Hamilton's WARNING

A reading of Blakely v. Washington makes it very clear that the courts words were in discussion of the powers that can be exercised by a judge vs. those of a jury. None of it has anything to do with Hamilton's concerns which were geared toward the conflict of the government vs. the governed.

reserved rights


A reading of Blakely v. Washington makes it very clear that the majority of the court is adhering to long-standing precedent that the Court recounted when it decided Apprendi v. NJ in June 2000. The holding makes it clear that any fact that increases the maximum penalty must be treated like an essential element of the crime charged--it must be submitted to a jury and proved beyond a reasonable doubt. Blakely v. Washington is just another case in a line of cases wherein States have attempted to escape these fundamental requirements by labeling certain facts as sentencing factors rather than elements.

I was not referring to the holding in the case; I was referring the the typical language that the Court used. The Court referred to the fundamental right of trial by jury secured by the Sixth Amendment as a "reservation" of jury power. Hamilton clearly set forth that the people, in establishing our form of government in the Constitution, did not surrender any powers in doing so--they retained all their rights. Hence, it was NOT NECESSARY to make any particular reservations.

As Hamilton would ask: Why should it be written into the constitution that the right to trial by jury shall not be infringed when no power was given to the government to infringe upon that right in the first place?

When the Court refers to "reserved" powers of the people, that certainly implies that all other rights that were not expressly reserved were surrendered--and in a multitude of circumstances, our "reserved" powers (rights) are narrowly construed to allow an abundance of governmental regulation. Hamilton warned that those disposed to usurp (infringe upon our rights) would read the Bill of Rights as granting the government powers to regulate fundamenatal rights when no such power was given.

Trying to distinquish the language used in the Blakely case by claiming it merely discusses powers used by a judge versus a jury and then claiming it has nothing to do with Hamiltons concerns with regard to the conflict of the government vs. the governed makes me shake my head in mind-boggling confusion. What you said is basically this:

"The Blakely case was about the conflict between the government and the governed which has nothing to due with Hamilton's fears about the conflict between the government and the governed."

Say what? [I'm scratching my head in utter confusion trying to decipher your one thing has nothing to do with the next thing statement when both things are exactly the same.]

After all, a judge is a government officer in the judicial branch. The judiciary is a branch of the government the same as the executive branch and the legislative branch. The people--the governed--were concerned about their fundamental rights being usurped by the government. Hamilton was concerned that the very Bill of Rights that the people insisted upon having in order to guard against usurpations, infringements, and oppression would end up defying its purpose.

In fact, the convention included no bill of rights in the constitution. It was on this basis that many people objected to the document as presented. For all that Hamilton contended, the majority of Federalists appealed for ratification on the pretext that a bill of rights would be forthcoming immediately after ratification and the seating of a first Congress. The entire notion of an association of Federalists (no real political party in the sense that we understand today) was a brilliant political stroke--it left the opponents of the constitution in the position of being known as anti-federalists, and associated them in the mind of the public with the chaos and incompetence of the Continental Congress.

When the constitution had been ratified, and the First Congress sat, Augustus Muhlenberg made the promulgation of a bill of rights the first order of business. Twelve amendments were proposed. The first, for there to be a representative for each 50,000 citizens, was never ratified. The second, that no bill varying the compensation of Senators and Representatives could take effect until an election of Representatives will have intervened, was adopted two centuries later as the XXVIIth amendment. The third through twelfth amendments proposed were adopted as the first ten amendments. It seems to me that the IXth and Xth amendments speak directly to the issues of govermental powers assumed or assigned to which Hamilton refers. I frankly consider his statement to be Federalist gobbledy-gook, and it is fortunate for the Federalists and all supporters of the ratification of the constitution that it was not a widely-touted doctrine.

Re: reserved rights


You post a lot of nonsensical drivel. The Court wasn't referring to "reserved powers of the people" with their statement. They were clearly referring to a power granted to the government and stating that the jury was the body of government that was intended to be empowered by the 6th Amendment as opposed to the judge. The decision has ZERO to do with anything Hamilton spoke of or wrote.

Re: reserved rights


Are you a moderator? And you debate the intricacies of constitutional issues in this manner? Curious.

If you come within ten yards of comprehending the significance of the issue presented, I will be pleasantly surprised. In the meantime, I need to award you not only the dunce cap of the day, but also the honor of rudest poster. Of course, you knew that without being told.

Re: reserved rights


P.S. A jury is not a governmental body. Try again.