Why Scalia worries me in D.C vs. Heller...

[Unregistered]

So would you agree that if an interrogation technique does not cause physical damage, that it is not torture?

 

[STAGE 2]

So would you agree that if an interrogation technique does not cause physical damage, that it is not torture?

There are plenty of interrogation techniques that are not torture that are not constitutional. What's the big deal?

 

[nobody_special]

Not in 1789 it didn't.

Yes, in 1789 it did.

You are going to sit there and tell me that women didn't have the right to vote, but when the framers used the word "he" they intended to include ladies to hold positions in government as well as the office of chief executive. I think not.

Frankly, I think it's likely they didn't consider it one way or another; however, if you read Article II, you'll see that what they do specify is that the President must be a natural-born Citizen... and women have always been granted citizenship.

 

[Unregistered]

There are plenty of interrogation techniques that are not torture that are not constitutional. What's the big deal?

I am just trying to find out what torture is, and don't understand why no one will give a straight answer.

Can torture occur in the absence of physical injury?

 

[Archie]

I am just trying to find out what torture is, and don't understand why no one will give a straight answer.

If you wanted a straight answer, you'd have alread found it.

 

[Musketeer]

So remove the threat of self incrimination and apply this to a US citizen inside the USA. For an extreme hypothetical let's say the gov't considers the firearms they believe you never turned in to be a clear danger to the public. It is most important to them that they find them, even at the expense of letting you off the hook prosecution wise.

Can they torture you then for information on where they are if it has nothing to do with

1. Punishment?
2. Prosecuting you?

I am sorry but it should be pretty clear the gov't has no right, since it was never given one in the COTUS that I see, to use torture to gain information simply because it is unrelated to a punishment of prosecution of you.

When you begin to argue in any fashion that torture can be allowed under the COTUS I become worried. Some here seem to think they have found some wiggle room where it is allowed. I am worried that the path that leads us to find it acceptable for use on our "enemies" may all too easily then be applied to those "enemies" within our own borders and who happen to have US citizenship.

 

[STAGE 2]

Yes, in 1789 it did.

Baloney. You're going to tell me they intended women to be able to be president when they denied women the right to vote?

I am just trying to find out what torture is, and don't understand why no one will give a straight answer.

Because different people will have different answers as to what they think torture is. Some folks thing sleep deprivation constituties torture. Personally for me, unless there is a car battery and come cables, or rooms painted wall to wall green it ain't torture.

Can they torture you then for information on where they are if it has nothing to do with

1. Punishment?
2. Prosecuting you?

This has already been asked an answered. You seem to be determined to not accept the answer given to you. The 5th amendment prohibits this conduct plain and simple.

When you begin to argue in any fashion that torture can be allowed under the COTUS I become worried. Some here seem to think they have found some wiggle room where it is allowed. I am worried that the path that leads us to find it acceptable for use on our "enemies" may all too easily then be applied to those "enemies" within our own borders and who happen to have US citizenship.

Then you don't understand the principles of government. The US constitution is not omnipresent. A non-citizen on foreign soil is beyond the protection of the US. As a result, (assuming we did not sign any international treaties and conventions) there isn't anything unconstitutional about the CIA torturing people.

Whether this is moral, good or wise is an entirely separate discussion.

 

[nobody_special]

Baloney. You're going to tell me they intended women to be able to be president when they denied women the right to vote?

I'm telling you they did not prohibit a woman being president. But as I said before, I suspect they didn't really consider it.

 

[STAGE 2]

I'm telling you they did not prohibit a woman being president. But as I said before, I suspect they didn't really consider it.

They didn't consider it because such an idea was ridiculous to them. It went without saying that men governed. To put a direct prohibition on women holding office (though using the word "he" is pretty straight forward) would be useless. Since women couldn't vote, and men weren't going to vote for a woman, how would she ever hold office? As such, what I said originally stands. In 1789 "he" meant exactly that, men only.

Similarly, for the framers to include a sentence saying "we intend for this constitution to only apply citizens in america" is ridiculous as well because for them it was common sense.

 

[Yellowfin]

One of the few virtues of John McCain is that he is the only president willing to commit to a non-torture policy.

I doubt he'll hold to that ethic when he gets the nomination and starts bombarding us with commercials. :barf:

 

[nobody_special]

They didn't consider it because such an idea was ridiculous to them. It went without saying that men governed. To put a direct prohibition on women holding office (though using the word "he" is pretty straight forward) would be useless. Since women couldn't vote, and men weren't going to vote for a woman, how would she ever hold office? As such, what I said originally stands. In 1789 "he" meant exactly that, men only.

They could have specified male citizens; they didn't. Granted it would have seemed strange at the time, but I submit that you're reading far too much into the pronoun "he" -- especially since that pronoun is, and was, also used in the gender-neutral case.

I don't actually know if they considered the possibility of a female president; considering the time, I doubt it (but could be wrong). If they did consider it, they obviously found it acceptable. If not, well, it doesn't matter anyway as it was not prohibited.

Similarly, for the framers to include a sentence saying "we intend for this constitution to only apply citizens in america" is ridiculous as well because for them it was common sense.

It is absolutely not ridiculous, and it was not common sense at the time. The framers were careful in their choice of words; they used "citizen" when they meant it, and "people" when they wanted to be more general. Remember, at the time there were slaves, Indians, and aliens present in the country. Such people were not citizens.

This is all settled law.

 

[RDak]

I strongly believe Scalia will say the right to self-defense is a fundamental right and guarding against tyranny is constitutional pursuant to the 2nd Amendment.

 

[STAGE 2]

They could have specified male citizens; they didn't. Granted it would have seemed strange at the time, but I submit that you're reading far too much into the pronoun "he" -- especially since that pronoun is, and was, also used in the gender-neutral case.

I don't actually know if they considered the possibility of a female president; considering the time, I doubt it (but could be wrong). If they did consider it, they obviously found it acceptable. If not, well, it doesn't matter anyway as it was not prohibited.

On what planet are you on that allows you to argue that the framers were fine with women in government when they denied them the most basic right of a democratic government.

Until you show me some evidence that back in 1789 the word "he" was interchangable when used in the governmental sense, your position is flawed.

The framers were careful in their choice of words; they used "citizen" when they meant it, and "people" when they wanted to be more general. Remember, at the time there were slaves, Indians, and aliens present in the country. Such people were not citizens.

Thanks for proving my point. None of the folks you listed were granted any rights under the constitution. Slaves were property, not people. Indians were prohibited from doing most anything where government was concerned. The 2nd amendment says "the right of the people". However the same guys who wrote this didn't allow slaves or indians (when they were within their control) to have weapons.

That should tell you that the framers didn't intend the term "people" to mean everyone within the national borders.

 

[Musketeer]

I just would really like to know what was meant by this:

Scalia said stronger measures could be taken when a witness refused to answer questions.

What stronger measures? What witness? Domestic or Foreign?

As far as could a woman be president legally before 1879...

Victoria Woodhull ran against Grant and Greeley in 1872 for the Presidency of the United States. She certainly wasn't a threat but she was not blocked from being a declared candidate and running. In addition she was the first woman to own a Wall Street investment firm, to found her own newspaper and to speak before Congress demanding that women be given the vote. Finally, deep in the darkest corner's of Hillary's mind she is despised for taking the title "First Woman to Run for President". Notice Clinton has not claimed that title for herself.

OOPS, 1789, 1889 my error.

 

[Buzzcook]

Baloney. You're going to tell me they intended women to be able to be president when they denied women the right to vote?

FYI the Constitution didn't remove the right of women to vote. That right where it existed, such as New York, was removed by the various states.

Except where specifically mandated by amendment the individual states decide who gets to vote and who doesn't.

 

[nobody_special]

On what planet are you on that allows you to argue that the framers were fine with women in government when they denied them the most basic right of a democratic government.

So let me get this straight: your position is that a constitutional amendment would be required in order for a woman to be president, even though it is not prohibited in Article II where the qualifications for president are laid out? All due to the use of a pronoun?

Until you show me some evidence that back in 1789 the word "he" was interchangable when used in the governmental sense, your position is flawed.

"When used in the governmental sense?" What is that supposed to mean?

Webster's dictionary from 1828 indicate the use may be "of common gender" when used in the general sense.

Thanks for proving my point. None of the folks you listed were granted any rights under the constitution.

While true, that is a meaningless statement. The Constitution does not grant rights to citizens either; it grants powers to the federal government.

Slaves were property, not people. Indians were prohibited from doing most anything where government was concerned.

That's mostly true, but also see Worcester v. Georgia -- Indian tribes had sovereignty on their lands. Slaves were not granted rights, of course, but that's essentially why slavery was abolished; see also Dred Scott v. Sandford.

The 2nd amendment says "the right of the people". However the same guys who wrote this didn't allow slaves or indians (when they were within their control) to have weapons.

That should tell you that the framers didn't intend the term "people" to mean everyone within the national borders.

See U.S. v. Verdugo-Urquidez:

"[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "

 

[STAGE 2]

So let me get this straight: your position is that a constitutional amendment would be required in order for a woman to be president, even though it is not prohibited in Article II where the qualifications for president are laid out? All due to the use of a pronoun?

No, my position is that TODAY because of equal protection, women can hold any position they want.

However, back in 1789 if you asked any of the framers if they intended for a woman to be president, their answer would have been an emphatic no. It would have been just as nonsensical for them (you remember this is still the era of kings and monarchies) to include any prohibitions on women in government as it would have been for them to write passages about space travel. It was an idea so foreign to them that it wasn't even considered.

So it doesn't make sense for the framers to address something that in their own minds could never happen. Hence the use of the word he.

Webster's dictionary from 1828 indicate the use may be "of common gender" when used in the general sense.

Link please.

While true, that is a meaningless statement. The Constitution does not grant rights to citizens either; it grants powers to the federal government.

Then I shall rephrase. The constitution did not recognize the rights of the people that you listed, even though they were born in america and lived here.

That's mostly true, but also see Worcester v. Georgia -- Indian tribes had sovereignty on their lands. Slaves were not granted rights, of course, but that's essentially why slavery was abolished; see also Dred Scott v. Sandford.

Whether indians had sovereignty on their lands or that slavery was abolished has nothing to do with the fact that the framers clearly didn't intend for the constitution to apply to every human being born in the US.

"[T]he people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by 'the people of the United States.' The Second Amendment protects 'the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to 'the people.' See also U.S. Const., Amdt. 1 ('Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble') (emphasis added); Art. I, 2, cl. 1 ('The House of Representatives shall be composed of Members chosen every second Year by the people of the several States') (emphasis added). While this textual exegesis is by no means conclusive, it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. "

Again you prove my point. The constitution in its original form didn't intend for "the people" to mean everyone. "The people" were to choose members of the house, and yet we know that blacks, indians and women could not vote. Thus, "the people" wasn't meant to include the public at large.

You court decision even admits this when it writes this cute flowery phrase stating "it suggests that 'the people' refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."

In otherwords, "the people" doesn't mean everybody in the country.

 

[zxcvbob]

I am sorry but it should be pretty clear the gov't has no right, since it was never given one in the COTUS that I see, to use torture to gain information simply because it is unrelated to a punishment of prosecution of you.

They could claim that authority by stretching the Commerce Clause just a little farther.

 

[nobody_special]

It would have been just as nonsensical for them (you remember this is still the era of kings and monarchies)

Need I mention Queen Elizabeth I?

The House of Representatives shall be composed of Members chosen every second Year by the people of the several States

Again you prove my point. The constitution in its original form didn't intend for "the people" to mean everyone. "The people" were to choose members of the house, and yet we know that blacks, indians and women could not vote. Thus, "the people" wasn't meant to include the public at large.

I still disagree, for the following reason: I believe the manner of the elections was left to the states; thus the use of "People" grants the states the power to decide which people choose members of the house, rather than the federal government making that determination. Also consider this bit from Aricle I:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

This clearly shows that the framers distinguished between different types of people (free, indentured servants, slaves, indians, and "all other" people). Other similar passages show that the framers distinguished between People and Citizens.

Link please.

http://machaut.uchicago.edu/?resource=Webster's&word=he&use1828=on

Note that I believe definition 3 may also be gender neutral -- "man" in the general sense can also be gender neutral.

The constitution did not recognize the rights of the people that you listed, even though they were born in america and lived here.

The 14th Amendment makes this a moot point; still, the Constitution doesn't exactly explain what is meant by "People". It is clearly distinct from "Citizens" however, and I believe that at, e.g., women's rights under the 4th and 5th amendments were protected.

In otherwords, "the people" doesn't mean everybody in the country.

At no point in this thread did I make that argument (that "People" means everybody in the country). However, "People" clearly has a more broad definition than "Citizens." And in the case of several protections from the Bill of Rights (especially the 4th & 5th amendments, for example), I do believe that the meaning of People should have a meaning similar to those people protected by clause 1 of the 14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

[STAGE 2]

Need I mention Queen Elizabeth I?

Absolutely, however even in her time, the government was run by men.

I still disagree, for the following reason: I believe the manner of the elections was left to the states; thus the use of "People" grants the states the power to decide which people choose members of the house, rather than the federal government making that determination. Also consider this bit from Aricle I:

You keep hedging. Even though the particulars of elections were left up to the states, states themselves prohibited women, indians, slaves and foreigners from voting.

Of course this returns us to the problem of "the people" in context of the amendments which we know doesn't apply to these groups.

This clearly shows that the framers distinguished between different types of people (free, indentured servants, slaves, indians, and "all other" people). Other similar passages show that the framers distinguished between People and Citizens.

But once again, this proves my point. If "the people" was intended to be all inclusive, then they wouldn't have made these distinctions, they would have just said "the people".

http://machaut.uchicago.edu/?resourc...=he&use1828=on

The only thing you have there is the 4th definition. Namely, "4. He, when a substitute for man in its general sense, expressing mankind, is of common gender, representing, like its antecedent, the whole human race."

This says "he" is a substitute for mankind, not a substitute for "she" or other feminine descriptions. As such, just like when the framers use the phrase "the people" and don't actually mean the people, use of the word "he" isn't the all inclusive term you allege it to be.

The 14th Amendment makes this a moot point; still, the Constitution doesn't exactly explain what is meant by "People". It is clearly distinct from "Citizens" however, and I believe that at, e.g., women's rights under the 4th and 5th amendments were protected.

But we aren't talking about the 14th amendment. We are talking about the constitution in its original form from day one.

While I'm not certian that there is a relevant distinction between citizens and "the people" this really isn't relevant either. There could very well be a distinction, and "the people" could still not refer to everyone born and residing in the US.

However, "People" clearly has a more broad definition than "Citizens." And in the case of several protections from the Bill of Rights (especially the 4th & 5th amendments, for example), I do believe that the meaning of People should have a meaning similar to those people protected by clause 1 of the 14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It may very well have a broader definition than the term citizens, but as has been shown, the phrase "the people" clearly doesn't mean "everyone present in the US" as some have claimed.

If it were truly the right of "the people" to elect representatives, the 19th amendment would never have been needed because federal preemption would have overruled state policies prohibiting women from voting.