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Reply #106: You take away individual rights by giving too much power to a simple majority. [View All]

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jobycom Donating Member (1000+ posts) Send PM | Profile | Ignore Fri Dec-05-08 02:45 AM
Response to Reply #21
106. You take away individual rights by giving too much power to a simple majority.
You are in essence saying that the Constitution and Congress--which is the elected, representative legislature in our Republic--has no power to protect individuals from the desires of a simple majority. The restrictions placed on who can become president are not meant to limit the rights of voters, but to limit the powers of government or the powers of the individuals who become the government. If a simple majority were to elect a president who was a full citizen of England and who campaigned on a platform of dissolution of the Constitution and anexation of our government by England, under your interpretation the Constitution could not stop that, it seems to me. Congress has to have the power to limit the authority of individuals to violate the Constitution (by becoming president while not meeting the legal criteria, for instance), or else they don't have the power to protect us from any violation of the rights guaranteed by the Constitution. You can argue then that these rights are not granted by the Constitution, and I'll agree with you, but the Constitution is what establishes our current government as the protector and guarantor of our rights.

Every right takes away a right. My right to live takes away your right to kill me unless I am trying to kill you first. The hierarchy of rights needs some form of legal code and some governmental structure to protect it, to set a proper order, or else we have no rights except those which we as individuals can enforce on our own. That's anarchy, libertarianism, or democracy in the negative sense of "mob rule" that our Founders were so terrified of. Government, in our Republican system, is not an outside power over the citizenry, but is an extension of the citizenry. It is the collective we use to accomplish what we would be powerless as individuals to accomplish. Establish justice, ensure domestic tranquility, provide for the common defense, etc.

Maybe you aren't advocating limiting the Constitution in quite such an extreme manner, but you are advocating ignoring the Constitution and the powers that we the people grant to our chosen collective body--Congress--to enforce the laws we the people have constructed. Once that standard is established--that the power of a simple majority takes precedence over any restrictions or rights established in our government charter--then we the people no longer have any power to protect ourselves from the majority. Civil Rights is not possible. Laws against lynching or supporting abortion rights or not possible, etc, if the majority decides that they don't want these rights.

Further, since we choose Congress and they write the laws that govern the nation, we the people are writing those laws, and we the people, who ratified the Constitution, are placing the Constitutional restrictions on who can become president. Saying that we have no power to enforce the laws we passed means we have no rights whatsoever.

In the specific case of Obama and this fictional forged birth certificate, you are saying, if I understand you, that the time to raise the protest was during the election, and that since the election is over and we chose Obama, Congress cannot enforce the laws that would disqualify him (or any such candidate). Even if we bought that interpretation, we cannot argue that the People chose a disqualified candidate when the fact that disqualifies him was kept from the voters. Even though the story was out there, the majority didn't know about it, and certainly had the impression it was not true. In this case, the will of the People would not be protected by limiting Congress, but would be destroyed by limiting Congress. We would in essence be saying that Congress has no power to protect us from fraud using the laws that we established.

I like some of what you say concerning rights, especially the concept that rights come before the Constitution and from a higher source than the Constitution--undoubtedly that was the belief of many of our Founders, as the writings of Jefferson and Henry show, and as the Declaration of Independence specifically states. And I like the concept that in general the people have the power over the Constitution and Congress. But I think you in essence make the exact same mistake the Libertarians and Republicans make when you see the government and the Constitution as necessarily in opposition to the people. You say that the government WE elect and the government WE empower does not have the authority to enforce the laws WE ratify.

It is not the Constitution saying that a president must be a citizen, or whatever meager requirements are there. It is WE THE PEOPLE saying it, through the Constitution. If we do not like the rules previous generations gave us, WE THE PEOPLE can change those rules. But saying that the rules themselves have no sway is saying that WE THE PEOPLE have no authority whatsoever.

I just can't go with that. We the people establish laws through the Constitution and through our governing bodies, which we the people empower and limit and in all other ways define. (True, we the people can make a mess of it, and like any system we the people cannot keep it perfect). Therefore the laws have to have some power, even over "We the People." There are rights that can not be violated, but saying that government cannot enforce laws against the majority even when the majority violates those laws is saying that "We the People" are powerless, because we have no way to establish anything stronger than mob rule.

As for the "Right to Vote" amendment, I was talking specifically about embedding the requirement to choose the president by election. I understand the ruling of Bush v Gore (and I'm sure others, but I'm not a lawyer so I don't know the cases) that once a state establishes that an election be held, that all the protections of the Constitution against discrimination and restrictions on voting are guaranteed to the people (even though the Court then went on to violate those rights by not requiring that all votes be counted). In other words, the Constitution already protects the right to vote when the right to vote is granted. But nothing in the Constitution grants the right to vote to the citizens in choosing a president (any more than it grants the right to vote to the citizens in choosing Supreme Court Justices). The power to select the president is given to the states, thus the true authority for choosing the president is not with the People. Certainly the people choose the state legislatures that decide how the states choose the Electors, but that is still one step away from the People holding the power directly.

In most normal situations, that's a distinction without a difference. But take Bush v Gore--if the Constitution, rather than giving the power to the states, had given the power to elect to the people, it may not have been possible for the SCOTUS to rule that votes could be left uncounted by the state of Florida (remember, per curia the Court ruled that votes had been left uncounted). But since the ultimate authority for choosing the president lay with the states, and not the voters, ultimately the Court ruled, after the Equal Protection aspect, that Florida could decide how to certify its election. This ruling assumed, specifically, that Florida could thus decide to ignore uncounted votes in its decision.

If the power to choose the president were guaranteed by the Constitution to the People, not to the states, then that aspect of the Court's ruling would not have been possible, I think. (Not that I think the Bush v Gore decision was a legitimate judicial ruling anyway, as Bugliosi demonstrated in "None Dare Call it Treason").

Anyway, now that I've written more than anyone in the world will read, that's my thoughts. I doubt we are completely at odds here. I suspect that we are mostly in disagreement on the fringes of power and authority that are rarely tested in the first place. I do believe the power of the people, and the rights of individuals, are ultimate and sacrosanct and invoilable. But I also believe that government is our ultimate tool for guaranteeing those rights, not a stepping stone in the way of those rights. At times, our rights to violate other rights will be limited by government, and sometimes not fairly or in our favor, but there has to be some ultimate say besides the whim of the People, or else we have anarchy.
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