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December 17, 2009 11:30 AM   Subscribe


 
Let there be justice. Please.
posted by magstheaxe at 11:35 AM on December 17, 2009 [1 favorite]


Cool. Maybe that Obama guy is making a difference after all.
posted by msalt at 11:35 AM on December 17, 2009


Not hating on the post, bricabrac, but some folks might want to know that your last link goes to some frothy anti-immigration blog. Thanks for the post.
posted by joe lisboa at 11:37 AM on December 17, 2009


Not hating on the post, bricabrac, but some folks might want to know that your last link goes to some frothy anti-immigration blog. Thanks for the post.

Ah crap, I must confess I didn't even realize that, I've been skimming a few different site's headlines.

Mods, feel free to replace with this
posted by the bricabrac man at 11:46 AM on December 17, 2009


I didn't read very far in the last link, until reading joe lisboa's comment. From the last link: Even Governor Ed Rendell stepped into the case asking the Justice Department to look into "Civil Rights violations" after urgings from Hispanic groups. Apparently the governor does not understand what a civil right is. Civil Rights are those bestowed on a citizen by their country. Illegal aliens in the United States are not citizens of the United States and thus do not have civil rights in this country that can be violated.

Wow.
posted by filthy light thief at 11:47 AM on December 17, 2009 [6 favorites]


thanks the bricabrac man, I replaced it.
posted by jessamyn at 11:47 AM on December 17, 2009


Here's an ADL brief on the Dan Amato clown I mentioned above. Looks like we should take his analysis with a slight grain of salt.
posted by joe lisboa at 11:48 AM on December 17, 2009


Oops: irrelevant, now. Ignore.
posted by joe lisboa at 11:51 AM on December 17, 2009


Civil Rights are those bestowed on a citizen by their country. Illegal aliens in the United States are not citizens of the United States and thus do not have civil rights in this country that can be violated.

I'd just like to note that this view is dramatically to the right of Ann Coulter.
posted by Jaltcoh at 11:51 AM on December 17, 2009 [6 favorites]


Much, much more background is available here.

Just in from the (Harrisburg, Pa.) Patriot-News:
"A police chief charged with trying to cover up the fatal beating of a Mexican immigrant by white teenagers has been ordered detained until trial.

"At a bail hearing today in Wilkes-Barre, Judge Malachy Mannion called Shenandoah police Chief Matthew Nestor 'clearly, unequivocally a serious danger to witnesses in this case.'"
posted by MonkeyToes at 11:55 AM on December 17, 2009 [4 favorites]


THIS STORY has more details on the "harassing witnesses" charges.

> Moyer was the first officer who arrived at the homicide scene and met with the 911 caller. Rather than chase the suspects, he let them go and threatened the witness by pointing his electronic stun gun at the person's head.

> Hayes, boyfriend of the mother of one of the teen suspects, targeted relatives of witnesses of the beating. He arrested a witness for loitering and prowling at nighttime while the witness was legally entering an acquaintance's home. Hayes then took the person to a police department in another town to be charged on Hayes' allegedly bogus claims.

posted by the bricabrac man at 11:57 AM on December 17, 2009


Nestor, the small town police chief, was also indicted for extorting money from gambling operations, and taking a $2,000 bribe to free a businessman. In another incident -- which Judge Mannion was referring to -- he drove a potential witness out into the country and made him strip naked in the woods, before letting him return home.
posted by msalt at 12:01 PM on December 17, 2009 [1 favorite]


Apparently the governor does not understand what a civil right is. Civil Rights are those bestowed on a citizen by their country.

Are you... are you fucking kidding me? That's essentially National Socialism. No, seriously, they believe that all rights are granted by the state. That's exactly the opposite of the American belief that certain rights are inalienable and "endowed by the Creator" (meaning they're the birthright of all humans, not that the Judeo/Christian God has anything to do with it).
posted by DecemberBoy at 12:10 PM on December 17, 2009 [24 favorites]


No, seriously, they believe that all rights are granted by the state.

Thomas Jefferson: "A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."
posted by joe lisboa at 12:20 PM on December 17, 2009 [29 favorites]


[U.S. Magistrate Judge Malachy] Mannion said the allegations depict a "vile set of activities," with Nestor's alleged crimes particularly "heinous." He said all the officers have ever known are local courts, but warned they now face justice in the federal system.

"You have now made it to the major leagues in the only place someone doesn't want to make it to the major leagues," Mannion said.


That's one cool judge.
posted by stargell at 12:31 PM on December 17, 2009 [23 favorites]


"A police chief ordered held without bail on charges he tried to cover up the fatal beating of a Mexican immigrant by white teenagers was named in a 2006 lawsuit that claimed police beat to death a Hispanic teenager, then made it look like a suicide."

Uh, wow. If he and others are convicted, I wish they'd go into the prison's general population, but they'll likely be placed in the protective custody unit.
posted by ericb at 12:50 PM on December 17, 2009


i live here. this has been such a horrible thing. i never even thought to post it on meta.

i couldn't believe when they got off, but at the same time i could. it was a jury of the accuseds' peers, there was no one who was a peer of the victim.

simple assault my ass. you don't kill someone while "simply" assaulting them.

i don't know if life in prison is the right punishment for the beaters. it's not going to make anything better and it's certainly not going to help them be more productive members of society. but how do you make them understand that what they did was wrong, and not because of how it affected their lives, but the whole basis of their actions was wrong and awful and inhumane? if they don't understand that, will prison make them understand that? i guess it's the only real punishment available tho.

it's just such a miserable situation. and now all this mess about the cop. christ, no wonder people lose faith in the law and order of this country.

i'm just glad i am not personally involved in this in any way and really feel for everyone who is.
posted by sio42 at 12:53 PM on December 17, 2009 [2 favorites]


on preview - i really hope that didn't come off as me being tolerant of what they did in any way. it's just such an overwhelming and completely WTF case. i've barely been able to wrap my head around the last couple years.
posted by sio42 at 12:56 PM on December 17, 2009


Uh, wow. If he and others are convicted, I wish they'd go into the prison's general population

I sort of wish that they'd somehow get sent to prison here in Texas, where they would soon meet the Mexican Mafia. However, it's wrong to think those kinds of things.
posted by DecemberBoy at 12:58 PM on December 17, 2009


Who does that police chief think he is, Joe Arpaio?
posted by oneswellfoop at 1:02 PM on December 17, 2009 [6 favorites]


Apparently the governor does not understand what a civil right is. Civil Rights are those bestowed on a citizen by their country.

The more I think about this, the more pissed off I get. This guy is worse than skinheads, because at least they realize they're Nazis. He tries to pass off this fascist shit like it's a central tenet of American beliefs. A WHOLE LOT of people died horribly because of, or fighting against, poisonous ideas like this. It was called "World War II", and your side lost, asshole.
posted by DecemberBoy at 1:05 PM on December 17, 2009 [20 favorites]


Uh, wow. If he and others are convicted, I wish they'd go into the prison's general population, but they'll likely be placed in the protective custody unit.

The safety in a PC unit is not guaranteed. "Legit" inmates - gang members - are honor bound to beat, maim, or kill PCs. Any and all of them, given any opportunity whatsoever. The idea being that if you are PC, you did something to deserve it. Sometimes the staff screw up, and people get hurt.
posted by Xoebe at 1:07 PM on December 17, 2009


i keep typing up comments and deleting them.

i think my problem is that on one hand i do want them to end up in texas prison with the MI6 and Mexican Mafia. i want them to be beaten within an inch of their life because they are stupid white kids. i want them to meet people in jail for much less crimes than killing someone but who will be doing much longer time than they will. i want to hope that those experiences would somehow make them understand something, would change them somehow.

but at the same time, the very human part of me that these kids, these beaters, seems to be missings, tells me that it is wrong to think those things, to want those things. and the cynical part of me tells that kids who think it's ok to beat someone to death for fun can never be helped.
posted by sio42 at 1:09 PM on December 17, 2009


I sort of wish that they'd somehow get sent to prison here in Texas, where they would soon meet the Mexican Mafia. However, it's wrong to think those kinds of things.

I think it's a fairly natural desire. What they did is horrible, and we want to see them punished for it in a way that feels commsurate with their crime. As it happens, there are crimes so terrible that we cannot mete out justice in equal measure, or it becomes unjust.
posted by Astro Zombie at 1:12 PM on December 17, 2009 [26 favorites]


thank you astro zombie. i needed to hear (see?) that.
posted by sio42 at 1:15 PM on December 17, 2009


No, seriously, they believe that all rights are granted by the state.
"A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."

Nature doesn't debate its laws, write down its laws, and enforce its laws in courts. While we may rhetorically fantasize that our rights derive from our status as special creations of our God, or from the oxygen in the atmosphere, from the revolution of the Earth about its axis, or from the inherent beauty of our philosophy, the actual effect of a society granting rights to people is to create responsibilities for each other to live up to, backed up by a right to enforce, ie to go to a court and demand redress of some sort for the failure of someone to live up to the responsibilities the law puts onto them. Normally they will be made to do so, by people, and often punished, by people.

The idea that "God does that" is a dangerous one, because it comes with an implication that we need not, and worse, that a matter is settled and bears no thinking about. From the preponderance of evidence, either gods have been shirking any and all responsibilities attributed to them as long as we have had both concepts in our languages, or they don't exist, or they're not interested in us in any way similar to how we think they're interested in us.

If we want a right, we need to understand what responsibilities it creates, and we need to have an enforcement mechanism for it. Without an enforcement mechanism it's just an aspirational statement. We don't even necessarily need a reason for the right ("God wants us to!" is perfectly serviceable in the context) but to have some sensible reasoning there can only help the courts interpret and enforce it.

The quoted fascist is not completely wrong. Some civil rights are granted by US law to citizens only (for example, the right to vote in elections), and some to all humans that the law can touch (for example, the right to own one's possessions). But since both of these rights are not granted by the laws of all societies everywhere, they're not "natural", and even if they were so granted, "natural" doesn't mean anything whatsoever in the context.
posted by aeschenkarnos at 1:20 PM on December 17, 2009 [15 favorites]


I think it's a fairly natural desire. What they did is horrible, and we want to see them punished for it in a way that feels commsurate with their crime.

I know, it just feels hypocritical because it's basically the same thing as the people who want to see pedophiles get raped in prison, which pisses me off every time I see it. Still, though, that lizard-brain side of me wants to see these dudes get hacked into mole with sharpened plastic knives.
posted by DecemberBoy at 1:23 PM on December 17, 2009


"natural" doesn't mean anything whatsoever in the context.

I think you may have mistook me for Thomas Jefferson. I personally happen to accept that the concept of "rights" is an all-too-human creation, but speaking as a philosophical naturalist, the fact that we "make them up" doesn't affect their ontological status: we're part of nature, too, and our ideals along with us. Sorry for the semi-derail, just wanted to clarify.

posted by joe lisboa at 1:27 PM on December 17, 2009 [1 favorite]


I'd just like to note that this view is dramatically to the right of Ann Coulter.

But not Lou Dobbs, who said something to that effect, that the constitution only applied to citizens
posted by delmoi at 1:30 PM on December 17, 2009


The safety in a PC unit is not guaranteed. "Legit" inmates - gang members - are honor bound to beat, maim, or kill PCs. Any and all of them, given any opportunity whatsoever. The idea being that if you are PC, you did something to deserve it. Sometimes the staff screw up, and people get hurt.

Where did you get this from? Is this true? For some reason this sounds more like what happens on Oz or Nip/Tuck than in real life, but I've never been to prison, so who knows?
posted by Falconetti at 1:49 PM on December 17, 2009 [1 favorite]


Does charging the kids with a Federal hate crime mean there's no chance of someone invoking double jeopardy? At what point does their previous acquittal become a non-issue?

I'm not standing up for them. But I would hate for this to putter out and go nowhere because of a technicality.
posted by hgswell at 2:04 PM on December 17, 2009


the actual effect of a society granting rights to people is to create responsibilities for each other to live up to, backed up by a right to enforce, ie to go to a court and demand redress of some sort for the failure of someone to live up to the responsibilities the law puts onto them

The point of "God given" rights for me personally is that some rights are in some sense above the law, and that those rights are too important for any given government to decide whether or not to grant them. So even if, for example, a democratically-elected government decides to deny one of those rights to certain group of people, fighting for and protecting those rights is the right thing for an individual person to do even if it goes against the laws of the state and the collective will of the people. So it is not up to the government to place those responsibilities on the populace, but rather it is each individual's duty to uphold those principles in their daily lives even if the government does nothing to protect them.
posted by burnmp3s at 2:05 PM on December 17, 2009 [1 favorite]


Where did you get this from? Is this true? For some reason this sounds more like what happens on Oz or Nip/Tuck than in real life, but I've never been to prison, so who knows?

Sounds a bit fictional to me too. For one thing, "gang members" aren't a monolithic entity. The Aryan Brotherhood isn't going to have the same rules and codes as Nuestra Familia, or what have you.
posted by DecemberBoy at 2:12 PM on December 17, 2009


Christ, what a depressing story. What depresses me most is that I'm not at all surprised by it.
posted by rtha at 2:23 PM on December 17, 2009


sio42
"i want them to be beaten within an inch of their life because they are stupid white kids."

Not "beaten because they beat someone else to death" or "because they are brutal and cruel?" of "because its justice"?

Why add "stupid white kids"? I may be misreading your post and if so I apologize, but you're right to feel a little bad about thinking that. Them being white doesn't make them more deserving of torture. That could be the same mentality that caused them to beat a hispanic. You're better than them. Don't think like that.

Its a cliche I know, but try looking at it with the races switched...say in the case of the Damien O'rourke beating. Should those stupid black kids be tortured to pay for what they've done?

Brutal, horrible boys know no color.
posted by esereth at 2:30 PM on December 17, 2009 [2 favorites]


Brutal, horrible boys know no color.

Uh, but they know a gender?

(And if you're going to ask if I've ever seen girls brutally beating someone up ... yes, yes I have.)
posted by Jaltcoh at 2:48 PM on December 17, 2009


"At a bail hearing today in Wilkes-Barre, Judge Malachy Mannion called Shenandoah police Chief Matthew Nestor 'clearly, unequivocally a serious danger to witnesses in this case.'"

[U.S. Magistrate Judge Malachy] Mannion said the allegations depict a "vile set of activities," with Nestor's alleged crimes particularly "heinous." He said all the officers have ever known are local courts, but warned they now face justice in the federal system.


If he is found guilty, I hope they sentence him in a way as to be so horrible that other corrupt cops whisper his name in the hushed tones of someone talking about that kid that got eaten by the fucking boogieman.

Make an example out of him that shouldn't be ignored.
posted by quin at 2:52 PM on December 17, 2009 [1 favorite]


Jaltcoh: How could I forget! The people in the stories I was referencing were all boys, that's all. I know brutality is present in all genders societies species and incarnations.

But for the record "brutal, horrible boys" are mostly boys.

/semantics.
posted by esereth at 2:57 PM on December 17, 2009


So Christmas dinner in NEPA is going to be extra xenophobic this year.

Great.
posted by evidenceofabsence at 3:02 PM on December 17, 2009 [2 favorites]


Civil Rights are those bestowed on a citizen by their country. Illegal aliens in the United States are not citizens of the United States and thus do not have civil rights in this country that can be violated.
Unfortunately, this is a sentiment that I hear all too often here in Arizona.


Does charging the kids with a Federal hate crime mean there's no chance of someone invoking double jeopardy? At what point does their previous acquittal become a non-issue?


IANAL, but my understanding is that you can be charged with different crimes for the same act, but can only be charged with each crime once. They were charged with murder, assault, etc. and cannot be recharged for those again. But they have not been charged with violating the victim's civil rights until now.
posted by nestor_makhno at 3:02 PM on December 17, 2009 [2 favorites]


esereth- I'm with you on the "even if it's our first impulse, we shouldn't wish them bodily harm" thing. But, just so you know, the racial component of the O'Rourke beating appears to have been based on a speculation by his mother. As far as I can tell, there was no further evidence, and it didn't become part of the case. (Short follow-up article.)

Also, the perpetrators and victim were peers, O'Rourke wasn't beaten to death, and the police department didn't stage a coverup. The cases aren't comparable.
posted by evidenceofabsence at 3:08 PM on December 17, 2009


Yes, many cases in the 1960s South turned into federal "violating the civil rights" by killing someone, which always sounded funny, after all-white juries refused to convict them on the original state charge. Double jeopardy was rejected as an argument several times, if I recall correctly.
posted by etaoin at 3:14 PM on December 17, 2009



I wasn't comparing the cases, as you said they are quite different. Only exploring the motivation of the poster who specified the perpetrators should be beaten because they were "stupid white boys." Identifying their race as a reason why you hate them extra...well that's the source of the whole problem!

As for race not being a component of the O'Rourke case, maybe so. All I can say is that there would be no doubt in my mind race was an issue if the video showed seven white boys beating a black.

And...lets not forget, race almost had nothing to do with the Ramirez case, either, if the cover-up had gone through. It seems to depend on how the reporters want to see it.
posted by esereth at 3:25 PM on December 17, 2009


I think it's a fairly natural desire. What they did is horrible, and we want to see them punished for it in a way that feels commsurate with their crime.

Yeah, I'm having that kind of a moment, too. I'm not proud of myself for it or anything, but all I keep thinking about is how racists talk about how minorities move into neighborhoods and roam in packs, attacking whites. And how, in this case, I really wish there were a spanish gang who decided to meet out the justice the courts refused to, or rather vengeance in place of justice. It's just wrong on every count to wish for this, and heartening to think that that has basically never happened despite the deepest fears of racists.

But I can't help but wish for horrible horrible things to happen to these guys. I know it's not right, but I keep wishing it would happen, despite my better judgment.
posted by shmegegge at 3:29 PM on December 17, 2009


simple assault my ass. you don't kill someone while "simply" assaulting them.

Don't you guys have "felony murders" in your legal system?

A felony murder is a charge that can be laid if, while you (and your accomplices, if applicable) are committing a felony, somebody dies. Thus, the driver of the getaway car can be charged with felony murder if one of the gang within the bank kills somebody. Another example might be if you committed arson & somebody happened to die as a result.

The idea is that it removes the element of intentionality - the prosecution only needs to prove that you intended to commit the felony, not that you intended to kill the victim.
posted by UbuRoivas at 4:42 PM on December 17, 2009




All I can say is that there would be no doubt in my mind race was an issue if the video showed seven white boys beating a black.

Then perhaps you need to broaden your mind.
posted by Kraftmatic Adjustable Cheese at 5:15 PM on December 17, 2009


and heartening to think that that has basically never happened despite the deepest fears of racists.

You obviously have never heard of the Zebra Murders: 16 dead, 8 to 10 wounded in two waves of race-based killings by a death squad within the Nation of Islam.
posted by Kraftmatic Adjustable Cheese at 5:18 PM on December 17, 2009


sio42: simple assault my ass. you don't kill someone while "simply" assaulting them.

Sure you can. Plenty of people have died from regular fistfights, and I can think of a few cases where people have died from a single punch. Fighting is just more dangerous than people realize.
posted by Mitrovarr at 5:38 PM on December 17, 2009


Yes, many cases in the 1960s South turned into federal "violating the civil rights" by killing someone, which always sounded funny, after all-white juries refused to convict them on the original state charge.

You don't have to go back nearly that far. Federal civil rights charges are what they got the cops who beat Rodney King with, after the white Simi Valley jury acquitted them on state charges.
posted by Justinian at 5:45 PM on December 17, 2009


kraftmatic: You're right. I was wrong to say, "my mind." I meant "the public perception." Semantics again. But your suave one-liner was a delicious balance of snark and smug and I am honored to have set you up to say it.
posted by esereth at 5:51 PM on December 17, 2009


No justice, no peace.
posted by fourcheesemac at 6:33 PM on December 17, 2009


Does everybody realize that this is the same place where judges railroaded juveniles into prison for their own monetary profit?

Nice justice system you've got, PA.
posted by NortonDC at 6:33 PM on December 17, 2009


Nice justice system you've got, PA.

That's why those of us just north of the border refer to it as "Pennsyltucky."

I've been to Kentucky a couple times, and since, I feel like I owe the Bluegrass State an apology.
posted by Bathtub Bobsled at 6:52 PM on December 17, 2009


Does everybody realize that this is the same place where judges railroaded juveniles into prison for their own monetary profit?

Previous MeFi FPP: Here Come 'Da Judge.
posted by ericb at 9:21 PM on December 17, 2009


This is exactly why we need hate crime laws. The local yahoos saw nothing wrong with beating a Mexican to death, so the case needs to go to a higher court. Federal hate crime laws would allow that.
posted by Jimmy Havok at 10:04 PM on December 17, 2009


simple assault my ass. you don't kill someone while "simply" assaulting them.

Falling from a standing position and whacking your head is something that can kill you. You'd have to be a bit unlucky, but it certainly happens. A trip that causes you to plant the back of your head on concrete, especially if you don't get your hands down to break your fall, can be quite fatal indeed.

That said, I'd expect in New Zealand that someone would be charged with and convicted of manslaughter for that, since that's pretty much what that law is there for (killing someone accidentally).
posted by rodgerd at 10:38 PM on December 17, 2009


"Civil Rights are those bestowed on a citizen by their country. Illegal aliens in the United States are not citizens of the United States and thus do not have civil rights in this country that can be violated. "

Man what a (box of) nail(s) in the coffin of tourism that would be if it were true.
posted by Mitheral at 12:08 AM on December 18, 2009 [1 favorite]


"Civil Rights are those bestowed on a citizen by their country. Illegal aliens in the United States are not citizens of the United States and thus do not have civil rights in this country that can be violated. "

Thank you for writing that Mr Internet Bigot. However, I regret to inform you that research conducted by the Department for the Elimination of Gross Stupidity has recently discovered that a hospital error meant that the afterbirth was mistakenly raised by your parents.

Unfortunately this means that we will be visiting your home within the next 7 days to place you in a secure biological contaminant facility.

You are entitled to engage I lawyer but I would caution you that as afterbirth is not yet recognised for citizenship in the United States of America, you have no actual civil rights.

Sincerely,
posted by MuffinMan at 1:52 AM on December 18, 2009 [1 favorite]


LOCAL PUBLIC RADIO AFFILIATE WITF.ORG has a show called Smart Talk which is a call in radio show. Today the topic is this case. It runs 9-10 a.m. EST, but is also available as a podcast afterwards. I don't know if he is having guests or not, but the moderator is pretty good at his job.

Also, I am not directly from Shenendoah, but rather the South Central PA area in general. Someone had sent me a memail and I just wanted to clarify that. But it's still been on WITF news here pretty regularly. I actually haven't seen it on the local news much, but I don't watch it with the regularity with which I listen to NPR/WITF.
posted by sio42 at 5:41 AM on December 18, 2009


Nice justice system you've got, PA.

The Inquirer just did a pretty epic series on the state of criminal justice in Philly. I wrote up some comments on that series based on my experience working in the criminal justice system as a social worker for the past year.
posted by The Straightener at 6:25 AM on December 18, 2009


Falling from a standing position and whacking your head is something that can kill you. You'd have to be a bit unlucky, but it certainly happens.

Yep. Recent case here in Massachusetts:
Man Dies After Fight Over Barking Dog.
A trip that causes you to plant the back of your head on concrete, especially if you don't get your hands down to break your fall, can be quite fatal indeed.

Exactly. Cases in point:
Publisher Katharine Graham.

Cardiologist and diet doctor Robert Atkins.
posted by ericb at 6:44 AM on December 18, 2009


LOCAL PUBLIC RADIO AFFILIATE WITF.ORG

I read that as WTF.ORG and thought man, that's a perfect name for a radio station, especially when reporting on a story like this one.
posted by rtha at 8:24 AM on December 18, 2009


Just to clarify my stupid white boys remark....I meant that they be on the receiving end of violence due only to their race.

That was back where we were discussing what we wish would happen to them and how that feels hypocritical.
posted by sio42 at 8:57 AM on December 18, 2009


Illegal aliens in the United States are not citizens of the United States and thus do not have civil rights in this country that can be violated.

Let's see:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated... No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...the accused shall enjoy the right to a speedy and public trial...
I don't see anything about "citizens" there.
posted by kirkaracha at 9:45 AM on December 18, 2009


Those Founding Fathers were some smart motherfuckers, but they really screwed the pooch on this whole enumerated rights thing. The Declaration of Independence's says that "Life, Liberty and the pursuit of Happiness" are among the unalienable rights that everyone has, and they're not provided by the government.

The Bill of Rights was added to the Constitution because the Anti-Federalists opposed ratification unless it contained a list of rights. In Federalist 84, Alexander Hamilton said a bill of rights was unnecessary and potentially dangerous:
Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations...I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?
The Ninth Amendment says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." When James Madison introduced the Bill of Rights to Congress, he said that the Ninth Amendment would cover rights that aren't explicitly listed in the Constitution:
It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.
In other words, people are going to incorrectly say that the government is assigned rights that aren't listed. It's clear to me from the discussion and arguments of the guys who wrote the Constitution that we have more rights that are listed there.

Incorrect: You don't have a right to privacy because it's not listed in the Constitution.

Correct: You do have a right to privacy because it's not listed in the Constitution.
posted by kirkaracha at 10:22 AM on December 18, 2009


Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

Yeah, "in strictness", not in reality though.
posted by atrazine at 6:49 AM on December 19, 2009


kirkaracha,

The problem is that a "right" can be constructed that would be violated by virtually every government action.

and, let's face it. The US has a "right to privacy" because the Supreme Court said so. Now, I think that a right to privacy is important and should be protected, but it doesn't exist because it's not listed in the constitution. IIRC (and I am neither a lawyer nor an American) is that it is said to exist because the bill of rights provides for a "penumbra of privacy", in other words it is the logical consequence of rights which are explicitly enumerated.
posted by atrazine at 6:54 AM on December 19, 2009


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