At 09:26 PM 3/25/96 -0800, Timothy C. May wrote:

At 1:21 AM 3/26/96, jim bell wrote:

IANACS (I am not a Constitutional scholar), but it is clear that the Constitution, being a relatively short document, is a _framework_, a kind of "generator," for establishing additional legislation. This is, obviously enough, why there is _legislative branch_, after all.

Jim's argument (?) could be turned in all sorts of ways: "Your Honor, there is nothing I can find in the Constitution that says I can't drive on the left side of the road at 125 miles per hour." Indeed, there is nothing laying out detailed traffic laws. And so on.

OTOH, there is much precedent for being able to conclude that a long-established practice is simply unconstitutional. To name just a single example, suffragist Susan B. Anthony insisted in 1872 on the right to vote, arguing that the Constitution guaranteed all citizens that right, and women were citizens too. Both premises were correct; In hindsight, the issue was whether or not they were considered together or merely separately. Nevertheless, it took the 19th amendment passed in 1920 to "grant" this right to women. Although my MCP (male chauvenist pig) credentials are at least as good as most, but not only did she have a point, she was absolutely correct. Despite 80+ years of contrary history, nothing within the Constitution could be interpreted as excluding women from voting. It was merely the practice of the day to do so. That practice COULD HAVE been changed without itself violating the Constitution; at least in theory the 20th amendment wasn't necessary. The fact that an amendment was the way the practice was changed shows that people will attempt to use the Constitution to justify practices which can't genuinely be supported there. The lesson to be learned from this is that "our" government does some things entirely without regard to the wording of the Constitution, which may later be recognized as wrong by later, more civilized times. For an example that has not yet been legally recognized, the Constitution prohibits "involuntary servitude," but until a couple of decades ago the military draft was in force. Challenges to the draft on that basis have never been recognized, despite the fact that the draft is one of the most obvious examples of "involuntary servitude" that there is.

That the Fifth Amendment attempts to make it clear that a defendant shall not be compelled to give testimony which may tend toincriminate himself (lotsa gotchas, as expected) clearly--to me if not to Jim Bell--implies that a "legal system" involving testimony, search warrants, subpoenas, juries, verdicts, appeals, etc., is implied by various parts of the Constitution.

It is, however, far more strongly "implied" by current practice than by any black-letter Constitutional provisions. The difficulty is separating _Constitutional_ justification from "Well, that's the way we've always done it, so it MUST be okay!" It's too bad that many people can't see the difference.

(I could search one of the many online copies of the Big C for details, but I'm sure you all, except perhaps Jim, get it.)

I'm no apologist for Big Government, of course, so I think we have vastly too many laws in the U.S. But I don't think naive arguments saying that a court cannot call witnesses by due process because the Constitution does not specifically have a clause saying this is the case is going to be very helpful or persuasive.

They just recently repealed the national 55 MPH speed limit. Even though it was repealed by law, in the same way it was passed, plenty of people have argued that the Federal government has no jurisdiction in this area. Those arguments are absolutely valid, even if they were ignored. The danger in giving the government implicit authority in areas not mentioned in the Constitution is that it is not clear how far such justification extends. If the government can limit us to 55, then why can't they limit us to 40-bit keys? Jim Bell jimbell@pacifier.com