Forum: Author Hangout

Why, other than the fact that voters wouldn't agree, could a state not decide to ban the sale, possession or consumption of coffee?

Why, other than the fact that voters wouldn't agree, could a state not decide to ban the sale, possession or consumption of coffee?

Theoretically a state could do such a thing.
A state could ban the sale, possession, and consumption of alcohol, and with enough rabble rousing, get it banned nationally. Of course that didn't work out well and had a host of unintended consequences.
The ban on coffee is no more, no less ridiculous than the idea of banning alcohol.

I've wondered why Utah didn't. I'm guessing a lot of Mormons are secret sinners every morning.

The law relies on the theory that, if the state government doesn't enforce it but leaves that to citizens, there's no one to block, so go right ahead. It's insane, but so far we're stuck with it.

It's a bit more complicated then that.

There's preenforcement review and postenforcement review on appeal.

Even before the Texas SB8 bill, SCOTUS did not allow preenforcement review in all areas. Criminal statutes notably do not normally allow for preenforcement review.

SB8 blocks preenforcement review, but nothing in that bill will prevent postenforcement review on appeal in a normal case brought under the SB8 law.

Use of the courts by private citizens to enforce something can be considered "state action" under the Constitution. Look at the cases involving restrictive covenants in housing discrimination.

I'm assuming your not referring to traditional marriage of men with women

To the contrary, s'far as i can see, there's nothing in the Constitution that gives Americans the right to marry, not even the traditional marriage of men with women. If it's not enumerated in the Constitution, does the right exist?

REP
4/2/2022, 11:59:17 AM
Updated: 4/2/2022, 11:59:50 AM

@PotomacBob

If it's not enumerated in the Constitution, does the right exist?

The citizens of America have many rights. Too many to enumerate in a document like the Constitution. So, I would say Yes.

Do you see anything specifically enumerated in the Constitution that gives you the right to breath, eat, or walk down the street? No, you don't.

If it is true that some rights exist that are not enumerated in the Constitution, and if it is also true that some things not enumerated are not rights; no positive assertion of the right to vote is enumerated (it does say you cannot be denied the vote for some listed reasons., i.e. if you're eighteen or if you're a woman); and even if you have the right to vote, do you have the right to have your vote counted? Do you any right to privacy at all? Could you be required to cast your ballot in public so that everybody can know how you voted? There's no "right to remain silent" enumerated in the constitution.

here's no "right to remain silent" enumerated in the constitution.

Yes there is.

US Constitution: 5th Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

when in actual service in time of War or public danger;

(bold by me) A very dangerous addition that is wide open to be abused because it depends on the interpretation of what constitutes 'public danger'.

You left some very important context out.

except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger

In other words, that exception to the grand jury requirement only applies to military personnel. So even if public danger is interpreted broadly, the exception is far narrower than you were thinking.

Aren't all Americans part of a militia through their right to bear arms?

Yes, that's why the "when in actual service" bit is important. Unless the government has called up the militia, they aren't in actual service.

The militia was intended to replace the Standing Army in the day to day defense of the Republic. To this day the US Army can be considered unconstitutional because it is called into service for more than two years.
State militias were to be the counterbalance to the Federal Govt. Which is why the standards for arming and training the militia could be set by the Feds but the State appointed the officers.
After the Late Unpleasantness there was no way the Feds were going to allow the States to keep their own armies and from the 14th Amendment on the Right to Bear Arms was reinterpreted as a Right for arms to self defence, rather than a right to be armed to overthrow an overbearing government. The controlled narrative of the Republicans vs the Democrats has been careful to reinforce this, concentrating on giving ground on carrying handguns while gradually restricting miltary style weapons. No new automatic weapons have been sold to the public since 1986.
SCOTUS has ruled that there is a right to own handguns, as they are commonly held by the public, but there isn't a right to 'unusual and exceptionally dangerous weapons'. Machine guns and grenades are unusual & exceptionally dangerous, so the SCOTUS decision can be interpreted as the militia technically exists, but it can't own actual militia weapons.

The constitution is just a piece of paper according to a former US President & that pretty much explains the ruling class attitude to it.

right to bear arms

You don't have to wear a long sleeved shirt because you have the right to bare arms. And if there is a bear you want to carry weapons, you can arm bears.

Yes. Without looking it up, IIRC every able bodied male aged 18 to 45 is in the unorganized militia & subject to call up when required.
I see future problems with this as in recent days Trannies in Kiev have been complaining that they have been told they are men and are subject to conscription.

@Keet

That issue has been resolved for about 100 years.

I suspected it was in some way or another but just how it is worded still sounds like it is open to be abused in the future.

I suspected it was in some way or another but just how it is worded still sounds like it is open to be abused in the future.

It may well be, but given that the exception is limited to those in active military service, it's not as open to abuse as you seem to think.

If it's not enumerated in the Constitution, does the right exist?

Which is the point of the ninth ammendment. If you had read the link I provided, you'd know that.

This was the whole reason the some of the Founding Fathers opposed the Bill of Rights - precisely because people would think it closed list. It is not. The idea was that with respect to the federal government. men (well white, land-owning men) should be free to do what they want except for the limited obligations of maintaining a federal government. The states could legislate as they will, except in the areas where the federal government has supremacy as set forth in the Constitution.

In the beginning, the Bill of Rights was considered to only apply to the federal government, but by the end of the nineteenth century, they were deemed to apply to the states as well.

Now, should some things not need to be officially made illegal for people not to engage in them? Sure.