What a lot of people don't understand is that the Bill of Rights, which protect people's rights and limit the power of government, originally just applied to the national government. It wasn't until the 14th Amendment was ratified in 1868, that federal courts began the practice of selective incorporation of the Bill of Rights, i.e. applying the Bill of Rights to the states on a case by case basis. Virtually all the protections in the Bill of Rights have now been applied to the states, the most recent being the 2nd Amendment right to keep and bear arms.
It should be an interesting discussion. My co-host, Mark Small, has a very interesting view of some of the amendments that make up the Bill of Rights. Recently while in his office, I came across Mark's edited view of the Bill of Rights, and thought I would share the revisions he made to some of the amendments:
Congress shall make no law
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Unelected federal judges shall have the right enforce this provision by "finding" various rights people have but which elected legislatures have not yet been able to locate. Oh, and people shall have a "right of privacy" because, well that just sounds like something that should be in the Constitution.
This would have been funnier if Mark's views on all the Bill of Rights were wrong. But I can't knock Mark on his support of free speech or his support of the criminal law protections which embody most of the Bill of Rights.
I agree with there being a 'right to privacy'. Felix Frankfurter said something like, the right to be left alone is the most important right. This only seems to apply to abortion however, not to gun possession.
The 10th Amendment has been de facto repealed, which is a big story never told.
It was funny. Today on the show we got to the 10th Amendment, but we were out of time. I mentioned that that didn't matter that Supreme Court defacto repealed it anyway, said it was a mere "truism." We all had a big laugh.
I don't agree with a free floating "right to privacy" that a judge can apply whenever he or she wants. There are certainly elements of privacy protection in the constitution, such as the protection from unreasonable search and seizure. That doesn't mean a general right to privacy should be created in order to be applied at the whim of judges.
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