Constitutional Amendments should never, ever, ever, ever

[Rainbowreflect]

be used to take away anyone's rights, EVER.
Just a thought!

[PaganPreacher]

1. Nice sentiment....

anything more specific?

The Pagan Preacher
I don't turn the other cheek.

[Rainbowreflect]

4. Just had to be said.

Why don't more people understand this very simple concept?

[MadAsHellNewYorker]

2. Right on!

they are supposed to protect minority groups from the tyranny of the majority!

[tk2kewl]

3. Pretty much a no-brainier as far as I am concerned.

Bill of Rights was there to protect rights, not grant and deny rights. The idea was that the people have ALL the rights and grant some power to government to create laws. Bill of Rights was added to Constitution to ensure that the government didn't infringe on the peoples rights.

[PaganPreacher]

7. You're absolutely right....

the Bill of Rights are intended to enumerate our rights.

However, the amendments from 11 forward are not part of the Bill of Rights. Several of those amendments were written and passed with the express purpose of limiting the freedom of some or all Americans.

For example, we could talk about the 11th Amendment, which prohibits citizens of one state from filing suit against another state. That appears to be a restriction on freedom.

Or, the 14th Amendment, that specifically excludes Indians as citizens for the purposes of apportioning US representatives. "Disenfranchisement," anyone?

We could talk about the 18th Amendment, which restricted the right of Americans to buy, sell, or consume liquor (which was previously legal, and taxed, by the states.) The 18th Amendment was a restriction on the rights noted in the 9th and 10th Amendments.

The 22nd Amendment denies a person the ability to be elected President three times. A restriction on rights? I think so.

So, in what context shall we discuss this?

The Pagan Preacher
I don't turn the other cheek.

[eallen]

8. Listing those that take away rights, don't forget the 16th amendment!

[PaganPreacher]

10. I see that you are a civil libertarian....

me, too!

Quite right about the 16th. I should have included it.

The Pagan Preacher
I don't turn the other cheek.

[mcscajun]

5. Nope...doesn't mean we never did it, though.

Prohibition.

Repeal.

Be afraid.

It can happen here.

[dr.strangelove]

6. Sure it should.

There are rights that have been limited or eliminated via an amendment to the Constitution. In 1781, US citizens in at least 10 of the 13 states had the right to own an African as a piece of property. We had to create the 13th and 14th amendments to take away a citizen's right to own slaves.

Prior to 1951 a person had the right to be elected POTUS as many times as they could. Now we limit the right to be elected POTUS to two terms.

Are there any rights that you would choose to take away today.

One area I would support limiting or removing an individual's rights would be an amendment eliminating 1st amendment protection for Hate Speech.

[eallen]

9. Being a civil libertarian makes me a 1st amendment absolutist...

My problem with the wall between church and state is that it isn't high enough. Rather than restricting free speech, I would extend it. Every law regarding obscenity should be wiped off the books. Do slander and libel laws really do any good?

[dr.strangelove]

11. Yes they do!

Taking an action with the intent to harm another person should be punished. I don't care if you are using words or your fists. I also don't care if the words are spoken or written.

If I called an person's employer with damaging untrue information with the intent to end a person's career, I expect a law to passed to protect the victim of the slander. I expect that law to stand up.

If I went to a person's employer with photo-shopped pictures of that person engaging in child molestation with the intent to get them fired, I expect a law to passed to protect the victim of the defamation/libel. I expect that law to stand up.

I also think removing obscenity laws would allow very dangerous activities to be published and promoted. If child porn is made overseas, what could prevent the sale of it in this country if not for the obscenity laws. If the product's creation is not subject to our criminal laws banning its creation, then the sale of it, which I think carries out the same harm, should be stopped.

All speech should not be free. Justice Holmes' "clear and present danger" approach seems fine. If you don't oppose the "substantive evil" that Congress has a right to prevent (such as child abuse/rape or intending to physically injure another person), than the use of words or other speech to accomplish those evils should also be preventable.

If you are not opposed to the "evils" than that is another issue, but I have yet to meet another person who thinks child abuse/rape or assault and battery should be allowed to go free.

Why not prevent the words when the intent is to cause the evil?
For example) The government can't stop you from swinging a baseball bat on your front lawn on a typical spring day. They can if there is a person being bludgeoned on the end of your bat. Why can't we do the same with speech? Why is the right to speech more important that the rights to property or due process (which are the rights involved in swinging a bat on your lawn)?

[eallen]

12. I believe speech is more fundamental than swinging a bat, because....

Free thought and free speech are prerequisite to both democracy and free society. Swinging a bat is not. Our essential freedoms are much more endangered when the government starts drawing boundaries around speech than around bats.

In your examples about slander and libel, you consider neither the cost of bringing suit, nor the futility of doing so when the mischief maker lacks significant assets. In this country, slander and libel are torts. You cannot jail someone for them. You can only wrangle a civil settlement. How well do you think that works, against the issues that worry you? Maybe it's better to create a skeptical public, that does not so easily believe everything that is said or printed?

Child porn is the toughest issue. If I were to concede that it should be illegal, when its production involves children, would you concede to the elimination of other obscenity laws?

[dr.strangelove]

13. What came first the chicken or the freedom?

You bring up one very good point that I want to address in detail, but let me hit a few smaller issues first.

With regard to slander and libel, I only used the examples I did to respond to your suggestion that slander and libel laws never do any good. I think they have done a world of good. I know a few people who have brought successful employment related defamation suits against school boards.

You raise the cost of bringing a suit and the futility of doing so when the tort feasor lacks assets. As an attorney, one of the early parts of representing a client is considering how I will be paid, so please don't profess that I consider neither of these things when I in fact consider them dozens of times per week.

When the tortfeasor lacks assets, I often am left with little chance to recover for my client, so I assist the client in getting help in the criminal field. Slander and Libel are indeed crimes in New York. I don;t know what state you are in, but I would think there is a criminal defamation statute in your state/country as well. Two times I can recall assisting a client in getting a person arrested and questioned by the police. Whether the DA will charge is a different story, but if you have a lawyer that went to law school with a young ADA that prosecutes misdemeanors, it can help (so ask a lawyer for help, that first call is often free)

What I can do is help obtain a restraining order to prevent the person from making further publications/comments. I can get a restraining order in place for $55 plus about 15 minutes of my time and a trip to the court house. I would probably charge $75 - $100 for this service. If the civil restraining order is violated, you certainly can jail the tortfeasor (I have had it done under at least 5 circumstances though none were defamation issues).

I do not agree that it is better to create a skeptical public. It is the public's obligation to prevent people from harming others. The prevention of indiscriminate harm is fundamental to democracy. I don't think the goal of any form of government is to encourage people not to believe things. That thought appears to weaken your argument that free thought and free speech are prerequisite to both democracy and free society. If you encourage people to be skeptical about what others say and write, how can you expect speech to be an effective tool for the betterment of society. If no one believes what they read or hear, how can free speech be an fundamental to democracy as you say. I agree that it is, which is why I believe that you must be able to prevent people from using speech to harm.

I also argue that swinging a bat is indeed fundamental to democracy and freedom. The swinging of a bat was merely an example of a living activity. Typing on my computer, driving to the store, taking a subway to work and making love to my wife are all examples of the activities that are fundamental to democracy and freedom. They are the product of democracy and freedom.

How can you say that essential freedoms are more endangered when the government limits boundaries around speech than around life. Speech is just one of the main fundamental freedoms. The bat falls under the freedom to own and use your own property. If the government censored every computer and internet connection, our use of free speech would be limited by the governments limitation on our rights to property.

As for child porn, I don;t think it is a tough issue at all. Speech is just a fundamental right. Fundamental rights are just the most important rights we enjoy. The very idea of any limitation on a fundamental right must be carefully examined. That does not mean it can never be limited. The test established and employed for over 150 years seems very good to me. To limit a fundamental right, the limitation must undergo strict scrutiny. The law must be to protect the very highest of public interests and the limitation must be narrowly drafted so it just protects the public interest, and does not limit any valid public practices. The rape or sexual abuse of minors falls into the category of highest of public interests. If you don't, I think we should end our debate b/c we probably don;t come from the place and can't talk about this. If you do agree that the rape or sexual abuse of minors falls into the category of highest of public interests, then any limitation on this activity, if it limits free speech, must be narrowly tailored only to accomplish the public good. This is why laws restricting the use of computers in libraries fail, but laws allows jail time for people use purchase or possess child porn are valid.

If you are not going to concede that child porn (which the production of which must involve minors to be classified as child porn, the production of porn meant to mimic child porn by using adults who look like minors is not child porn. I think it is a strange fetish, but it is certainly legal in New York.), than we really should end this conversation.

What other obscenity laws are you talking about? There are many obscenity laws I would support and many I would reject.

[eallen]

14. Some agreement. Some disagreement....

On the obscenity issue, I have no argument to make against the established principle of strict scrutiny, and I agree that protecting minors from sexual abuse is in the highest public interest. But a few quick points. (1) There are general obscenity laws are not restricted to child porn. Ashcroft is using these to shut down adult video stores. Google "Ashcroft, war porn," for some stories on this. (2) It was either COPA I or COPA II that defined child porn in such a way that it did not have to picture actual children, but merely feature characters depicted to appear as if they were underage. The goal was to outlaw porn made to appeal to pederasts, whether or not minors actually were involved in its production, or in the case of computer genereated imagery, even if no actual people people were depicted at all! If I recall correctly, the Supreme Court struck that aspect down. It's scary to think that such law, read expansively, would ban both Vaughn Bode cartoons and Anne Rice's porn novels.

As a civil libertarian, I oppose both Ashcroft's war on (non-child) porn, and also a law so lax that it defines child pornography on the basis of what appears to be depicted, rather than on how it in fact was actually produced. Perhaps we are in agreement there? Or at least, not too far apart?

Where I most disagree with what you wrote is this: "If you encourage people to be skeptical about what others say and write, how can you expect speech to be an effective tool for the betterment of society." I would assert precisely the opposite. If you do not encourage people to be skeptical about what other say and write, how can you expect speech to be an effective tool for the betterment of society? This issue was core to early notions of free speech. It has always been the argument of governments that want to restrict speech, that society is benefitted by outlawing false and pernicious ideas. The rejoinder, since colonial times, has been that in a free atmosphere, good ideas will survive and grow strong arguments around them, while the false and pernicious ones will be exposed. But that only happens to the extent that people approach what they read and hear with a skeptical eye.

[Darranar]

15. No, it was protecting a right...

namely, the right to freedom....

[Deja Q]

16. We already don't have the right to marry. (we as homosexuals)

Like African Americans once were, we homosexuals are second class citizens. Even moreso than the non-wealthy classes in our silent caste system.