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Old 08-31-2019, 10:06 PM
Abatis is offline
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Join Date: Apr 2011
Location: Upper Bucks County, PA.
Posts: 322
Quote:
Originally Posted by QuickSilver View Post
I think I understand the position that at it's core, the constitution is meant to protect "unalienable rights".
The concept of "unalienable rights" requires the establishment of a government that respects these principles -- that its powers emanate from the people being governed and that the people retain powers over themselves that they do not confer.

To say that government has an obligation to "protect" something that the people never parted with, that they never gave government any power over, nor placed any aspect of those interests in the care or control of government, represents a true incongruity. How can government assume to protect what it has no power or authority to even contemplate?

"Rights" in the parlance of the framers, were "exceptions of powers not granted". This is why our rights are sometimes referred to as "negative liberties" . . . Our original, inherent rights do not require any government announcement or notation or any positive action or operation of government to exist, be recognized, realized or exercised; they only demand inaction of government to survive.

As opposed to being "protected" by government, our rights are "secured" by government inaction.

Quote:
Originally Posted by QuickSilver View Post
But what's heard more often than not is that we live in a 'nation of laws' and under 'rule of law'.
The "rule of law" means that the enactment and enforcement of the law has rules. The "rule of law" isn't something that is impressed on the people, it is what the people impress on government, forcing it to operate within the strict confines established by the Constitution.

The power of government is strictly limited by enumerated powers and the exercise of those powers is confined only to perform the specific duties assigned to government and its specific offices (legislative, executive and judicial being the general categories). This immovable, unalterable, unyielding foundational principle of the Constitution creates a structural framework that restricts the powers of government; this is where the real protection of rights emanates from -- government can only "do" what we say it can do:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation."

MARBURY v. MADISON, 5 U.S. 137 (1803)
It should be noted with special attention that the Court says, "The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent."

This means, once the fundamental principles of the governmental model are agreed upon and the Constitution, founded on those principles is established, because the federal Constitution "is supreme" --the highest law of the land-- and the government established by the Constitution "can seldom act" --its powers are strictly limited-- those principles can not be retroactively altered, they are permanent. It also means that a court "interpreting" the Constitution so that foundational principles are violated or invalidated, is illegitimate, a usurpation.


Quote:
Originally Posted by QuickSilver View Post
Whether state or federal, these laws often serve to put restrictions on "unalienable rights". Do either of you find these two concepts in opposition? If not, why not?
Not in opposition, because of the "RULE OF LAW". No right is absolute in an ordered society. Even those most exemplary, most revered "unalienable rights" can be disabled for actual crimes committed after due process; people can have their liberty taken, they can have property confiscated, they can even be put to death, after due process.

Our rights are immunities from arbitrary and capricious government action -- freedom from government operations that exceed conferred powers or do not follow established and agreed upon legal rules and processes (extra-constitutional / extra-judicial).

For gun ownership and use, of course there is a government interest in public safety, that's why laws forbidding guns to criminals and the insane and fugitives and those dishonorably discharged from the military, pass constitutional muster . . . We as a society have decided that arms possession by those particular people is dangerous. We accept that rights restriction for dangerous people because we expect the application of rights disablement has rules and is a process that can be relied on wherever one is, whatever jurisdiction one finds themselves in, in the USA . . . Not arbitrary or capricious, applied with different standards or in a blanket fashion on the whole citizenry.

Quote:
Originally Posted by QuickSilver View Post
If so, can they be reconciled, or have we mostly moved well past the founding fathers principles of individualist rights towards those of social justice, i.e. "a more just society"?
Yes they can be reconciled, as long as the government applies the law adhering to the aforementioned "rules of law". The thought that rule-less, ever evolving group-identity driven, anti-individual rights UN-JUST "social justice" could ever supplant actual justice, is horrifying.

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Last edited by Abatis; 08-31-2019 at 10:07 PM.