# Against Civil Liberties creep **URL:** \ **Category:** Great Debates\ **Created:** [January 7, 2015, 1:53am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180 "2015-01-07T01:53:32Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Gaudere](https://avatars.discourse-cdn.com/v4/letter/g/e495f1/32.png) [@Gaudere](https://boards.straightdope.com/u/Gaudere)\ **Post date:** [January 8, 2015, 11:25pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/41 "2015-01-08T23:25:49Z")
[Moderator Hat ON] jayjay, did you forget which forum you were in with that last comment? [Moderator Hat OFF] ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [January 8, 2015, 11:26pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/42 "2015-01-08T23:26:38Z")
> [@jtgain](#): > > Personally I like the test adopted by the Supreme Court (which is only uses when it suits their purposes) that to qualify as a fundamental right, the right must be “deeply rooted in the nation’s history” or “implicit in the concept of ordered liberty.” Although the Court has used substantive due process to recognize these rights, it could just as easily use the 9th amendment. > > Things like heterosexual marriage, the right of parents to the care and control of their children, the right of extended families to live together, and the right to procreate are all things which meet this test and are not explicitly mentioned in the constitution. Things like physician assisted suicide, recreational use of drugs, and same sex marriage (the first two by the Court, the last IMHO) fail this test. I believe that the right to ingest, for whatever purpose, a plant that I grew in my back yard (and the right to grow any plant in my backyard that I want) is definitely “a fundamental right” and is “implicit in the concept of ordered liberty.” ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [January 8, 2015, 11:34pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/43 "2015-01-08T23:34:55Z")
> [@Terr](#): > > I believe that the right to ingest, for whatever purpose, a plant that I grew in my back yard (and the right to grow any plant in my backyard that I want) is definitely “a fundamental right” and is “implicit in the concept of ordered liberty.” To follow up - “keep your nose out of my backyard” and “I can eat/smoke/sniff whatever the hell I want” is, IMO, “a fundamental right” and is “implicit in the concept of ordered liberty” as well. And is “deeply rooted in the nation’s history”. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 8, 2015, 11:55pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/44 "2015-01-08T23:55:12Z")
> [@jtgain](#): > > Personally I like the test adopted by the Supreme Court (which is only uses when it suits their purposes) that to qualify as a fundamental right, the right must be “deeply rooted in the nation’s history” or “implicit in the concept of ordered liberty.” Although the Court has used substantive due process to recognize these rights, it could just as easily use the 9th amendment. > > Things like heterosexual marriage, the right of parents to the care and control of their children, the right of extended families to live together, and the right to procreate are all things which meet this test and are not explicitly mentioned in the constitution. Things like physician assisted suicide, recreational use of drugs, and same sex marriage (the first two by the Court, the last IMHO) fail this test. I’d argue that two of the issues you say fail the test do not do so. Same sex marriage, in my opinion, is a right that is “deeply rooted in the nation’s history”. I can hear you arguing how this can be when same sex marriage has not be legal for most of our country’s history. But I feel the legalization of same sex marriage is just the application of long-established principles. The principle that two consenting adults have the right to get married is certainly traditional. And the principle that all citizens are entitled to equal rights under the law is explicitly a Constitutional right. Put these two together and you’ve got same-sex marriage being a right. The fact that it took so long to recognize that gay people have the same legal rights as straight people is just one of the unfortunate blind spots in our history like the delayed recognition that women have the same legal rights as men or black people have the same legal rights as white people. The right was always there but we refused to admit it. The other right I’d say has history on its side is the right to use recreational drugs. The fact is that recreational drug usage was legal when the country was founded and remained legal for over a hundred years. The idea that the government can tell people what they can and can’t consume is the relatively new idea. So I’d say the idea that you can consume substances for recreational purposes is more “deeply rooted in our nation’s history” than the idea that you can’t. I agree with you on physician-assisted suicide. While I tend to support the idea in general, I agree there’s no historical basis to the idea. It’s only relatively recently that medical technology has advanced to the point where it’s an issue. A hundred years ago, whether you lived or died was pretty much out of the physician’s hands. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 9, 2015, 12:04am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/45 "2015-01-09T00:04:19Z")
> [@Bricker](#): > > Can you provide any examples of “rational basis” being used in a First Amendment context? How about “intermediate scrutiny?” How about issues of government classification of information? My understanding (and I may be wrong) is that the courts have generally given the government a pretty low standard to meet in order to justify classifying information. Does this amount to a de facto “rational basis” standard? ---
**Author:** ![bobot](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bobot/32/21622_2.png) [@bobot](https://boards.straightdope.com/u/bobot)\ **Post date:** [January 9, 2015, 12:16am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/46 "2015-01-09T00:16:04Z")
> [@Chronos](#): > > Things are not rights because the Constitution says so. We put things in the Constitution because they are rights. People in Saudi Arabia or North Korea have all the same rights that we do, by virtue of being people. Their governments just don’t recognize those rights. This is awesome, and true. American Political Conservatives aren’t going to like it at all. After all, there is no pretend “earning” of said rights involved. ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [January 9, 2015, 12:30am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/47 "2015-01-09T00:30:38Z")
> [@Little\_Nemo](#): > > I agree with you on physician-assisted suicide. While I tend to support the idea in general, I agree there’s no historical basis to the idea. It’s only relatively recently that medical technology has advanced to the point where it’s an issue. A hundred years ago, whether you lived or died was pretty much out of the physician’s hands. Not at all. Euthanasia and voluntary suicide have been around pretty much as long as people have. I’m not taking a position on it, but there is certainly an historical precedent. ---
**Author:** ![Stringbean](https://avatars.discourse-cdn.com/v4/letter/s/d6d6ee/32.png) [@Stringbean](https://boards.straightdope.com/u/Stringbean)\ **Post date:** [January 9, 2015, 4:03am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/48 "2015-01-09T04:03:57Z")
> [@John\_Mace](#): > > No, he’s making the point that expanding civil liberties is a bad thing. He’s arguing against people who use the idea of civil rights to justify things that have no clear relation to civil rights. I.E. the Supreme Court ruled in a way I don’t like so I’ll claim it’s a violation of free speech, or freedom of religion, etc. He made no indication that he is against expanding civil rights. He is saying that without definition to civil rights, anything can be expanded in the name of a right unrelated. It is a rather uncontroversial opinion to hold, in my opinion, but the fact that he is a known conservative lead immediately (see post #2) to his being attacked as though he were advocating a return to Jim Crow sensibilities. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [January 9, 2015, 4:11am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/49 "2015-01-09T04:11:09Z")
> [@Stringbean](#): > > It is a rather uncontroversial opinion to hold, in my opinion, but the fact that he is a known conservative lead immediately (see post #2) to his being attacked as though he were advocating a return to Jim Crow sensibilities. Po’ widdle conservatives keep getting their delicate feefees hurt… ☹ ---
**Author:** ![Stringbean](https://avatars.discourse-cdn.com/v4/letter/s/d6d6ee/32.png) [@Stringbean](https://boards.straightdope.com/u/Stringbean)\ **Post date:** [January 9, 2015, 4:17am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/50 "2015-01-09T04:17:22Z")
Check your (librul) privilege, yo. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [January 9, 2015, 7:01am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/51 "2015-01-09T07:01:17Z")
Civil liberties for some, miniature American flags for others! ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [January 9, 2015, 8:42am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/52 "2015-01-09T08:42:46Z")
> [@Guinastasia](#): > > Civil liberties for some, miniature American flags for others! Really, really, small ones for the fetuses . . . which they probably sell at Hobby Lobby! Flags I mean, I don’t think Hobby Lobby stocks _civil liberties_ of any size. And thus the circle is closed! CMC fnord! ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [January 9, 2015, 12:10pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/53 "2015-01-09T12:10:46Z")
Here’s my opinion on the definition of civil liberties, since that’s what the OP asked for: All civil liberties are some form of the right to be left alone. It’s an imperfect definition, but close enough. It’s the equivalent of “inherent, basic human right.” The absence of an accommodation by some other party may violate good law and sound social policy, but it does not violate a basic human right and the “goodness” or “badness” of enforcing such accommodations is purely opinion. Not so with civil liberties. Any restriction has a de facto element of “badness” and should be imposed rarely and reluctantly, with a bias toward respecting that basic right to do what you want when that activity does not directly and actively (not passively, through the absence of an accommodation) create material harm for another (which would violate their basic right to be left alone). Liberties can be in conflict, which requires sorting out by the courts. Those resolutions may also be imperfect, and certainly matters can be complicated and ambiguous. But that’s the ideal. ---
**Author:** ![WillFarnaby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/willfarnaby/32/514_2.png) [@WillFarnaby](https://boards.straightdope.com/u/WillFarnaby)\ **Post date:** [January 9, 2015, 4:13pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/54 "2015-01-09T16:13:48Z")
Civil liberties are good. Civil rights are a misnomer because often they include things that are not rights. This is where the confusion started. People started calling things “rights” that were very clearly government granted privileges. This was no accident. Everyone in the United States likes rights, and have liked rights for some time. Abusers of language that demagogues are, they started associating the word “right” for whatever they damn well please. There is no such thing as conflicting rights. If two people have rights that are conflicting, “rights” have not been adequately defined. There is no such thing as a right to someone else’s labor. There is no such thing as a right to carry a gun into a shopping mall. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [January 9, 2015, 6:58pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/55 "2015-01-09T18:58:39Z")
> [@Stratocaster](#): > > Here’s my opinion on the definition of civil liberties, since that’s what the OP asked for: All civil liberties are some form of the right to be left alone. . . While that may be true of some civil liberties, I don’t think it works in such things as voting rights, or equal access to commerce. The ones who wanted to be left alone were those practicing racial discrimination. They would thus be free to open their doors…or close them…to whomever they wanted. Protection of civil rights required an assertion of power by the government, very much the opposite of leaving anyone alone. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [January 9, 2015, 7:47pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/56 "2015-01-09T19:47:46Z")
> [@Stringbean](#): > > It is a rather uncontroversial opinion to hold, in my opinion, but the fact that he is a known conservative lead immediately (see post #2) to his being attacked as though he were advocating a return to Jim Crow sensibilities. . . . That’s not how I read post #2. It raises a question fair in context. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 9, 2015, 8:25pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/57 "2015-01-09T20:25:14Z")
> [@Little\_Nemo](#): > > How about issues of government classification of information? My understanding (and I may be wrong) is that the courts have generally given the government a pretty low standard to meet in order to justify classifying information. Does this amount to a de facto “rational basis” standard? No. See _Military Audit Project v. Casey_. Courts must accord “substantial weight” to an agency’s determination but the burden is on the agency to sustain its determination with a specific claim in an affidavit. That’s a more stringent standard than rational basis, in which the courts uphold a law if there is a rational relationship between it and a legitimate government interest, _even if that relationship is not specifically advanced by the government._ ---
**Author:** ![Jonathan\_Chance](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jonathan_chance/32/701_2.png) [@Jonathan\_Chance](https://boards.straightdope.com/u/Jonathan_Chance)\ **Post date:** [January 10, 2015, 12:09am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/58 "2015-01-10T00:09:52Z")
> [@jayjay](#): > > Po’ widdle conservatives keep getting their delicate feefees hurt… ☹ Enough with the talking down to people, please. It does nothing except make you look bad and hurt the discussion. No warning but don’t do it again. ---
**Author:** ![jayjay](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jayjay/32/6765_2.png) [@jayjay](https://boards.straightdope.com/u/jayjay)\ **Post date:** [January 10, 2015, 2:20am UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/59 "2015-01-10T02:20:54Z")
Non-warning acknowledged. ---
**Author:** ![Stratocaster](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stratocaster/32/16393_2.png) [@Stratocaster](https://boards.straightdope.com/u/Stratocaster)\ **Post date:** [January 10, 2015, 3:24pm UTC](https://boards.straightdope.com/t/against-civil-liberties-creep/709180/60 "2015-01-10T15:24:23Z")
> [@Trinopus](#): > > While that may be true of some civil liberties, I don’t think it works in such things as voting rights, or equal access to commerce. > > The ones who wanted to be left alone were those practicing racial discrimination. They would thus be free to open their doors…or close them…to whomever they wanted. Protection of civil rights required an assertion of power by the government, very much the opposite of leaving anyone alone. This may seem like a semantic quibble (certainly I support many measures to restrict racist practices), but I’d classify such measures as social policy. I don’t think any citizen has the basic human right to eat in someone else’s restaurant. Frankly, I’d say the restaurant owner has the right to serve whomever he’d prefer, however abhorrent I might find his choices. If we choose to restrict his ability to do so, it should at least be done acknowledging we’ve imposed society’s will on someone, forcing him to make an accommodation to someone else. If that’s good social policy, it should be because the benefit greatly outweighs the imposition. Not because the minority has a right eat at some other guy’s restaurant. [Previous page](https://boards.straightdope.com/t/against-civil-liberties-creep/709180.md?page=2) [Next page](https://boards.straightdope.com/t/against-civil-liberties-creep/709180.md?page=4)