================= At 04:28 PM 4/27/2008, Jon Roland wrote:
A right not being absolute doesn't mean the government has the power to restrict it legislatively. Constitutional rights are immunities against actions by government officials, not rules for adjudicating conflicts of rights among private parties. Legislators can enact judicial jurisdictions and statutes within which courts may, by due process, disable the exercise of any right, upon proof that if not disabled some violation of another persons rights would be likely to occur, or as a penalty or compensation for having violated someone's rights. But that does not imply the power to enable law enforcement officers to arrest someone for violating a statute that seeks to prevent some future injury, especially if the theory of causation involved is unsound.
With all due apologies to Professor Olson, and because of my misreading of the authorship or, actually, inability to identify the authorship of the Maxine Burnett piece, I will not engage that particular topic further. However, I will engage this narrow topic that arises from a point I seem to have made.
My first question would be a straight counter-point to Jon's opening statement (I do believe I am correct this time in ascribing authorship to Jon Roland) - if a right is not absolute, how can it not mean that the government does not have the power to restrict it legislatively?
(Somehow I actually think that last is not a double negative but I apologize for the poor constriction anyway.)
I understand the point Jon makes that follows his opening statement with respect to adjudicating conflicts of rights between individuals. Inasmuch as the statement is completely declarative, to wit, the "right" is not absolute, that would have to include private disputes; nonetheless, it is unnecessary to misdirect this discussion with respect to individual/private disputes so I shall avoid that as I inquire into the "higher" issue - does a right not being absolute ever permit government to restrict it legislatively or are such restrictions solely limited to the private arena, in which case my question would end right here.
I am not going to answer the question, just ask it - If "Congress shall make no law" is not absolute, then "shall not be infringed" ought to be similarly non-absolute, thereby permitting Congress to reasonably restrict the right in question. I believe that to be the case but I am certainly open to being disabused of that notion by hard evidence to the contrary.
***GRJ***
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