FCC June 2nd

Jeff A. Smith · Post by **Jeff A. Smith** » 10 Jun 2003 9:26 pm

It's legitimate only if a majority of voters / citizens agree it's legitimate, within the confines of the constitution. And it's possible amndments.

Sir, I will have to disagree with you on that.

If the rest of the people on your block decide to evict you from your home and use it as they wish, does that make their use of force legitimate? Do these same people have the right to tell you how to live your life and run your business, "for the good of the majority?" Of course you'll say it's all a question of balance, but history seems to prove the futility of trying to establish a foothold on that slippery slope. And nobody ever agrees on the proper balance either. We're back to who has the power, rather than an impartial rule by law. Where is the historical example that contradicts this? How much of what the U.S. Government does today is really constitutional? Read the ninth and tenth amendments; if it isn't clearly spelled out in the Constitution, the federal government has no authority to do it.

David, is your idea of morality really governed by majority rule, or rather by a belief in natural rights that exist prior to their being acknowleged by a majority of voters?

This is the big difference between the natural rights-based American system -- in theory anyway -- and totalitarian systems that believe what's right is whatever the state decides, perhaps with majority consent.

It's true that the American system is the best, or one of the best ever; that's why U.S. history is the finest example of the impossibility of limiting centralized coercive force, once it's established.

In reality, since the Constitution was only ratified by a slim margin, and since the signers had no objective legal justification to answer for any present or future people but themselves, even our current system is founded on an injustice. Jefferson, in a communication with Madison, put forth the idea that the people should have the right to review their contract every twenty years or so. He knew the score. Madison pooh-poohed the idea.

You can get into issues involving the justification of coercive government through "implied consent," starting with John Locke, but these arguments seem to me to be clearly transparent.

Here's an interesting thing to consider: Knowing how paranoid most of the states were about giving up their sovereignty to the federal government, what sense does it make to think they would knowingly give up their right to ever back out of the arrangement? Lincoln did his best to decide that one, and they made sure Jefferson Davis didn't have his day in court to deliver his defense of the right to secede.

If someone arrives at their conclusions about government only through utilitarian analysis(what seems to work) and has no interest in natural rights, then they probably have no problem with the fact that the majority (through government) routinely violates the rights of individuals in ways that would be clearly illegal in transactions between one individual and another.

I've learned that if someone isn't interested enough in this to consider ways of more accurately honoring the rights of individuals, then it's a waste of time to talk about it. However, since we're then left with trying to develop strategies of how to get a big enough club to fight big business, we should realize that our morality is based on force rather than virtue. We shouldn' be too surprised when this philosophical shift begins to trickle down from our ideas about government activities into our ideas about what's right between individuals.

Why would there be any difference between the two?

There has been a great deal of thought done on how all the needed functions of government might be handled in ways which honor the right of voluntary association, and don't require a state monopoly on force that inevitably tramples the rights of minorities (or disenfranchised majorities). However, that would clearly take us even further off-topic, as would a refutation of the orthodox understanding of monopolies, which in reality usually involve government favortism or restriction at some point.

My understanding is that the common law tradition of property rights was doing a fine job of dealing with the emerging broadcasting industry until the government got nervous about it's lack of control over it and butted in. According to the legal historian H.P Warner:

"grave fears were expressed by legislators, and those generally charged with the administration of communications....that government regulation of an effective sort might be permanently prevented through the accrual of property rights in licenses or means of access, and that thus franchises of the value of millions of dollars might be established for all time."

The net result, however, was to establish equally valuable franchises anyway, but in a monopolistic fashion through the largesse of the Federal Radio Commission and later FCC rather than through competitive homesteading.

Hope this wasn't offensive to anyone,

Jeff S. [This message was edited by Jeff A. Smith on 10 June 2003 at 10:59 PM.][This message was edited by Jeff A. Smith on 10 June 2003 at 11:59 PM.]

Jeff A. Smith · Post by **Jeff A. Smith** » 10 Jun 2003 10:21 pm

Let's see if we can find the moral flaw here:

All four look pretty good to me Earnest, but since...

(hint: look near the top)

I'll have to go with the idea that broadcast stations are thought by some to require a different morality, based on their scarcity and value. And yet, doesn't scarcity determine the value of everything?

David L. Donald · Post by **David L. Donald** » 11 Jun 2003 12:35 am

Lets see, an interesting set of arguments.

<BLOCKQUOTE>quote:<HR> quote: It's legitimate only if a majority of voters / citizens agree it's legitimate, within the confines of the constitution. And it's possible amndments.

Sir, I will have to disagree with you on that. <HR></BLOCKQUOTE>
Thank you for the respectful sir, sir.

I added "the possible amendments" because for an ammendment to pass it is a much higher standard and greater majority of voters needed. And the franchise has been greatly extended to many more possible voters than even 100 years ago.

If you say legitimacy is only imparted when 100% of all individuals agree, then that is a fine utopian arguement... but absolutely impossible in practice. And life is a practical function for us all.

Do you have town meetings in your place of residence. I grew up in a town in Massachusetts with the oldest town meeting in the USA. My mother was a 3 times elected Selectman and also occasionaly town meeting moderator. So I have seen this in the practical sense and as grassroots as it can be had.
EVERYONE could have their say, and the meeting was exteneded until ALL persons wanting to speak had their say... even if that meant several nights of extra meeting.
Don't for a minute imagine there was general agreement, but a consensus was out of neccesity reached... eventually.

If the rest of the people on your block decide to evict you from your home and use it as they wish, does that make their use of force legitimate?

If you would expand that to larger than a "block", make it a town or state, I believe that is called Eminent Domain, and that is how our interstate highway system was created. It is difficult to say that this feat of engineering has not benifited America.
Would you ever get to a far off steel show without it?

Even as it inconvenineced a few... including a personal friend of 40 years. He didn't like having to sell his house for less than the market MIGHT have gotten him, but in the end he used Rt.495 hundreds of times. Oh yes he was a a land title lawyer, he understood the proccess better than most. And a WWII POW.

Eminent Domain was also used for schools and hospitals and sewage treatment plants and watersheds,TVA electricity projects that brought power to places that never had a chance before, and a great many things needed for the public good.
So we eradicated much illiteracy, premature deaths and suffering, colera and other plagues of mankind.
And isn't it nice to have a clean glass of water to drink now and again, without the efluent of your neighbors being in your well?

David, is your idea of morality really governed by majority rule, or rather by a belief in natural rights that exist prior to their being acknowleged by a majority of voters?

I am slightly, but not greatly afronted at my morality being called into question...
Absolute morality in the philosophical and utopian sense vs. a practical understanding of how things are done are two separate issues.
What I would ideally like and what I can practically envision are not the same. I do not see this as a dicotomy.

Just as a reference, my father was a univeristy professor of philosophy, and my mother was always involved with small town practical politics for decades. So I surely see both sides.

My arguement was based on what I understand about the constitution and also states rights. and the original intent and reasoning of those that wrote the laws at the debut of radio around 90 years ago.

If we are talking Jefferson and Madison, I would rather side with John Adams.

The constitution was ratified by the number of people, in the number of states, needed to make it so. Did everyone agree, no.
If we all could agree... there would be no need of laws or constitutions. But man is by nature self serving.. some more altruistic than others.

<BLOCKQUOTE>quote:<HR>However, since we're then left with trying to develop strategies of how to get a big enough club to fight big business, we should realize that our morality is based on force rather than virtue. We shouldn' be too surprised when this philosophical shift begins to trickle down from our ideas about government activities into our ideas about what's right between individuals.
Why would there be any difference between the two? <HR></BLOCKQUOTE>

For the simple reason that if we went to total individual freedom in it's absolute sense of each individvual making his or her decisions totally independently, it is called anarchy.
And this, though in theory is laudable.. in practice gets many individuals gravely hurt.
I wish it weren't so.

There is moral philosophy as a guide and practice, which is by necessity based on facts on the ground, not what we might want. I don't see this as a slippery slope.

One of the reasons that it was neccessary to control the airwaves was a market driven proliferation of absurdly high power radio stations on the order of a 1,000,000 watts, that blew other smaller stations right off the air..
Millions of kilowatts, 360 degrees, and blasting on larger than needed bandwidths to specifically wipe out competitors.
Not even getting into the possible, potential health aspects of such high power broadcasting.

Now it is regulated as a set amount of power, 50,000 watts I believe, and also in some cases with directionality. Little backwater country stations at 5,000 watts are able to still function, and not just the rap music monoliths for a region.

This was happening. This was one of the main reasons for the regulation of the airwaves.

I have a friend whoes job was designing radio and TV anttenae. He explained this in detail.

So the Buffalo NY station at 1070 doesn't wipe out the 10+ stations in smaller towns 300 miles away, broadcasting local stuff at 1020 or 1130.
Little college stations can still broadcast alternative music, and the kids running them learn the ropes of the business.

In general I am FOR deregulation in many, many things. This is not one of them.

I am living in France, which is in the grip of a general "solidarity" strike. They are fighting deregulation of the schools,in this case decentralization. < read; deregulation.

And also a raising of the retirement age for 1/4 of the working population, civil servants who can almost never be fired..
to match the other 3/4's...the public sector, in an effort to save the pensions system for ALL workers, because of the aging baby boomer population.

The govenment sees the handwriting on the wall. The leftist unions only see an errosion of their power and will stop at nothing including general stikes across the whole country. And from what I have heard quoted, out and out lies to work up "their workers" into effectively closing down the country.

Inspite of the facts that the economy is on the edge, the public sector unions, not the lawmakers, are bleeding the economy dry with special privileges and they are hurting everyoine else.
They actually are fighting for MORE regulation here and damn all who disagree.

I find this myopic and so totally self serving some days I get just ready to punch a wall.
They may even bring down another government. (The pragmatic Prime Minister, but not Chirac)

Teachers have been preventing graduations and final exams, and I have friends whoes kids haven't been to school in literally months.

I don't think this is right either.

<BLOCKQUOTE>quote:<HR>1. There are only a few broadcast TV channels, and radio frequency slots.
2. Each one is worth hundreds of millions of dollars.
3. I want one but I don't want to pay for it.
4. Therefore the government should steal it and give it to me.<HR></BLOCKQUOTE>
Not all bandwidth is alocated to huge markets.
worth millions, but to tiny markets and college stations and local broadcasters. By regulating power output and directionallity many more stations can exist.
But the big boys want to swallow them up...

Earnest, do you watch PBS? Like the Civil War or documentaries? Listen to a college radio station broadcasting old country shows?
This is what has been provided in part by this regulation. Not at all by market forces.
The finite bandwidth has been partitioned to allow for this. Does this benifit the few or the masses or both? I say both, the small niches and the poulation as a whole.

Is this really stealing from you?
If there was NO regulation at all, what do you think would be broadcast in your area? Your kind of music, even if only one 4 hour show once a week, or just what the marketers say sells the most ads?

With out the equitable division of finite bandwidth we would be totally at the mercy of market forces.. and that means 13 year olds who buy Emmenem and Brittany, and not much else.. like, back to this threads begining, country music from the Opry etc.

And I reiterate.. I have NEVER been advocating MORE regulation. Just the non-errosion of working regulation. Which gets to the heart of this posts original premise.

Gotta love this forum!
We can have our say from anywhere.
[This message was edited by David L. Donald on 11 June 2003 at 03:41 AM.]

David L. Donald · Post by **David L. Donald** » 11 Jun 2003 2:04 am

Since we are talking constitutional fact and interpretations, here are some anotated US Constitution excerpts :

Amendment IX

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

( Of course this is very vague and subject to the supreme courts interpretation, as it is made up politically from time to time. Hence the propensity of political parties to try and pack the supreme court with their ideaologs.)

Amendment X

The powers not delegated to the United States by the Constitution,
nor prohibited by it to the states, are reserved to the
states respectively, or to the people.

( pretty clear, but what exactly are these rights NOT delegated? Anything not a state or fedal law or regulation.)

Amendment V

No person shall be .......
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.

(This is the essence of Eminent Domain. of course "Just compensation" is open for disput and IS regularly disputed.)

Article VI
............... Section 8.
The Congress shall have power to lay and collect taxes, duties, imposts and excises,
to pay the debts and provide for the common defense

and general welfare of the United States;

( the "general welfare" of the states together, not the US government per se. Again a large space for interpretation)

but all duties, imposts and excises shall be uniform throughout the United States;

.....To regulate commerce with foreign nations,
and among the several states,
and with the Indian tribes;

( the airwaves is something that is truely cross border, and also of a comercial nature. So it passes between the several states.)

.........To establish post offices and post roads;
(Another use of Eminent Domain)

....... and to exercise like authority over all places purchased by the consent
of the legislature of the state in which the same shall be,
for the erection of forts, magazines, arsenals, dockyards, and
other needful buildings;--And

.........To make all laws which shall be necessary and proper for carrying into execution the foregoing powers,
and all other powers vested by this Constitution in the government of the United States,
or in any department or officer thereof.

(The FCC is such a department. Needful Buildings is a concept they could handle, not having any comprehesion of the advent of radio.. Well maybe Ben Franklin had a glimmer of the possibilities, but most people then...not a clue.)

Section 9.
....................
Article III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as
the Congress may from time to time ordain and establish. .....

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of
the United States, and treaties made, or which shall be made, under their authority;

.........to controversies between two or more states;
--between a state and citizens of another
state;
--between citizens of different states;
--between citizens of the same state claiming lands under grants of different states,
and between a state,
or the citizens thereof,
and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the
Supreme Court shall have original jurisdiction.
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact,

with such exceptions, and under such regulations as the Congress shall make..........

(So we have division of powers, clear demarcation of powers, and the rational for the FCC controling an element of interstate commerce and communications between states similar to the "Post Roads"

Since the constitution was being used as a reference, I thought it best to get the exact facts as stated rather than try to remember.

In all considering the founding fathers, who argued interminably about this, couldn't foresee the technologies of today, they did an admirable job.

For more on that, from one persective, read David McCullocugh's bio of John Adams. )[This message was edited by David L. Donald on 11 June 2003 at 03:10 AM.]

CrowBear Schmitt · Post by **CrowBear Schmitt** » 11 Jun 2003 3:10 am

Wow D, i usually have a hard time catchin' Bill Hankey's drifts but at least i manage to cop yours.
no Poofter here LOL
Benjamin Franklin for President

(ps: have you noticed how us froglegs stick together)[This message was edited by CrowBear Schmitt on 11 June 2003 at 04:14 AM.]

David L. Donald · Post by **David L. Donald** » 11 Jun 2003 4:59 am

Actually Franklin was too old and little interested in being president. At that point he was just resting on his laurels and being feted in Paris as a pre-embassador for the flegling USA.

An addendum. Fresh from the International Herald Tribune.
The FCC seems to have not put the hammer down on radio. They actually seem to have tightened the rules.
As a direct responce to the rapacacious tactics of Clear Channel, presently owner of 1,250 radio stations. With an eye on as many more as it can get.

C.C. was late doing it's lobbying, to stop this from becoming a public dialog, and seems to have been a scary enough ogre, to not get left off it's chain.
Numbers 2 and 3, Cumulous Media with 250 stations, and Infinity Broadcasting with 180.
Not even being in the same ball park with Clear Channel.

Clear channels "Concert Division" is said to strong arm talent into their idea of what they want them to be, or they don't get air play from the main division and such like tactics.
It's no longer PAYola, but PLAY our wayola

Isn't it a Clear Channel stations that is artificially prolonging the Dixie Chicks stay in puragatory, for not liking Bush, whoes minoins are in control of the airwaves at the moment. Why does this seem to be so connected...

I read 2 DJ's on a Clear Channel owned station were suspended for a week, for playing HOME and threatened with being fired if they played it again. Now that's the american way of free speach for you... and freedom of bad judgment too.

When you have a late start lobbying and it's already a public discourse.. you better suck up to the powers that be big time.
This seems to be one of C.C.'s stratagies.

Anyone from Minot North Dakota have any comments on a total monopoly by C.C. in their town? Have they diversified your formates there? I am very curious to hear.

chas smith · Post by **chas smith** » 16 Jun 2003 11:10 am

Regulate the F.C.C.
By WILLIAM SAFIRE

ASHINGTON

The Federal Communications Commission — in business to protect the public's interest in our nation's airwaves — has by a 3-to-2 vote opened the floodgates to a wave of media mergers that will further crush local diversity and concentrate the power to mold public opinion in the hands of ever-fewer giant corporations.

This troubles some readers, listeners and viewers who don't like homogenized news or one-size-fits-all entertainment forced down their throats. When I inveighed against this impending sellout a couple of weeks ago, thousands — no kidding, an unprecedented torrent — of e-mails came roaring in, many beginning "Though I consider you a rightwing nutcase on most issues, I'm 100% with you against this big-media power grab."

John McCain, chairman of the Senate Commerce Committee, was also startled by the public reaction to the Floodgate scandal: "750,000 people sent messages to the F.C.C.," McCain tells me. "This sparked more interest than any issue I've ever seen that wasn't organized by a huge lobby."

Here's what happened: a single media giant, up to now allowed to own television stations reaching slightly more than a third of the nation's viewers, will soon — thanks to Floodgate — be able to reach nearly half, a giant's giant step toward 100 percent "penetration." And as for "cross-ownership" — the ability for newspapers to buy TV and radio stations in the same city and vice versa — the F.C.C. as much as said "c'mon in, local domination by a media powerhouse is fine."

Now it's up to Congress to overturn the ruling by the roundheeled F.C.C. On Thursday, Senate Commerce will mark up a bill put forward by Ted Stevens, Republican of Alaska, to roll back the penetration to 35 percent. It will be amended by Byron Dorgan, Democrat of North Dakota, to roll back the cross-ownership.

Where does Chairman McCain stand? The maverick whose hero is the trust-busting Teddy Roosevelt is uncharacteristically torn. He's against regulation in principle and admires F.C.C. Chairman Michael Powell, so he won't support Stevens's rollback to 35 percent (which McCain thinks will pass in committee, and which he won't fight) or support Dorgan's amendment on cross-ownership (which McCain thinks is doomed — "the fix is in on cross-ownership").

But I can feel the Arizonan coming around. "There's already too much concentration in radio," he says, as only four companies reach almost all listeners in the U.S. in what some of us remember as a blessedly local medium. "That could be the miners' canary. We'll hold hearings on that." (He should call in artists to examine how one radio combine gained a stranglehold on popular music.)

McCain's hesitancy means that this week's strong hand for diversity and diffusion of power is Stevens. With conservative allies like Trent Lott and Kay Bailey Hutchison joining most Democrats, Stevens has the votes for his bill. Dorgan tells me that if he cannot get a modified version of his cross-ownership rollback amendment passed, there is another way — through the Congressional Review Act — of bringing the issue to the floor.

Forgive the inside baseball (this is beginning to read like a Bob Novak column), but the legislative intricacy shows how a power grab engineered by a seemingly unstoppable lobby has at least a chance of being stymied by an aroused public resentful of media manipulation.

Media moguls slavering for massive mergers don't worry about any Senate action described above. They are sure they have Billy Tauzin, Republican of Louisiana and chairman of House Commerce, in their pocket, and think they can kill any rollback in the House.

Mebbeso, but never underestimate the political sagacity of an old Senate bull like Stevens, who doesn't get his bills passed for show. There may be some serious homeland-security angles to communications legislation that would be of interest to House conservatives and could form the basis of House-Senate cooperation.

The effect of the media's march to amalgamation on Americans' freedom of voice is too worrisome to be left to three unelected commissioners. This far-reaching political decision should be made by Congress and the White House, after extensive hearings and fair coverage by too-shy broadcasters, no-local-news cable networks and conflicted newspapers.

Listeners, viewers and readers are interested. You should see this stack of mail.

Email: safire@nytimes.com

John Steele · Post by **John Steele** » 16 Jun 2003 11:13 am

You guys need a CBC.

-John

David L. Donald · Post by **David L. Donald** » 16 Jun 2003 2:11 pm

I rarely find myself in agreement with Safire.
He has given me more bile than any one writer I can think of.
But this one he is on the mark. Our access to information is being curtailed to fewer and fewer sources.. and the powers that be in those sources are beholden to the big politicos...
It's something right out of Citizen Kane.

Actually I love Safire's work with words, he is a great guardian of our language. And the last year or so I have actually enjoyed a few of his political columns... he must be getting old, it sure isn't me changing my mind.

I didn't intend to run on earlier in this thread about constitutional issues, but I felt a need to be factual.

Alvin Blaine · Post by **Alvin Blaine** » 24 Jul 2003 1:26 am

The House of Representatives just voted on Wednesday to overturn the FCC. They seem to be upset with the TV part of the FCC's action. They voted down the amendment overturning the complete FCC ruling.

By a 400-21 vote, lawmakers approved a spending bill with language blocking an FCC decision to let companies own TV stations serving up to 45% of the country's viewers. The current ceiling is 35%.

News on House bill

David L. Donald · Post by **David L. Donald** » 24 Jul 2003 1:37 am

Good for them.
Dawn breaks over Marblehead (s)[This message was edited by David L. Donald on 24 July 2003 at 02:38 AM.]

Tony LaCroix · Post by **Tony LaCroix** » 24 Jul 2003 9:49 am

"Amendment IX

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

( Of course this is very vague and subject to the supreme courts interpretation, as it is made up politically from time to time. Hence the propensity of political parties to try and pack the supreme court with their ideaologs.)"

I was just re-reading this thread and ran into this. I'm afraid I must object to your characterization of the 9th amendment as vague, David. I consider it to be the single most important part of American law, and also the most abused. It states, in no uncertain terms, that the boundaries of the Constitution do not, and must not, extend past what has actually been enumerated. This flies directly in the face of Supreme Court interperetation, in my opinion. It's probably exactly this kind of contradictory content that made it so difficult for the framers to sign their names to it. When Ben Franklin convinced the rest of the crowd to sign this less-than-perfect Constitution, he became the first US politician to say that something is better than nothing, setting a precedent for hundreds of years to come. We now live in a nation where we have a whole lot of extra, useless "something". Like the FCC.

David L. Donald · Post by **David L. Donald** » 24 Jul 2003 3:50 pm

Hi Tony
Actually your disagreement argument makes my point, in other words.
There wouldn't be the court packing and political sideswiping if this was clear.

It appears clear at first glance, but after analysis, which is the main preocupation of lawyers, it's inherent vagueness lends itself to just what your mentioned;
continual abusive reinterpretation, as is seen to be politically expedient at the time...
or to set someones narrow views as law for ALL time.

I like the line. ... other rights held by the people...
What rights?
States rights , individual rights, rights on the High Seas???
How are they held if not by the constitution?
How did they get them and from where, etc etc etc etc etc?

Each individual might see these "Other Rights" completely different from the persons sitting on their left or their right.

Jefferson and John Adams amoung others actually wanted this flexibility in there because we as people generally can't agree, and times and attitudes change.

The other alternative is something like Sharia Law, written centuries ago and if strictly word for word interporeted, we get Iran, or the Taliban. Yet if flexably interpreted it's something most people can live with.

There is a great, recent book on the Life of John Adams. Well worth reading for the early history and in fighting of our early forefathers.[This message was edited by David L. Donald on 24 July 2003 at 04:56 PM.]

Jeff A. Smith · Post by **Jeff A. Smith** » 24 Jul 2003 5:41 pm

David, old friend of Adams, I have always read and understood the consensus on Jefferson to be that he was a "strict constructionist." His own writings certainly seem to confirm that.

As far as your view of the 9th and 10th amendments, and by implication the whole Bill of Rights, I again differ. I'll supply the following in-depth commentary, which then briefly returns to the matter of early radio history with a request for further information, should you come across any at a future time.

The 14th Amendment, "passed" after the Civil War (in a way many consider to have been clearly unconstitutional, since the southern states were effectively excluded from helping decide their own destiny) either wrecked the original concept of states' rights, and the original intention of the Bill of Rights, or paved the way for a later completion of the job.

This will most likely be all I have left to say on this subject.

Good day to you,

Jeff <BLOCKQUOTE>quote:<HR> David, your presentation of constitutional facts was informative, although I’m a little puzzled by your personal commentaries on the ninth and tenth amendments, (particularly the ninth).

You refer to the ninth as “very unclear.” I don’t know exactly how you mean that, but it seems I must respectfully disagree with you, IF you are referring to how the original intent and understanding of the Ninth Amendment is conveyed in its actual wording. The Bill of Rights is an interesting enough topic that I’m still going to trudge ahead. I also will lend some insight into the certitude with which I spoke above about the ninth and tenth amendments.

There is plenty of material available from the Constitutional Convention, personal communications and writings of the Framers, from which to draw a conclusion. The official explanatory commentaries for the Constitution are those in The Federalist, which mostly include the writings of James Madison (“the father of the Constitution”) and Alexander Hamilton, whose view is especially illuminating since he was “Mr. Big Government” from that time. I could quote sources from the Federalist which refer to a bill of rights, but any good indexed version will provide these to anyone who is interested.

The rather dramatic and oft-misunderstood point I would like to make about the Ninth Amendment, and the rest of the first ten amendments which make up the Bill of Rights, is that according to clear original intent, they themselves do not grant any rights whatsoever. (!) They are intended mostly as a comfort, and a selective amplification. In fact the Federalists (including Madison and Hamilton) originally argued strongly against the need for a Bill of Rights. They not only believed such a list to be unnecessary, but dangerous. The original consensus of the Constitutional Convention was that the Constitution had no need of one. (Some may be unaware that the Constitution was initially ratified without a Bill of Rights, which was added later.)

The Federalist fear was that a finite list of state and individual rights would imply to many that any such rights yet unlisted were either absent or open to interpretation. The basic argument of the Federalists was that the Constitution stated clearly the powers of the federal government. That being the case, it was to be ASSUMED that the rights of states and individuals were innumerable and unnecessary to list, operating in all areas not involving clearly specified federal power.

In other words, things like the “right of free speech,” “the right to bear arms,” “freedom of the press,” were understood to already exist PRIOR to their clear enumeration in the Bill of Rights.

In finally acquiescing and introducing his proposal for a Bill of Rights on the floor of the House, Madison stated:

“It has been objected also against the bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I ever heard urged against the admission of rights into this system; but I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

That final clause was framed as follows:

“The exception here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted MERELY FOR GREATER CAUTION.” (Italics mine.)

George Mason, a leading Anti-Federalist, had argued for the inclusion of a bill of rights, on similar grounds, that it would “give great quiet to the people.”

David, I agree with you that the current status of the Ninth Amendment is unclear, but I don’t see that as due to any lack of communication by those responsible for it; rather, it is due to a lack of respect for original intent and understanding, passage of the 14th Amendment, and subsequent judicial practice. (If part of your point was that in absence of sufficient history on the subject, someone may have a difficult time guessing the meaning of the Ninth Amendment, or that a malevolent intent could twist the original meaning, I could agree with that.) But as to original intent, the issue of whether to have or not to have a Bill of Rights was just too major for there to be any doubt on the subject. Too many primary sources on that survive. An example is the proposal of Madison himself on the ninth amendment, and also his confirmation in a letter to George Washington that his original proposal and the final form of the ninth amendment amounted to the same thing.

If one believes that the ninth amendment was intended to mean that although the Bill of Rights GRANTS certain rights, there are also a finite number of vague others which are also not to be denied, they do so without reinforcement from primary sources documenting original intent.

On the other hand David, concerning areas where the Constitution clearly lists powers granted to the federal government, a few of which you have discussed: I agree that the breadth of federal power granted in these areas is not always clearly discernible from a literal reading of the document. It helps to have a knowledge and appreciation of philosophical premises the Framers had, but even that may not be enough.

I should clarify that in my two previous posts I was not attempting to justify anything based on an interpretation of the Constitution, other than to use it as a powerful example of how a monopoly on coercive force, once granted to a central government, is difficult if not impossible to limit.

The ninth and tenth amendments, as well as any other less specific constitutional references by me, were mentioned in above posts only in passing, and not as the authority upon which I based my point of view.

On another earlier matter David; if you come across any documented information on the type of extreme incidents you were discussing relative to chaos in early broadcasting, please forward it to me sometime. Although most of the examples you cited seemed to be solvable if clear property rights were allowed to develop, (jamming of competitors by high-powered stations for example), I would be interested in more information. One reason is that although I don’t claim to be an expert on the subject, my current reading suggests that a lot of the talk about chaos in early broadcasting, especially with the implication that it couldn’t be dealt with through simple property rights, is more legend than fact. However, my sources cite only a limited amount of legal data and history, since broadcasting is not the main subject of the books. You could do me a favor by providing me via e-mail with more information, should you come across any, so that I might deliberate from a wider viewpoint.

(Quoting function used to lessen size of message. Above commentary is my own.)
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Jeff A. Smith · Post by **Jeff A. Smith** » 24 Jul 2003 7:15 pm

I guess I'll have to comment on this one last thing, From David's latest post, before I sign off this thread:

The other alternative is something like Sharia Law, written centuries ago and if strictly word for word interporeted, we get Iran, or the Taliban. Yet if flexably interpreted it's something most people can live with.

It would console me to think that I'm not the only one who sees clearly that this is entirely opposite the philosophy of the Founding Fathers.

Clearly enumerated and understood powers, and limitations on powers for government are intended to ensure freedom from further government encroachment on the rights of citizens. It is "wiggle room" that allows government to grow and grow.

A totalitarian state would never be possible if citizens truly understood and enforced clear, understood limitations on their government; especially the kind envisioned by the founders of this country.

[This message was edited by Jeff A. Smith on 24 July 2003 at 08:17 PM.]