Congress has been delagated the authority from the people and hence they can not redelegate that authority to anyone else.

That’s just simply false. Congress has the Constitutional right to do anything “necessary and proper for carrying into Execution the foregoing Powers” in Art. I, Sec. 8? That’s how they have the authority to charter a national bank (necessary and proper to regulating interstate commerce, taxes, etc). You don’t expect Senator Reid to actually handle the banking, do you? They delegate the management of the bank, but they continue to oversee it. Go back and read the WPA. That’s what Congress did. They grant the Pres. the authority to enter into conflict, under Congress’ supervision (I believe the requirement is to report to Congress every 60 days and Congress can pull the plug anytime they want). They can’t delegate to the extent that they give up the power, that is correct, but they can delegate insofar as they maintain control of the power.

In reference to the war powers act. This is just a very bad unconstitutional law that allows the kingmen in our government to bypass the strict law of the constitution that says the “people” decide when we go to war through their elected representatives in the congress. The war powers act should be repealed!

“Just a very bad unconstitutional law.” That was the best argument I think I’ve heard on this board yet.

If you’re so worried about the “poeple” acting through Congress, give you no weight to the fact that it was Congress, NOT THE PRESIDENT, that proposed and passed to the WPA? In fact, President Nixon vetoed it and the “people,” Congress, over-rode the veto! If you’re so worried about the “people” being allowed to act through Congress, shouldn’t you recognize that the “people” enacted the WPA and thus, it IS the “people” who made the decision?

As far as the WPA being repealed, you may be correct. You’ve just yet to convince me why.

In reference to the war powers act. This is just a very bad unconstitutional law that allows the kingmen in our government to bypass the strict law of the constitution that says the “people” decide when we go to war through their elected representatives in the congress. The war powers act should be repealed!

The war powers act allows the president to start wars and this is very bad indeed! Any wonder we have not declared a war since 1941, yet we have fought numerous wars since then?

And let us make honor the standard for all government, as well. I’ve never felt more than I have during the last eight years that I’m currently living under a completely dishonorable government.

Related to your remarks on the ninth amendment, I found this post from LRC’s blog today to be interesting.

In other words, you cannot make a claim for or against any specific right not enumerated in the Constitution by an appeal to the Constitution. So if I believe that I have the right to be free from coerced military service, I cannot appeal to the Constitution to make that claim, and you cannot appeal to the Constitution to argue against it (by claiming that if it is not there, it doesn’t exist). (Because although the Constitution does not specify any further rights, it does say that they may exist) The argument must take place on other grounds altogether.

An example: I believe I have the right to do with my property as I please. When the EPA tells me I cannot build a shed in my back yard because doing so may endanger a squirrel, I believe that is a violation of a fundamental right. I cannot make that claim on the 9th amendment alone (except that I can appeal to the 10th amendment to claim that since the federal government has not been delegated powers to protect wildlife, that power is reserved to the states and to the people, and that it is therefore exceeding its constitutional bounds — but that is an appeal to the 10th amendment, not to the 9th).

As far as your Supreme Court ruling, well, from what you’ve told me, it seems to lend support for my point more so than yours.

You’re backtracking now. You can’t quote the 9th Amendment for support of rights existing outside of those enumerated rights in the Bill of Rights and immediatley follow that with a right you think people have (“Perhaps what I would claim is that we have a right to be free from a mandatory draft or coerced service in the military”) and then try to argue that you didn’t use the 9th Amendment to argue in favor of something. If you weren’t intending to offer the 9th Amendment in support of your claim of a right to be free form mandatory draft or coerced service, then so be it. You should have made that clear. But if that’s the case, I reiterate my entire point of this debate – what CONSTITUTIONAL foundation do you have to declare that right? Saying other rights exist by pointing the 9th Amendment is one thing, but offering a specific example without supporting it is something entirely different. You HAVE to have support somewhere other than the 9th Amendment for your claim. That’s all I was saying saying. Stop misinterpreting me! :)

ALso, I never tried to “interpret it out of existence.” I simply provided the Supreme Court’s interpretation, which I give FAR more weight than your “book” (probably because legally, the Supreme Court matters, not books).

I have to be at work in 7 hours, so I resign. The last word is yours.

I’m NOT saying that the ninth amendment specifically gives us any more rights. I’m not saying that you can use the 9th amendment to argue in FAVOR of any right; since the 9th amendment doesn’t specify any. It simply says that they might exist. Get that straight. Please stop misinterpreting everything I say.

All I am saying is that the Constitution does not contain a list of all our rights. That is EXACTLY what the ninth amendment says, and it is exactly how it was historically interpreted. I just read a whole book about the subject. Your statement that “it must be in the Constitution to be a fundamental right” is in violation of the 9th amendment, and also the writings of those who composed the ninth amendment (I know the historical interpretation, and it is on my side). If you disagree with the ninth amendment, that’s fine, but don’t just “interpret” it out of existence.

I never said that if it’s not “mentioned” in the Constitution it’s not a right. When you’re arguing legal points, the words you choose do matter. I said a right must be guaranteed in the Constitution (that’s according to the way the 14th Amendment has been interpreted – as a legal matter, I think it’s wrong and i do believe a right must explicitly stated in the Constitution to be a right).

Houston v. Moore explains that the 9th Amendment reserves the right of the people to self-govern on a local level in all matters not under Congress’ control (that’s where your original point about the 9th AMendment comes in – the anti-federalists (which is a misleading name…in 1791 the anti-federalists are what we know today as federalists) were afraid that by having a Bill of Rights with certain rights declared in black and white, Congress would use that as an excuse to usurp control over those things not explicitly stated in the Bill of Rights). Rather than conferring some fundamental rights beyond those guaranteed elsewhere in the Constitution, all the 9th AMendment does, or was intended to do is the better way to put is, is reserve the right of self-government to the people in any matters not explicitly guaranteed by the Constitution to any branches of the government. Nothing more. Despite how you read the 9th Amendment, legally, that’s what the 9th Amendment means. So yes, I can say that if it’s not guaranteed in the Constitution, it’s not a right. It’s subject to be legislated on a local level by the people (federalism).

I think our disagreement may be over the misunderstanding of the term “fundamental right.” That is a term of art in the legal world which essentially means a right that cannot be abridged, even by popular vote (racial equality, for example, is a fundamental right – even if the 99.9% of Americans wanted to discriminate against Polynesians, they can’t – racial equality is a fundamental right guaranteed by the Due Process clause of the 14th Amendment – actually, that’s a good example too of something “guaranteed in the Constitution” that isn’t “mentioned in the Constitution”).

I’ll readily agree that there are a slew of laws that grant certain powers to the President for which the public deems his actions to be justified and legal. That does not make them lawful, however, for any law that contradicts the Constitution is wrong. Congress passes a number of laws each year that go against Constitutional provisions, but that does not mean that they are moral nor authorized. The Constitution is very, very specific regarding war. Congerss may call it by other names (“military force”) in order to feel good about letting the Executive make all the hard decisions, but the power to send this nation into combat lies only in the hands of Congress, according to the supreme law of the land.

It is perfectly legitimate for one branch of government to delegate one of its rights under the Constitution to another branch. It’s done rather frequently.

It may be frequent, but I would argue that it’s absolutely not legitimate, barring a Constitutional amendment. The various branches of government are expressly granted certain powers, and the power to transfer those powers is not allowed by the people.

Or, if you want the latin legal term: Delegata potestas non potest delegari (A delegated power cannot be delegated).

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

In other words (or, the same words I used before), not being mentioned in the Constitution is not a sufficient cause to say that something isn’t a right.

I disagree with your reading of the Ninth Amendment. I don’t think it stops me from making the argument that if the Constitution doesn’t guarantee it, it’s not a fundamental right. You’ve got to point to something else showing me it’s a protected right, like the 14th AMendment EP or DP (Due Process) clauses to make that claim. If you just cite the 9th Amendment you’d be laughed out of a courtroom. I reiterate my statement, if you can’t point to something in the constitution that tells me desertion is a fundamental right, it’s not, regardless of whether someone wants it to be. You’ve got to give me something else.

I’ll concede that I realize that we’re just arguing a legal point here. I don’t think you believe that the right to desert the military is fundamental, do you? We’re just speaking generally?

Connor:

Rep. Paul didn’t convince me. War Powers Act § 2(c)(2) expressly provides that Congress can grant “specific statutory authorization” to the President to “introduce United States Armed Forces into hostilities.” In the Authroization for the Use of Military Force Against Iraq § 3, Congress explicitly granted that power to the President (the section is actually titled “Authorization for Use of United States Armed Forces”).

Rep. Paul tries to gloss over it, saying Congress can’t “hide behind” the War Powers Act. They’re not hiding. They’re complying with it. It’s the law, whether Rep. Paul likes it or not, until (and if) the Supreme Court ever strikes it down, which they’ve declined to do in the past. It is perfectly legitimate for one branch of government to delegate one of its rights under the Constitution to another branch. It’s done rather frequently.

“Immoral war” I might entertain, but based on that article, “illegal war” is just plain wrong.

I do see your point; I believe that governments have invented “rights” that simply do not exist (such as the “right” to free health care, or the “right” to abortion). I am only pointing out that the argument against such actions had better not be “The Constitution doesn’t give them that right, so therefore people don’t have that right,” since the Constitution itself has provisions against such an argument. A better argument must be presented. I think you have provided the beginnings of just such a better argument: you said it should be a punishable offense to breach a signed contract. Whether or not I agree, it is a much better argument.

I agree that there are better types of civil disobedience (namely, resisting an immoral law being forced upon you without any previously-given consent), but obviously Sgt. Chiroux’s mind changed somewhere, his conscience convinced him that the war is wrong, and so he ultimately chose to disobey his orders (and contract) and face the consequences. Sure, the problem was initially one of his own making (since he signed on the dotted line), so his version of civil disobedience is far less noble than others, but I still applaud him for following his conscience.

If I was an 18 year old kid from a broken family, desperate for cash, and excited at the opportunity of getting paid to blow things up, I would likely have no problem joining the army. Should I not be permitted to break my contract if, a few years later, I am sent to fight in an immoral, preemptive war with which I disagree? Is it just and proper to sign a contract to make myself a pawn in the game of war?

For this reason (and many, many others), I believe that soldiers should be permitted to leave the military if they choose to do so. The incentive for having a strong, united army is to have them engaged only in proper warfare. If we truly are fighting for our freedoms in defense of our security, then this country will have absolutely no problem recruiting enough individuals to take up arms. Coercion, conscription, and large monetary incentives are the tools of a government engaged in immoral warfare which needs dispensable lives to man the guns and fill the ranks.

Also, I’m sincerely interested to hear the case as to why the war is illegal.

Reason numero uno, and the most important of them all, is the one addressed in this article by Rep. Paul.

I 100% agree. However, I challenge you to cite me all of the cases you can find where that amendment is used as the sole support of a declared “right.” I issue this challenge because I know for fact that your list will be very, very short. Even with the 9th amendment, you have to point to SOMETHING that makes a “right” a right. For example, under the EP clause, courts have pointed (erroneously in my view) to the historical record on an issue. If the overwhelming historical record supports the contention that a right is fundamental, then it will be decalred as such (hence you get the “right to privacy” as fundamental in Griswold v. Conn. – the foundational case for Roe v. Wade).

If that’s the test, then I REALLY fail to see how desertion is a fundamental right. The overwhelming history and societal/legislative/punitive record of desertion was to treat it as a crime, once punishable by death, now by imprisonment.

The arguments you make are policy arguments to “change the contract,” so to speak. it doesn’t make the right to desert military service “fundamental.” I can see your point on the policy argument to change (though I disagree with it). If the legislature sees fit to act on the argument, they’ll change the contract. Until then, those who agree to military service should abide by the terms they agreed to or suffer the consequences.

Connor:

I guess I missed your point then, or I’m even more confused. It sounds like you applaud the sgt. for his “civil disobedience” (in quotes because I disagree on that characterization and I think it cheapens what I see as civil disobedience). See above – there’s no fundamental right to desert. I applaud him for facing the music too, and on that I guess we agree. I just don’t think we should be looking to him as a good example. He agreed to do something then broke his word. He goes to jail. End of story for me.

Also, I’m sincerely interested to hear the case as to why the war is illegal. It’s not something I’ve looked into and I’m suspect every time I hear someone make the claim, but I’m willing to entertain the argument.

That is a pretty logical comment.

One response: many did not want a bill of rights in the constitution, because they feared that a bill of rights would be misinterpreted as an exhaustive list. They did not want the government to believe that the listed rights were the only rights. That is why they included the 2nd amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So even if the Constitution does not speak of a particular right, does not mean we do not have it.

I think I agree that we shouldn’t have the right to break contracts without consequence. Perhaps what I would claim is that we have a right to be free from a mandatory draft or coerced service in the military. I would also claim that if someone objects to a war on a principled basis, they should have the means or process available to null their military contract (like a divorce). Such a process would have consequences (just as a divorce has consequences), but they should not be imprisoned for seeking release.

One advantage I see in this possibility is that no president could fight a war without the consent of those who fight. Thus, it would be unlikely that a president could rally support for any war but that of defense against foreign invasion, and I think Connor believes that is the only kind of war our nation should fight.

You also err in your post stating that in our country you can freely leave any job anytime you want. Not so. In any job that involves and employment contract, you aren’t free to leave at any time without consequences and you agree to those consequences (damages) in advance.

Nowhere do I say that the person should be able to “freely leave”. I fully support a reasonable punishment for the breach of contract, as any judge would likely impose. Consequences should absolutely be imposed. This is why I praise Chiroux over others who flee punishment—he is practicing appropriate civil disobedience by facing the music and accepting the consequences of his actions.

Contracts would be pointless without the ability to enforce them, and thus the person who breaks his oath should suffer the consequences. This is what I’m saying should be made available to all—the ability to change one’s mind and terminate a contract previously made, so long as the person is willing to make up for it in the appropriate and determined fashion.

For me, as with Joseph Smith, it’s a question of honor. I’d be suprised if Joseph Smith would condone Sgt. Chiroux’s desertion.

I can’t speak for what Joseph’s approval might be, but I agree that honor is an issue in fulfilling one’s word. However, one’s intentions can change over time, and I believe that there should be an opportunity provided to pay the piper, back out of a contract, and move on. If society wishes to look with disdain upon that person, then that’s fine. But at least he is able to live according to his conscience and change his life’s path as he sees fit.

You also err in your post stating that in our country you can freely leave any job anytime you want. Not so. In any job that involves and employment contract, you aren’t free to leave at any time without consequences and you agree to those consequences (damages) in advance. I fail to see how the military is any different. You can argue for the military to change their policy and lower the “damages” for breaking the contract, but to declare desertion a “fundamental right” swings the pendulum WAY too far the other way. If you don’t like the terms, don’t sign on the line, otherwise live with the consequences that you agreed to.

For me, as with Joseph Smith, it’s a question of honor. I’d be suprised if Joseph Smith would condone Sgt. Chiroux’s desertion. He might empathize and wish the consequences weren’t so severe, but I think he’d tell him to keep his word.