now, some people just love to try to “read” rights into the Constitution (privacy, abortion, etc.) but those rights are real stretches.

You can argue over whether it’s a good idea for something to be a “right” but that doesn’t make it a constitutional right. If the Supremes overturned Roe v. Wade tomorrow…abortion would NOT be illegal. It simply would no longer be a so-called constitutional right. Absent state legislation to the contrary (or proper federal regulation) it would continue to be legal. And I truly don’t believe that it would be banned…the large majority of the population believes that it should be legal BUT with restrictions. Pro-life and Pro-Choice folks would both go nuts because you’d probably end up with 3rd trimester abortions being illegal, 1st and 2nd being legal, parental consent, maybe a waiting period, no partial birth abortion etc. Those are things that tend to get broad support. But I digress…

There was quite an argument at the time over the need for a "bill of rights"...the 1st 10 amendments...since many of the drafters thought that it was obvious that any right not given up by the people was retained by them. Others, like Jefferson, feared the expansion of federal power and wanted to make it damn clear (even though they assumed at the time it was) that the people were only giving up what was enumerated in the Constitution. The compromise was that the Constitution was passed and ratified WITHOUT the Bill of Rights and that the Bill of Rights would be separately drafted, passed and ratified. The Tenth Amendment makes it clear what the intention was...to show that all power not specifically granted to the feds was reserved to the people (or the states, if the people had previously given that power to the state.) The text of the 10th A is as follows:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. “

Too often today the feds act like they have the power to do ANYthing and that it needs to proven that they DON'T have the power. It's actually the reverse...Congress always includes a reference to what enumerated power they are using to pass the law...for years the "catch all" provision were the Commerce Clause, which gives the feds power to regulate interstate commerce. In recent years the Supremes have finally started slapping down some laws from Congress that had only a vague and tenuous connection to regulating interstate commerce (eg, enhanced federal penalties for having drugs near a school). But the fact of the matter is that the Feds must justify every law they pass by reference to a specific part of the Constitution that lets them do it…if it ain’t there, they don’t have the power to pass a law on it.

So, any “right to smoke” or “be free from smoke” was retained by the people unless they gave that right up to the state. By electing representatives to a state legislature we empower them to act on our behalf and limit our rights. So, unless the state constitution prohibits it the legislature can pass all kinds of anti-smoking laws…but in either case it’s not a US constitutional issue.

Aren't you sorry you asked?

Here’s the doc itself…

http://www.law.cornell.edu/constitution/constitution.table.html

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