Raich originally made arguments based on three constitutional amendments, including the 9th. How can you say the cause of action wasn't linked?
what u talkin bout rights?
- Thread starter DNAprotection
- Start date
The district court considered the 9th amendment argument in Raich and concluded that the federal government was within its other enumerated powers. That is the law. If an action is within the government's other enumerated powers, the supposed right in question cannot possibly be reserved to the people under the 9th amendment.
Birth control and abortion were successfully protected with the 9th amendment by the courts because they concluded that the government's other enumerated powers did not entitle them to interfere.
DNAprotection
Well-Known Member
no what i said was raich did not construct his 9th amen in the way i am suggesting and so it was not the 9th amen case i am recommending...
i was 'on the lamb' at the time (in 2000) and so was unable to file, thats when i passed the baton (the idea for the case) off to robert and though he did use some of the direction such as the commerce argument, he limited his approach when constructing the 9th and 10th arguments and when i was finally able to file myself in 2003-04 the fed judges ruling on the 9th in no way resembles what u have stated here:
"If an action is within the government's other enumerated powers, the supposed right in question cannot possibly be reserved to the people under the 9th amendment."
in my ruling the judge was very specific about not just mine but any cause of action constructed to depend on the 9th amen and it was basically what i have already stated:
the 9th has been adjudicated effectively into an unreachable place for any plaintiff because fed judges have held that it only exists for judges to use as a measuring tool for interpenetrating the rest of the constitution in the adjudication of cases but not there to be reached for in constructing a cause of action etc..
are u sure the 9th wasnt just used by judges in the abortion issue etc to intemperate such rights and not used by the plaintiff to construct a cause of action, though i have not read those cases i find it impossible to square such a statement with the more recent ruling i am familiar with in my own case???
schuylaar is atheist.and such (in part) is precisely why the type of 'human rights' litigation going to the 9th amenim suggesting is so vital at this point imo...
there is also a desperate need to revisit the 1st amen and redefine the key word 'religion' to equate more directly to an 'individuals' conscience rather than a persons 'choice' to join a club etc...such work was beginning during the vietnam era and was hard fought and won in effort to extend the military 'conscientious objectors' status to all folks equally even if not consigned to an 'organized religion' etc or even if they did not believe in 'god' etc...but that work ended there for the most part and has not been built upon unfortunately so basically outside of the military your 'conscience' holds little or no weight in court because it has no reach to the 1st amendment etc...
http://atheism.about.com/library/decisions/religion/bl_l_WelshUS.htm
DNAprotection
Well-Known Member
and imo schuylaar is entitled to equal reach (14th) to the 1st amendment as an individual with your own conscience that tells u whats right and wrong and how to live etc just as long as those choices to not abridge another's to do the same and the courts have developed 'standards' to try and assure that such does not happen, so why then should only folks in 'clubs' be the only ones to enjoy their human rights protected by the 1st amen and the word 'religion'? cuz for the most part thats where we r at on that...
Mr. Court Expert, you must keep in mind that the district and circuit courts are free to disagree on the law. Two district courts can make totally different rulings, both of them in force in the districts; the circuit courts can make totally different rulings, all of them in force in the circuits. Unless a circuit court sets a circuit-wide precedent or the supreme court sets a nationwide precedent, the courts are free to disagree about what the law means. We just saw this with gay marriage. The district court responsible for Utah declared that prohibition of gay marriage was unconstitutional, which allowed gay marriage in Utah to go forward. That didn't make gay marriage legal everywhere else where it is presently illegal.
The underlined is certainly a view of the 9th amendment that is subscribed to by some judges. Not all of them. Griswold v. Connecticut opened the floodgates for 9th amendment arguments, but almost all of them were flatly rejected.
DNAprotection
Well-Known Member
first of all i never claimed to be an 'expert' in anything let alone the courts lol, i am just another fish swimming in this pound as u r...
secondly i totally agree with your assessment and such goes to my point that your original statement is flawed:
its simply not 'certain' at all...
Except it is certain. I agree with you the 9th Amendment is a mystery. The supreme court has vaguely hinted that a couple of rights not explicitly mentioned in the constitution may exist under the 9th Amendment. Though the decisions ultimately rested on other constitutional bases, the court didn't deny the possibility that findings under the 9th might be appropriate. The authority is very weak, which leaves a lot of freedom for the various courts to adopt their own interpretations. That's what they do. Some courts immediately dismiss the argument and others give it due consideration.
People have already argued that a right exists under the 9th Amendment and they have failed because the constitutionality of congress' control of drugs is otherwise undisputed. If the war on drugs is constitutional under congress' existing powers, then it cannot possibly be violating some right reserved to the people. This is why I started with commerce power. That congress has the right to impose its will even on intrastate commerce--even on crops grown for personal use--is defined in supreme court precedent that cannot be ignored by other courts.
If congress has the authority under the commerce clause to dictate that you not grow wheat, even if it's for your own personal use and never touches interstate commerce, it surely can tell you that you cannot grow marijuana, whatever the circumstances. If the validity of the former is beyond dispute, the latter surely is too. Stare decisis compels all the courts to adhere to that well-defined precedent, and that is why the 9th Amendment argument is guaranteed to fail. To attack this power of congress is to attack its commerce power, which is insulated almost beyond conversation outside of the supreme court.
DNAprotection
Well-Known Member
ok now we r getting somewhere
but as u can probably guess i would take issue with the last paragraph until my last dying breath...not that i disagree with your interpretation of the state of the law in this area, its that i disagree with allowing such case law to b our guiding light into the future and imo your just 'washing your hands' whenever u make statements like this:
"the 9th Amendment argument is guaranteed to fail"
imo the only thing guaranteed in this life is that we will all eventually die some day
and imo what your really saying is that u surrender...
I have surrendered. I used to believe congress' commerce power was too expansive, but now I've accepted that in the modern era it is beyond contest. I accept that the courts are the interpreters of the constitution and that they have rendered their judgment about what congress may do. In the modern era, I think it makes sense, and the courts' nearly impenetrable consensus that it makes sense is forever beyond reproach, perhaps with the exception of some new future reach by congress.ok now we r getting somewhere
but as u can probably guess i would take issue with the last paragraph until my last dying breath...not that i disagree with your interpretation of the state of the law in this area, its that i disagree with allowing such case law to b our guiding light into the future and imo your just 'washing your hands' whenever u make statements like this:
"the 9th Amendment argument is guaranteed to fail"
imo the only thing guaranteed in this life is that we will all eventually die some day
and imo what your really saying is that u surrender...
Separate but equal was fundamentally wrong because it permitted people to be unequally treated, and anything like that is undoubtedly going to be reversed, eventually. There is no right or wrong answer about congress' commerce power, no necessity that it ever be reined in again. Ultimately it is convenient in the modern era to read the constitution to give congress substantial power under the commerce clause, and that convenience will not now be defeated.
DNAprotection
Well-Known Member
first off tokeprep i just want 2make sure u know that i absolutely appreciate our conversation here and your willingness to take the time to express your understanding in this area even if our conclusions about what where and how we go forward from here are worlds apart
even when considering the example u use above 'discrimination' is the operative word (though u did not use that word)...but the word does mean something in court and was used just recently again in the 'same sex' issues that have been litigated...so from your perspective why not then at least file a discrimination type suit rather than surrender to such?
obviously that is not my choice for course of action, but why wouldnt it be yours?
my choice would b along these line that i wrote for another thread:
"in at least 9 fed district courts from coast2coast and north2south we simultaneously file for injunctive relief based on the poll question turned into a statement and a cause of action linked to the 9th amen...
such would force media coverage if done right and then possibly shift the public 'debate' or question from being simply about 'legalization' through legislation/regulation or not and is there 'a right to grow cannabis' or not to the more appropriate question is there 'a right to grow plants' etc...and imo the majority of the public would vote as the majority has here so far...even more than the 55% polling for 'legalization' at the moment...
such cases would also be written up and hopefully spoken about as human rights cases which would also hopefully penetrate and morph the current frame work of the status quot public debate etc...
the litigation would hopefully force more then summary dismissals but even if that were the case it would open many peoples eyes to exactly where we r at in these times etc..
of course i've hardly scratched the surface of what such an effort would look like etc, but its totally doable...
further, it could be done with the folks here at RIU, theres plenty of talent creativity and passion etc researchers who live to prove others wrong etc lol...just saying even sock puppets could do this deal if need be, it just needs to get done b4 our standing becomes any more eroded through legislation/regulation etc..."
I would choose this path for many reasons but one of the most outstanding of those would be the potential for re-framing the public debate surrounding this issue by simply re-framing the question being asked in court etc...
DNAprotection
Well-Known Member
ps...heres the bit on the Wickard v Filburn case i was referring to...
http://www.oyez.org/cases/1940-1949/1942/1942_59/
"Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted thewheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use".
in other words filburn must of signed a contractual agreement with gov and im saying that has an impact on his 'rights'...
in other words u have human rights until u agree (contractually) to something that may burden those rights...
but i havent reread the case and its been a decade since i read it lol...
http://www.oyez.org/cases/1940-1949/1942/1942_59/
"Filburn was a small farmer in Ohio. He was given a wheat acreage allotment of 11.1 acres under a Department of Agriculture directive which authorized the government to set production quotas for wheat. Filburn harvested nearly 12 acres of wheat above his allotment. He claimed that he wanted thewheat for use on his farm, including feed for his poultry and livestock. Fiburn was penalized. He argued that the excess wheat was unrelated to commerce since he grew it for his own use".
in other words filburn must of signed a contractual agreement with gov and im saying that has an impact on his 'rights'...
in other words u have human rights until u agree (contractually) to something that may burden those rights...
but i havent reread the case and its been a decade since i read it lol...
DNAprotection
Well-Known Member
tokeprep here is more to the point about Wickard v Filburn :
"In July 1940, pursuant to the Agricultural Adjustment Act (AAA) of 1938, Filburn's 1941 allotment was established at 11.1 acres (4.5 ha) and a normal yield of 20.1 bushels of wheat per acre. Filburn was given notice of the allotment in July 1940 before the Fall planting of his 1941 crop of wheat, and again in July 1941, before it was harvested. Despite these notices, Filburn planted 23 acres (9.3 ha) and harvested 239 bushels from his 11.9 acres (4.8 ha) of excess area.[SUP][2][/SUP]
The Federal District Court ruled in favor of Filburn. The Act required an affirmative vote of farmers by plebiscite to implement the quota. Much of the District Court decision related to the way in which the Secretary of Agriculture had campaigned for passage: The District Court had held that the Secretary's comments were improper. The government then appealed to the Supreme Court of the United States, which called the District Court's holding against the campaign methods which led to passage of the quota by farmers a "manifest error." The court then went on to uphold the Act under the Interstate Commerce Clause."
the whole deal hinged first on a vote of the people = contract...
secondly filburn was issued notice and yet proceeded to violate the law...
if filburn felt harmed or in eminent danger of harm from the Act then he should have issued notice back and summoned the court proceedings as a plaintiff...he instead became the defendant which automatically takes on a different dynamic etc...
in this case all interested parties contractually gave up any human right in this area when they voted in the Act...
"In July 1940, pursuant to the Agricultural Adjustment Act (AAA) of 1938, Filburn's 1941 allotment was established at 11.1 acres (4.5 ha) and a normal yield of 20.1 bushels of wheat per acre. Filburn was given notice of the allotment in July 1940 before the Fall planting of his 1941 crop of wheat, and again in July 1941, before it was harvested. Despite these notices, Filburn planted 23 acres (9.3 ha) and harvested 239 bushels from his 11.9 acres (4.8 ha) of excess area.[SUP][2][/SUP]
The Federal District Court ruled in favor of Filburn. The Act required an affirmative vote of farmers by plebiscite to implement the quota. Much of the District Court decision related to the way in which the Secretary of Agriculture had campaigned for passage: The District Court had held that the Secretary's comments were improper. The government then appealed to the Supreme Court of the United States, which called the District Court's holding against the campaign methods which led to passage of the quota by farmers a "manifest error." The court then went on to uphold the Act under the Interstate Commerce Clause."
the whole deal hinged first on a vote of the people = contract...
secondly filburn was issued notice and yet proceeded to violate the law...
if filburn felt harmed or in eminent danger of harm from the Act then he should have issued notice back and summoned the court proceedings as a plaintiff...he instead became the defendant which automatically takes on a different dynamic etc...
in this case all interested parties contractually gave up any human right in this area when they voted in the Act...
farmasensist
Well-Known Member
http://www.thedailychronic.net/2014/27002/ninth-circuit-court-appeals-decide-fundamental-right-use-cannabis-medicine/
It looks like there might be a constitutional or human right. Unfortunately this basic right will be geographically limited to legal states on the west coast.
It looks like there might be a constitutional or human right. Unfortunately this basic right will be geographically limited to legal states on the west coast.
farmasensist
Well-Known Member
http://www.thedailychronic.net/2014/27020/ca-fresno-county-bans-medical-marijuana-growing/
Except for fresco county. I guess it is a constitution free zone and the citizens are not human and have no rights because five people said so.
Except for fresco county. I guess it is a constitution free zone and the citizens are not human and have no rights because five people said so.
DNAprotection
Well-Known Member
have you read the case yet?
i dont have time at the moment but much thanks for posting this!
farmasensist
Well-Known Member
I don't know much about law but it looks like the state legal places that got raided by the feds are going to the 9th cicuit supreme court to get protection from the feds.
DNAprotection
Well-Known Member
i'm still tryin to get time to check it out but it sounds like its already been through the district court and is now going to the 9th circuit court of appeals?
news papers/media have written/reported on different actions i've been involved with and i can tell ya from my personal experience they often miss the most important stuff...
its critical how a case is written, as in ultimately what questions are before the court, so its hard to get a true handle on the meaning of a case unless specifically familiar with the causes of action etc...
you are the law imo...as they say 'know thyself' etc...
lawyers are desperate to complicate the 'law' because (in part) their jobs depend on it, but their dirty lil secret is that its really not all that complicated...
the whole key to 'understanding' 'law' imo really is to understand the definitions of words and literally apply those definitions to the context of where the words show up etc...and its not unlike math in many ways...and most important it all begins and ends with 'human rights' and how we exercise those rights amongst each other without extinguishing those rights for each other etc and of course all such deliberations are an examination of whatever contracts are relevant to the proceedings be that the constitution or a statute or an agreement one might make with a cell phone co etc...
canndo
Well-Known Member
And so my next door neighbor puts up a coal fired generaton plant. It stinks and is not good for my children - shall I too speak with my feet and leave my own land?
DNAprotection
Well-Known Member
thats where the concept of 'the commons' comes in
com·mons
ˈkämənz/
noun
plural noun: the Commons
- 1.
a dining hall in a residential school or college.
- 2.
land or resources belonging to or affecting the whole of a community.
its a simple equation really, your 'rights' begin to erode wherever they begin to intrude on other folks 'rights'...